By: Nicholas W. Scala

Mine operators can look to MSHA’s 2015 enforcement data to identify patterns in the most frequently cited safety and health violations, making it easier to avoid costly citations and possible long-term legal ramifications. Data on the top 20 cited MSHA standards are available for side-by-side comparison here, offering a better picture of the coming year’s trends.

Some familiar patterns emerge from the data and mine operators should closely examine the top of the most cited list, including those for potential exposure to moving machine parts, housekeeping and machine guarding related regulations. Year after year, these are heavily cited standards because MSHA continues to press heavy enforcement to address them. At the same time, alleged violations related to these standards often carry more serious allegations regarding negligence on the part of operators. MSHA considers the operators “on notice” that these are serious and common workplace hazards.

Take, for example, a few of the most cited regulations for sand and gravel surfaces operations last year: moving machine part guarding, 56.14107(a), tops the list in that segment of industry with 1,738 alleged violations, or 9.48 percent of the total written for that type of operation. Exposure of electrical conductors, 56.12004, is second at 1,225 alleged violations, or 6.68 percent. Safety defect correction, 56.14100(b), ranks third on this list, with 842 alleged violations, or 4.59 percent.

It’s clear from the above sample of the overall data that MSHA continues to strongly emphasize areas that are historically heavily cited. Continue reading →

By: Nicholas W. Scala

A key recent decision, vacating two MSHA citations against a drilling contractor, underscores how a refusal by inspectors to consider the proven safety practices of a specific business, like contract drilling, can lead to long, costly litigation for the companies involved.

Industry’s arguments carried the day, but only after a lengthy process in which attorneys took the case all the way to the Federal Mine Safety and Health Review Commission’s five-member panel. Not only are cases like this costly to the employer, but also highly detrimental as it makes bidding on new jobs much more difficult while violations stay on the record. Such a victory for the contract drilling company is especially bittersweet, given the strongly worded decision by the Administrative Law Judge (“ALJ”), which MSHA appealed, therefore requiring the drilling contractor to undergo further litigation

Fortunately, the Federal Mine Safety and Health Review Commission upheld a judge’s decision that MSHA had failed to carry its burden of proof in showing that a drilling contractor violated 30 C.F.R. § 56.7012, which states that “while in operation, drills shall be attended at all times.” The panel upheld an ALJ’s ruling that the agency had not shown that a violation of the word “attended,” as used in the standard, occurred in the situation in dispute.

That’s because the standard is ambiguous with respect to whether “attended” means the drill operator must remain within arm’s reach of the drill’s controls at all times, the judge held. A definition which the inspector attempted to enforce without a basis in law or policy to do so.

At issue were two citations against Drilling and Blasting Systems Inc. (“D&B”), which in March 2012 was drilling blast holes at Lucky Stone Corp.’s granite quarry in Pittsboro, N.C.

An MSHA inspector observed the D&B drill operator outside of the drill cab while the drill was in operation on the drill bench, with the operator walking towards the drill from about 18 feet away. Continue reading →

By: Nicholas W. Scala

MSHA is continuing the increased enforcement of the Metal/Non-Metal (M/NM) industry. The agency recently began conducting what inspectors have referred to as “blitz” inspections at mines across the country. During a blitz, MSHA may arrive on site with multiple inspectors to conduct simultaneous and widespread inspections of a mine, similar to what the industry now recognizes as an impact inspection.

Whether a new enforcement tool or disguised impact inspection, the blitz is yet another development for MSHA’s enforcement of the mining industry as a whole, with a consistently growing emphasis on M/NM operators. The agency continues to cite the pattern of fatal injuries which occurred between October 2013 and August 2015 as the main impetus behind the increased enforcement. Unfortunately, MSHA views the fact that 2015 saw the fewest mining deaths and the longest consecutive stretch of days without a fatality (August 3 – December 15, 2016) in the agency’s history, as evidence of the success of increased enforcement’s more so than operators’ continued diligence towards safety.

No matter how misguided the reasoning behind MSHA’s continued spike in enforcement, multi-inspector inspections pose a unique logistical issue for any operator who wishes to exercise their right accompany the inspector during the mine inspection, under §103(f) of the Mine Act. For the vast majority of operators, there is most likely one, or maybe two, plant managers, superintendents, foremen, safety directors or designated operator’s representative trained to accompany a MSHA inspector around the mine. So what happens if MSHA arrives on site with five or six inspectors?

With that in mind, the multi-inspector inspections will most likely be considerably shorter than a regular health and safety inspection due to the number of inspectors on site and the usually a more specific narrowed scope of the inspection. These inspections are not usually meant to be a comprehensive, wall-to-wall inspection. Therefore, the inspectors may only inspect certain portions of the mine site for certain conditions such as ground control or guarding, albeit simultaneously.

A best practice for handling any inspection is to assign a superintendent or foreman to accompany the MSHA inspector(s) on their respective inspection. With multiple inspectors on site, it becomes necessary to ensure the mine can send an individual with each inspector, or inspection group, venturing into the mine. Continue reading →