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Insights on the latest MSHA developments

By |  January 21, 2016

Mine Safety and Health Administration (MSHA) rules and regulations are continuously of interest to aggregate producers.

Mike Heenan, an attorney at Ogletree Deakins who also serves as Pit & Quarry’s legal editor, offered his latest insights on MSHA developments in a Q&A session at the recent Pit & Quarry Roundtable & Conference in Fort Lauderdale, Fla. Heenan discussed workplace examinations, civil penalties, Rules to Live By violations and more with producers, manufacturers and allied trade representatives.

P&Q: MSHA issued a program information bulletin regarding workplace examinations, but it says this doesn’t change enforcement. Is that correct? Also, when and how does MSHA cite task-training violations? Are those going to be part of workplace examination enforcements?

Heenan: The latest interpretation on workplace examinations has changed things in serious ways. As one example, MSHA has been trying for years to make it a rule that when you do a workplace examination, you need to write down conditions in a scenario. The reason for the conditions is so the inspector doesn’t have to chase after that. Thanks to NSSGA (the National Stone, Sand and Gravel Association), this hasn’t changed yet. But instead of making workplace examinations a requirement, [MSHA] says these are best practices. It’s a best practice to have an examiner who is competent. MSHA says it’s a best practice to have a supervisor at a workplace.

In regard to task-training violations, I think they might be part of workplace examination enforcement, especially if an examination was done badly. This is just another part of the tightening up and making things tougher.

P&Q: What are the legal consequences of operators writing down conditions found during workplace examinations? Is it required that conditions be recorded?

Heenan: If you have record of a condition that’s a problem, you better have a record resolved. Too often, operators only write down what the problem was, so you have a list of problems without a list of solutions. Maybe the operator has fixed those problems listed, but they might not write that down. You have to finish up the story in writing.

P&Q: We have heard MSHA is putting operators in special enforcement categories for its Rules to Live By violations. Can you explain this?

Heenan: MSHA wants companies to be more sensitive to the Rules to Live By. Companies should be, but again, MSHA’s approach was more enforcement to make companies pay more attention. MSHA put operators in special enforcement categories for the Rules to Live By to determine if you have more or fewer violations. If you have more, you show up in red in MSHA’s records; if you have fewer, you show up in green in MSHA’s records. If you’re in the red zone, you’ll see stepped-up enforcement.

P&Q: How do MSHA’s top 10 violations compare to the Occupational Safety and Health Administration’s (OSHA) top 10?

Heenan: MSHA’s top 10 violations differ from its Rules to Live By. The violations tend to be with insulation, cover plates, switches and machine guards. It’s amazing to me in all these years that machine guards continue to be up there with other violations. It’s been my contention for a long time that MSHA should spend less time finding citations and instead finding more important things in Rules to Live By. OSHA’s top 10 violations are the same. They cite machine guards, scaffolds and ladders.

P&Q: How will MSHA’s new civil penalty rules be different when they are effective?

Heenan: The MSHA civil penalties rules are another case of MSHA wanting to reduce anything that interferes with enforcement. Currently, operators have lots of reasons to contest with enforcement action. I know [MSHA Assistant Secretary] Joe Main doesn’t appreciate the fact that operators are contesting most things. So these rules take the issue away. Inspectors now redefine negligence and reckless disregard.

P&Q: MSHA issued a policy on confined spaces. Where and how does this apply?

Heenan: There have been some very bad accidents in confined spaces. It’s shown up for the first time in MSHA, though it’s an OSHA term. The atmosphere can be bad in any confined space. MSHA says it’s important that operators have safe access, bins and hoppers enforced. I don’t think they need a full standard for this, though.

P&Q: Is it true that operators and contractors must provide MSHA inspectors with any documents they request?

Heenan: Both agencies request documents. They have administrative subpoenas sometimes that require documentation. With MSHA, you only need to provide documentation when their regulations say they must have this, even if the inspector might ask for it. There are cases in which operators include documentation with their workplace examinations, which makes inspectors happy. Inspectors often want to see records out of suspicion. It’s important today to remember that everything that has been written could potentially come back to affect you. This includes emails.

P&Q: Are there legal consequences to recording employee complaints and are those available to MSHA inspectors?

Heenan: If you get an employee complaint, you can’t ignore it in any way. We need to have a record of some kind of resolution. In MSHA’s eyes, all complaints are valid, and they don’t care about the motivation or the complaint. MSHA doesn’t care if someone’s mad at you. They just see a complaint. So treat complaints as valid, no matter what was said. Maybe some people have wild imaginations, but treat those comments with respect and be cautious about telling someone they’re wrong. If you ignore a complaint, there could be something you blow off that was actually wrong. So address complaints in a way that won’t make the person mad at you.

About the Author:

Megan Smalley is the associate editor of Pit & Quarry. Contact her at msmalley@northcoastmedia.net or 216-363-7930.

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