MSHA’s role in natural disasters

It seems like every day another severe natural disaster occurs somewhere in the United States.

Tornadoes, hurricanes, earthquakes, floods and wildfires can each have a devastating effect on people and property at mine sites.

But what about the Mine Safety & Health Administration (MSHA) in the aftermath of a natural disaster? Do MSHA’s safety and health standards apply when mining operations have been halted for post-disaster cleanup? Does rescue and recovery involve MSHA when it is due to a natural event?

MSHA has issued no guidance on this that we could find, but given MSHA’s expansive regulatory coverage of mining operations, we would expect MSHA to consider any natural disaster-related activity at a mine to be under its domain to the same degree as active mining. And we have seen citations issued for supposed violations related to post-disaster events and response. Here are some things to keep in mind.

Considerations

MSHA regulates just about everything on mine property, including disaster response. MSHA regulates a mine site from the time the land is prepared for mining through reclamation of the land. So activities on mine property that are necessary to recover from destructive forces of nature and return an operation to mining would fall under MSHA’s jurisdiction.

Any fatality or potentially life-threatening injury to a person on mine property must be reported to MSHA. Even where it was caused by a natural event, any fatality or injury of an individual at a mine that has a reasonable potential to cause death must be reported to MSHA within 15 minutes. Other types of “accidents” with natural causes that may trigger MSHA reporting include an entrapment of an individual for more than 30 minutes or which has a reasonable potential to cause death; unplanned flooding of a mine; and a fire on mine property.

MSHA standards apply in rescue and recovery operations. While there may be certain immediate-need rescue situations where MSHA might not question reasonable actions taken by miners and mine operators to save lives, rescue and recovery operations must take into consideration MSHA’s safety and health requirements.

Where the mine operator is involved, MSHA will require compliance during rescue and recovery operations. MSHA likely will issue a 103(k) order to control the accident scene, imposing even more stringent requirements to comply with MSHA’s directives about what can and cannot be done within the controlled area.

Changes at the mine may affect MSHA compliance. Following the disaster, new hazards may be present or hazards that are already being addressed may have been made more acute. Perform a full assessment as quickly as possible to determine whether new safety measures are needed.

In the meantime, assume there are new potential exposures until you can confirm otherwise. MSHA will focus on barricades and warning signs, workplace examinations, air monitoring and respiratory protection, and other forms of personal protective equipment.

Address potential safety risks in affected buildings. Pay particular attention to whether there may be any new structural issues to be addressed in buildings. Post warning signs and barricade suspect areas until they can be fully examined and determined to be safe.

Look for any unsafe changes in highwalls, stockpiles, impoundments or roadways. Examine ground conditions in pits and quarries and address any issues prior to permitting personnel in the area. MSHA also will expect roadway berms to be repaired and new berms to be placed where flooding or erosion created a hazard to vehicles on the road.

Contractors on site. If any contractors are to be used in the post-event reconstruction, be sure they have appropriate MSHA training under Part 46, including task training. Contractors performing construction at a surface mine who are not exposed to mining operation hazards may not need the full MSHA training, but they will still need to comply with MSHA’s other standards.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.