Complimentary Webinar: What to Expect from an MSHA Investigation

On July 17, Justin Winter will present this webinar where we will cover the various types of MSHA investigations including the more common “Accident” and “Hazard Complaint” investigations, and those performed by its Special Investigations Department, such as 110(c) “Knowing/Willful Violations” and 105(c) “Discrimination Complaints.” We will discuss the investigation process from start to finish, as well as the litigation process and potential consequences for mine operators and management.   You can register here.  We hope you will join us!

MSHA Requests Information on Technology Necessary to Improve Miner Safety

On June 25, 2018, MSHA issued a request for data regarding new or existing technologies that can help improve miner safety. The Request for Information (RFI), which was published in the Federal Register on June 26, 2018, centers on mitigating incidents involving mobile equipment and belt conveyors at surface and underground mines. According to David Zatezalo, Assistant Secretary for MSHA, “the Trump Administration is committed to the health and safety of America’s miners. Through the deployment of modern technologies, such as proximity detection, we can help ensure that miners return home safely at the end of their shifts…MSHA is also interested in learning more about how seat belts can be more widely used in mining operations to prevent injuries.” The mobile equipment focused on in the RFI includes front-end loaders, bulldozers, and trucks. The conveyor belt focused centers on entanglement accidents and fatalities that have persisted despite enforcement initiatives aimed at guarding violations.

MSHA will hold stakeholder meetings in order to receive direct feedback from the mining community. Technological advances in seatbelts, warning devices, visibility aids, and other such engineering solutions will be reviewed and analyzed by the agency. In addition to technological remedies, best practices and training will also be discussed at the meetings. This RFI should not come as a surprise to the mining community, as Mr. Zatezalo discussed his commitment to technology and education as potential key focuses of MSHA under his watch during the confirmation process.

MSHA Continues to Solicit Information on Underground Miner Exposure to Diesel Exhaust

MSHA continues to request information from underground stakeholders concerning the exposure of underground miners to diesel exhaust. The original notice and request for information was published on June 8, 2016. The motivation behind MSHA’s request for information and data stems from a joint study conducted by the National Cancer Institute and the National Institute for Occupational Safety and Health in March 2012. The study examined 12, 315 miners in 8 metal/nonmetal facilities for the purpose of determining whether breathing diesel exhaust could lead to lung cancer and/or other respiratory health issues. The study determined that diesel exposure increased miners’ risk of death from lunch cancer, and as a result, MSHA issued a request from stakeholders in an effort to review the original underground diesel particulate matter standard passed in 2001, and the Metal/Non-Metal diesel particulate matter standard passed in 2006. This is an initiative put forth by the previous MSHA administration. However, the new administration has not indicated that it would withdraw the RFI, or put a freeze on the comment period.

On March 26, 2018, MSHA extended the comment period to March 26, 2019. MSHA received numerous requests from stakeholders to extend the comment period following MSHA open hearings, as well as a meeting of the partnership formed by MSHA NIOSH which included members of the mining industry, diesel engine manufacturers, academia, and representatives of organized labor. Following the Workplace Examination Rule for Metal/Non-Metal mines goes into effect, the DPM rule evaluation will be the most significant rulemaking agenda topic on the MSHA schedule. The effective date for the workplace examination rule is June 2, 2018, and so MSHA is expected to turn its focus to the DPM rule evaluation early summer, 2018.

MSHA Issues Final Rule on Changes to the Examinations of Working Places in Metal and Nonmetal Mines

In a Final Rule published by the Mine Safety and Health Administration (“MSHA”) on April 9, 2018, the agency amended certain changes made to the Examinations of Working Places in Metal and Nonmetal Mines final rule which was published on January 23, 2017.  The updated rules were set to go into effect on May 23, 2017, but MSHA delayed the effective date several times and eventually stayed the rule to June 2, 2018.

MSHA sought this extension and proposed a limited reopening of the rulemaking record to allow additional comments on the scope of the changes to the examination rules. Specifically, MSHA was interested in further comments on when working place examinations must begin and what adverse conditions and corrective actions that must be included in the working place examinations record.  The comment period on these proposed limited changes closed on November 13, 2017 and MSHA conducted several public hearings to provide members of the public an opportunity to offer comments.

Now with the comment period closed, MSHA has finalized the following revisions to the rule which will go into effect starting June 2, 2018:

  • A competent person examine each working place for conditions that may adversely affect the safety or health of miners. The working place must be examined at least once each shift, before work begins or as miners begin work in that place. MSHA will continue to permit mine operators to conduct an examination on the previous shift, but since conditions at mines can change, the rule directs operators to examine at a time sufficiently close to the start of the next shift to minimize miners’ potential exposure to conditions that may adversely affect their safety or health;
  • Promptly initiate appropriate corrective action when adverse conditions are found;
  • Promptly notify miners in affected areas if adverse conditions are found and not corrected before miners are potentially exposed;
  • Withdraw all persons from affected areas when alerted to any conditions that may present an imminent danger, until the danger is abated;
  • Create an examination record before the end of each shift that includes:

– The name of the person conducting the examination;

– Date of the examination;

– Location of all areas examined;

– A description of each condition found that may adversely affect the safety or health of miners that is not promptly corrected (This final rule reduces the mine operator’s recordkeeping burden by requiring that the examination record include only a description of each adverse condition that is not corrected promptly); and

– The date when the described condition is corrected.

  • Make the examination record available to MSHA and miners’ representatives, with a copy provided upon request.

MSHA has stated that these changes to the rules provides mine operators additional flexibility in managing their safety and health programs and reduces regulatory burdens without reducing the protections afforded miners. As part of this Final Rule, MSHA has also announced that it will hold public meetings around the country to inform and educate the mining community on the requirements of the final rule.  The complete meeting schedule is listed here.

Widow of Miner Killed In Upper Big Branch Explosion Files Lawsuit Against MSHA

On April 10, 2010, Massey Energy’s Upper Big Branch underground coal mine suffered an explosion, resulting in the death of 29 miners. The investigation determined that inadequate ventilation caused a buildup of toxic gases, resulting in the explosion.  Massey Energy eventually declared bankruptcy, and the UBB mine closed for good.  Following the explosion, the families of the victims directed criticism at MSHA for not issuing a flagrant violation despite the mine’s history of receiving hundreds of MSHA citations per year, and the existence of previous methane issues in the years leading up to the explosion.  The UBB explosion impacted MSHA enforcement priorities and staffing in the year that followed, and the impact continues to affect the agency today.  On April 5, 2018, nearly eight years to the day of the accident, the widow of one of the victims filed a lawsuit against MSHA for failing to prevent the explosion and not fulfilling its duty to effectively enforce the agency’s regulations at the UBB mine.  The Plaintiff further states that the agency failed to take necessary steps to hold the mine accountable for its violation history, and acted negligently in not competently carrying out enforcement actions and inspections.

The Plaintiff cites the West Virginia Governor’s Independent Investigation Panel, initiated by former Governor Joe Manchin, which found that MSHA was aware of UBB’s inadequate ventilation system and took no action. This panel also found that MSHA did not inspect the mine in an adequate fashion.  The lawsuit further states that the panel concluded that MSHA failed to adequately perform its duties at UBB, and that this failure had a causal relationship to the explosion.

It remains to be seen how MSHA will respond to the lawsuit, given that the agency’s current leadership has been operating under a more cooperative relationship with the mining community.

MSHA Extends Period to Submit Comments on Diesel Exhaust Exposure Standards

In response to requests from the public, on March 26, 2018 the Mine Safety & Health Administration (MSHA) announced that it is reopening the public comment period to the Agency’s request for information (RFI) related to standards concerning the exposure of underground miners to diesel exhaust. Back in June of 2016, MSHA requested further information and data on approaches to control and monitor miners’ exposures to diesel exhaust in light of numerous recent studies linking such exposure to increase risk of developing and dying from lung cancer.  MSHA wanted to reevaluate the standards and exposure limits based on newer diesel powered technology and equipment being used in mining operations.  MSHA specifically wants further input from industry, labor, and other interested parties on ways to enhance control of diesel particulate matter (DPM) and diesel exhaust exposures to improve protections for miners in underground coal and metal/nonmetal mines.

MSHA held four public meetings in 2016 pursuant to this RFI and the comment period was originally scheduled to close on September 6, 2016 but then was extended to November 30, 2016. MSHA and the National Institute for Occupational Safety and Health also convened a Diesel Exhaust Health Effects Partnership (Partnership) and held several meetings with the mining industry, diesel engine manufacturers, academia, and representatives of organized labor to gather more information on the complex questions involved with this issue.  During these meetings, many stakeholders asked to reopen the rulemaking record for comment and MSHA did so through January 9, 2018.

Assistant Secretary of Labor for Mine Safety and Health, David G. Zatezalo, has acknowledged that since the closing of the RFI rulemaking record MSHA has continued to receive stakeholder requests to reopen the record and further extend the comment period on the RFI during the Partnership proceedings. In response, MSHA is reopening the record and extending the comment period to March 26, 2019.  Mr. Zatezalo noted that the reopening of the rulemaking record for public comments will allow all interested parties an additional opportunity to re-evaluate all issues related to miners’ exposure to diesel exhaust and to determine if improvements can be made.

MSHA Rolls Out New System To Improve Mine Inspections

On February 22, 2018, the Mine Safety & Health Administration (MSHA) announced that it would be instituting a new Mobile Inspection Application System (Mobile IAS) to improve and further enhance the efficiency and effectiveness of mine inspectors.  MSHA believes that the new system will enable inspectors to better carry out MSHA’s mission of promoting the health and safety of America’s miners.

The existing system has been in place for over 18 years and according to MSHA was extremely outdated and required mine inspectors to carry bulky laptops, cameras, reference material, and documentation from previous inspections.  The new Mobile IAS is based on a new Windows-based, lightweight, semi-rugged tablet with a camera, video, voice recording, touch screen, digital pen, Bluetooth, and Wi-Fi capability to facilitate data capture.  The new system should streamline the inspection process through an application built on Microsoft’s Universal Windows platform with photo capture and fillable, pre-populated forms.  In addition, it will have a service-oriented architecture for efficient data transfer among devices and the MSHA Standardized Information System.

MSHA noted that almost 1,500 federal mine inspectors and staff will benefit from the new system and technology.  David Zatezalo, MSHA assistant secretary, stated in a press release that “Enabling mine inspectors to work more efficiently means more time to focus on the health and safety of America’s miners” and that the new system “is expected to improve the quality of information by eliminating redundancy, and provide more timely information for inspectors.”

MSHA to Strengthen Scofflaw Program in order to Enforce Collection of Fines

In an op-ed published on March 6th, 2018 in the Wheeling News Register, Assistant secretary for MSHA, David Zatezalo, announced plans to prioritize the collection of unpaid MSHA fines through the agency’s scofflaw program. The MSHA Scofflaw Program was initiated in 2007 to pursue payment of unpaid MSHA fines, and the program is not simply a warning. The Scofflaw Program is an enforcement tool intended to pursue those mines and contractors who fail to pay MSHA fines, and demonstrate egregious non-compliance with the Mine Act. In these cases, MSHA works with the Department of Labor to determine whether traditional collection actions are appropriate, or if citations and/or shutdown orders should be issued. According to Mr. Zatezalo, around $67 million of unpaid MSHA fines have accrued, and it is the job of MSHA to enforce collection of the unpaid fines. Mr. Zatezalo reinforced that the agency will pursue collection of unpaid fines to the fullest extent of the law. Specifically, mines can be issued citations for failing to pay delinquent MSHA fines, and in the most serious of cases, orders can be issued to shut down production at the mine until arrangement for payment is agreed upon between the mine and MSHA. Mr. Zatezalo further stressed that even in the case of a production shutdown, miners will continue to be paid. The program apparently has not been utilized to the fullest extent since its inception. According to Mr. Zatezalo, MSHA has issued 16 citations since 2007 for failure to pay MSHA fines, and five orders requiring a mine to shut down production.

This announcement indicated that a good faith showing by a mine operator to arrange for payment of past due fines would protect against enforcement action. Therefore, it is unlikely that a citation or shutdown order will be issued prior to any attempt to arrange for payment or a payment schedule. This message reflects an air of cooperation that many believe to be building between the agency and mine operators throughout the country.

New Head of MSHA to Hold First Quarterly Stakeholder Conference Call

On February 12, 2018, new Assistant Secretary David G. Zatezalo will hold his first quarterly stakeholder/training call since being confirmed as head of the agency. This stakeholder call is one of the first formal opportunities for the mining community to interact directly with Mr. Zatezalo since his confirmation, providing a glimpse into what can be expected from the agency in terms of inspection practices and rulemaking.  During his confirmation process, Mr. Zatezalo mentioned compliance assistance, education, and increased usage of technology as areas he plans to emphasize as Assistant Secretary.  Mr. Zatezalo may mention new initiatives in these areas during the call, or respond to questions regarding future initiatives.

The upcoming call will discuss recent fatalities and close-calls, including the topics of seat belt usage and general power haulage safety, as those areas were related to four fatalities in 2017. According to an MSHA press release, speakers will further discuss the latest on the proposed workplace examination rule, currently slated to take effect on March 2, 2018.  However, with several postponements of the effective date occurring already, the mining community would not be surprised to see an additional delay in the March 2, 2018 effective date.  This topic is particularly interesting to the stakeholders, as the general consensus is that rulemaking under the new MSHA may be significantly slower that under Joe Main’s agency.  The call will also touch on the approaching deadline for proximity detection installation on continuous mining machines.

MSHA Issues Warning On Blast Safety Following Fly Rock Injuries

MSHA recently issued a safety alert regarding safe blasting procedures following serious injuries suffered by miners as a result of a premature blast. Despite being positioned a safe distance from the blast area, the shot detonated early without warning, and several miners were impacted by debris. While there were no fatalities, the miners suffered injuries of varying severity.  MSHA issued several best practice recommendations when preparing for and carrying out a blast on surface operations as a result of this incident. Considering mine-specific conditions when preparing for a blast will better enable the detonation team to protect themselves and miners than having a general and all-encompassing blasting plan. Further, planning a blast either between or after shift will lessen the chances that miners will be impacted by debris in case of an unplanned event during detonation. MSHA further recommends that the blaster be isolated from other members of the blasting team. Finally, MSHA recommends that Blast Area should as a minimum be one and a half times the furthest distance that any previous fly rock has traveled.

Blasting is a serious and potentially dangerous practice on a mine site due to the use of explosives, and it is difficult to determine the specific trajectory of fly rock during a blast. Blasting experts familiar with a mine site can be in the best position to protect the blast team and miners from hazard if the proper precautions are undertaken in the preparation phase. The MSHA best practices are guidelines blasters can look to in order to reduce the chance of injury from fly rock.