Contractor Compliance (Workplace Safety Wednesdays - Nov 2013)

Fisher & PhillipsLLP
ATTORNEYS AT LAW

Solutions at Work®

Workplace Safety Wednesdays:
Monitoring MSHA Updates

Presented by:

Guest Speaker:

Matthew R. Korn

Karen Hilliard, ASC, MESH

C: (571) 455-6350; O: (803) 255-0000

mkorn@laborlawyers.com
www.workplacesafetyandhealthlaw.com

Vice President, Business Safety Services, Inc.
(919) 930-1934
karen@businessafetyservices.com
www.businesssafetyservices.com

www.laborlawyers.com
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Who is an operator? A miner?
• Section 3 of the Mine Act defines “operator” and “miner”:
• (d) "operator" means any owner, lessee, or other person
who operates, controls, or supervises a coal or other mine
or any independent contractor performing services or
construction at such mine;
• (g) "miner" means any individual working in a coal or other
mine
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Do contractors have to comply?

• Section 2(g)(2) - To require that each operator of a coal or
other mine and every miner in such mine comply with such
standards . . . (this includes contractors by definition)
• There are standards that apply specifically to contractors!

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What must the contractor provide the
production operator?
•

30 C.F.R. § 45.4(a) Each independent contractor shall provide the productionoperator in writing the following information:
(1) The independent contractor's trade name, business address and business
telephone number;
(2) A description of the nature of the work to be performed by the independent
contractor and where at the mine the work is to be performed;
(3) The independent contractor's MSHA identification number, if any; and
(4) The independent contractor's address of record for service of citations, or other
documents involving the independent contractor.
(b) Each production-operator shall maintain in writing at the mine the information
required by paragraph (a) of this section for each independent contractor at the mine.
The production-operator shall make this information available to any authorized
representative of the Secretary upon request.

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Strict/dual liability

• Regulations under Mine Act are subject to strict
liability standard
• What does this mean for contractors?
• What does this mean for operators?

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Common contractor infractions…
•

Unfamiliarity with the 30 CFR standards and the Mine Act.

•

Approved contractors bringing untrained employees on the mine site.

•

Contractors not supplying correct PPE, if any at all, to their employees.

•

Contractor employees not tasked trained and trying to figure out procedures
with little to no guidance.

•

Contractors not using fall protection where there is a “danger of falling.”

ATTORNEYS AT LAW
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Common contractor infractions cont’d…
•

Noncompliant subcontractors working for complaint contractors.

•

Contractors being left alone on site after hours without a competent person
present.

•

Contractors completely unaware of mine emergency protocols.

•

Failure to conduct pre-shift inspections on mobile equipment.

•

Confusion over whether the mine operator or contractor conducts the workplace
exam for that work area.

•

Mine Operators believing that contractors are not their responsibility.

ATTORNEYS AT LAW
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Phone (803) 255-0000

Most frequently cited standards at
surface facilities – RED FLAGS!
• 56.14107(a) – Guarding / moving machine parts

• 56.12004 – Electrical conductors
• 50.30(a) – Quarterly employment reports

• 56.14100(b) – Equipment defects affecting safety
• 56.14132(a) – Horns and backup alarms
• 56.20003 - Housekeeping
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Who trains the contractors?
• 30 CFR § 46.12
Responsibility for independent contractor training.
(a)(1) Each production-operator has primary responsibility
for ensuring that site-specific hazard awareness training is
given to employees of independent contractors who are
required to receive such training under § 46.11 of this part.

ATTORNEYS AT LAW
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Phone (803) 255-0000

What’s required for site specific
training?
• Is your training generic, or have your really analyzed your
mine’s site specific health and safety risks such as: unique
geologic or environmental conditions; recognition and avoidance
of hazards such as electrical and powered-haulage hazards;
traffic patterns and control; restricted areas; warning and
evacuation signals; evacuation and emergency procedures, or
other special safety procedures?
• The site-specific training should be tailored to address the
hazards to be encountered by the contractor.

• Please refer to 46.11 & 48.11 for further clarification.
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Elements of effective hazard training
• Assure your company policies and procedures are clearly
stated, give contractors copies as needed.
• Provide additional information, such as your physical
address, your competent persons/emergency contact
information and how to use communication systems at
your site.
• Conduct an evaluation to ensure understanding, and
provide copies of all completed training documents used.
(Very important so the contractors can use them for
reference, such as site maps and emergency evacuation
routes.)
ATTORNEYS AT LAW
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But wait, there’s more!
• 30 CFR § 46.12
Responsibility for independent contractor training.
(2) Each production-operator must provide information
to each independent contractor who employs a person
at the mine on site-specific mine hazards and the
obligation of the contractor to comply with our
regulations, including the requirements of this part
(comprehensive training).
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Whose responsibility is it?
•

(b)(1) Each independent contractor who employs a miner,
as defined in § 46.2, at the mine has primary responsibility
for complying with § § 46.3 through 46.10 of this part,
including providing new miner training, newly hired
experienced miner training, new task training, and annual
refresher training.
(2) The independent contractor must inform the
production-operator of any hazards of which the contractor
is aware that may be created by the performance of the
contractor's work at the mine.
ATTORNEYS AT LAW
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What’s at stake?
• Spencer Quarries, Inc., 32 FMSHRC 644 (2010) (ALJ)
– Mine operator committed an S&S violation of 46.12(a)(2) where
11 employees of a contractor, working at a mine site for up to
one year had not received training.
– Mining company did not inform the contractor that it had to have
a training plan in place so that its employees could receive new
miner training.

ATTORNEYS AT LAW
Solutions at Work®

Phone (803) 255-0000

What about Part 48 - notification?
• Oil-Dri Production Co., 32 FMSHRC 1761 (2010) (ALJ).
– Contractor’s employees did not have new miner training.
– Mine operator was fined $100 and a 104(g) withdrawal order
upheld by the ALJ.
– Standard, stock language in contract is not enough!

ATTORNEYS AT LAW
Solutions at Work®

Phone (803) 255-0000

Do they have the right docs?
•

Training plans exist

•

New miner training docs

•

Newly hired experienced miner training docs

•

New task training docs

•

Annual refresher training docs

•

Site-specific hazard awareness training docs

•

First aid training docs

ASSURE THE RECORDS ARE ACCURATE

ATTORNEYS AT LAW
Solutions at Work®

Phone (803) 255-0000

More paperwork?
•
•
•
•
•
•
•
•
•

MSHA Quarterly Employment Reports. MSHA 7000-2 Form
Annual ground continuity and resistance tests
Monthly and Annual Inspection of Fire Extinguishers
Examination of Working Places Record if required
Pre-Shift Inspection records of self-propelled mobile equipment
Hazard Communication Program and MSDS/SDS
Pressure Vessel/Boiler Certification if required
Respiratory Protection Program/Fit Test records if required
Hearing Conservation Program required if over exposure is above the
"action level”
• MSHA Reportable Accident Reports (MSHA 7000-1 Form)
ATTORNEYS AT LAW
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Contractor pre-qualification and
compliance monitoring
• In-house resources: requires extensive
investment in personnel and recordkeeping
• Third Party Verification Services: Must be
familiar with MSHA standards to ensure that
contractors are compliant on a continuing basis.
• If you use a third party, ensure they pre-qualify
the actual employees of the contractor not just
the company, i.e., training certificates.
ATTORNEYS AT LAW
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Phone (803) 255-0000

More verification “best practices”
• Contractor documents should be kept on file for validation
and inspection.
• Hold-harmless agreements
• Mine operators should verify contractor history on the
MSHA web site prior to employment
– Consider contractor’s prior citation history, as they could potentially
increase your history for joint citations received at your site.
ATTORNEYS AT LAW
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Phone (803) 255-0000

Work practices
• Contractors, like mine operators, must have the right
equipment, tools or PPE for the job.
• Contractor work practices should be monitored
during the day by the operator.

• Unsafe behaviors and conditions must be corrected.
• Contractor employees should not work alone at a
mine site unless a competent person is left in
charge.
ATTORNEYS AT LAW
Solutions at Work®

Phone (803) 255-0000

METAL/NONMETAL MINE FATALITY - On November 1, 2012, a 30-year old contract driller
with 6 years of experience was killed at a common shale operation. The victim apparently
attempted to thread a new drill steel manually, with the use of a strap and the drill head
rotating, when the rotating steel entangled him.

ATTORNEYS AT LAW
Solutions at Work®

Phone (803) 255-0000

Contractor working alone
• 2012 Fatality #17 both the mine operator and the
contractor was issued 104(d)(1) citations for the
employee working alone. The contractor has been
assessed $138,500 for working alone (contested). The
mine operator is waiting on their assessment.
• MSHA: The driller was assigned to perform work alone
in the quarry where hazardous conditions existed that
would endanger his safety.
• MSHA: The mine operator failed to ensure that the
driller could communicate with others, could be heard, or
could be seen while working in the quarry.
ATTORNEYS AT LAW
Solutions at Work®

Phone (803) 255-0000

METAL/NONMETAL MINE FATALITY - On April 4, 2013, a 30-year old general foreman
with 6 years of experience was killed at a copper ore operation. An excavator was being
used to position a 36-inch diameter by 40-foot long section of pipe to connect it to another
section of pipe. The pipe, attached to excavator by a lifting strap, shifted and fell on victim.

ATTORNEYS AT LAW
Solutions at Work®

Phone (803) 255-0000

Task training fatality
• 2013 Fatality #4 both the mine operator and the
contractor was issued 104(d)(1) citations for lack of
task training. Both are not accessed yet.
• MSHA: The mine operator and the contractor were
aware of the Part 48 training requirements. The
mine operator engaged in aggravated conduct
constituting more than ordinary negligence in that
they were aware of the training requirements and
directed the installation of the steel pipe, yet failed to
provide the required training prior to having the task
performed.
ATTORNEYS AT LAW
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Phone (803) 255-0000

ATTORNEYS AT LAW

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Q&A Period . . .
Join us next month!

Presented by:

Guest Speaker:

Matthew R. Korn

Karen Hilliard, ASC, MESH

C: (571) 455-6350; O: (803) 255-0000

Vice President, Business Safety Services, Inc.

mkorn@laborlawyers.com
www.workplacesafetyandhealthlaw.com

(919) 930-1934
karen@businessafetyservices.com
www.businesssafetyservices.com

This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for
general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have.

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Contractor Compliance (Workplace Safety Wednesdays - Nov 2013)

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