Fisher & PhillipsLLP
ATTORNEYS AT LAW

Solutions at Work®

Workplace Safety Wednesdays:
Monitoring MSHA Updates

Presented...
Who is an operator? A miner?
• Section 3 of the Mine Act defines “operator” and “miner”:
• (d) "operator" means any owner,...
Do contractors have to comply?

• Section 2(g)(2) - To require that each operator of a coal or
other mine and every miner ...
What must the contractor provide the
production operator?
•

30 C.F.R. § 45.4(a) Each independent contractor shall provide...
Strict/dual liability

• Regulations under Mine Act are subject to strict
liability standard
• What does this mean for con...
Common contractor infractions…
•

Unfamiliarity with the 30 CFR standards and the Mine Act.

•

Approved contractors bring...
Common contractor infractions cont’d…
•

Noncompliant subcontractors working for complaint contractors.

•

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

• 56.1...
Who trains the contractors?
• 30 CFR § 46.12
Responsibility for independent contractor training.
(a)(1) Each production-op...
What’s required for site specific
training?
• Is your training generic, or have your really analyzed your
mine’s site spec...
Elements of effective hazard training
• Assure your company policies and procedures are clearly
stated, give contractors c...
But wait, there’s more!
• 30 CFR § 46.12
Responsibility for independent contractor training.
(2) Each production-operator ...
Whose responsibility is it?
•

(b)(1) Each independent contractor who employs a miner,
as defined in § 46.2, at the mine h...
What’s at stake?
• Spencer Quarries, Inc., 32 FMSHRC 644 (2010) (ALJ)
– Mine operator committed an S&S violation of 46.12(...
What about Part 48 - notification?
• Oil-Dri Production Co., 32 FMSHRC 1761 (2010) (ALJ).
– Contractor’s employees did not...
Do they have the right docs?
•

Training plans exist

•

New miner training docs

•

Newly hired experienced miner trainin...
More paperwork?
•
•
•
•
•
•
•
•
•

MSHA Quarterly Employment Reports. MSHA 7000-2 Form
Annual ground continuity and resist...
Contractor pre-qualification and
compliance monitoring
• In-house resources: requires extensive
investment in personnel an...
More verification “best practices”
• Contractor documents should be kept on file for validation
and inspection.
• Hold-har...
Work practices
• Contractors, like mine operators, must have the right
equipment, tools or PPE for the job.
• Contractor w...
METAL/NONMETAL MINE FATALITY - On November 1, 2012, a 30-year old contract driller
with 6 years of experience was killed a...
Contractor working alone
• 2012 Fatality #17 both the mine operator and the
contractor was issued 104(d)(1) citations for ...
METAL/NONMETAL MINE FATALITY - On April 4, 2013, a 30-year old general foreman
with 6 years of experience was killed at a ...
Task training fatality
• 2013 Fatality #4 both the mine operator and the
contractor was issued 104(d)(1) citations for lac...
Fisher & PhillipsLLP
ATTORNEYS AT LAW

Solutions at Work®

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

Presented by:

Guest Spea...
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Contractor Compliance (Workplace Safety Wednesdays - Nov 2013)

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During this November webinar, Matthew Korn and Karen Hilliard, Business Safety Services, discussed contractor liability, including tips regarding contractor compliance with MSHA regulatory requirements. Matthew and Karen also focused on reducing operator liability for contractor citations and creating a contractor compliance program for your Company. Whether you are an operator or a contractor, you won't want to miss this opportunity to learn more about contractor compliance.

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Contractor Compliance (Workplace Safety Wednesdays - Nov 2013)

  1. 1. 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 Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas · Los Angeles Louisville · Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC
  2. 2. 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 Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  3. 3. 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! Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  4. 4. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  5. 5. 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? Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  6. 6. 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.” Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  7. 7. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  8. 8. 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 Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  9. 9. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  10. 10. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  11. 11. 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.) Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  12. 12. 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). Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  13. 13. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  14. 14. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  15. 15. 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! Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  16. 16. 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 Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  17. 17. 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) Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  18. 18. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  19. 19. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  20. 20. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  21. 21. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  22. 22. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  23. 23. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  24. 24. 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. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
  25. 25. Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work® 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. Fisher & PhillipsLLP www.laborlawyers.com Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · ColumbusATTORNEYS AT LAWFort Lauderdale · Gulfport · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Dallas · Denver · Louisville · Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · at Work® Solutions Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Phone (803) 255-0000

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