Transcript MSHA Citation Practices: Winning the “Gotcha Game”

MSHA Rules to Live By
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams, PC
www.safety-law.com
301-595-3520
“Rules to Live By”
Enforcement Initiative
MSHA launched fatality-prevention campaign on March
15, 2010
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Inspectors being “trained” for enforcement focus
Materials available on internet (www.msha.gov)
Covers 13 M/NM and 11 Coal standards which MSHA
maintains cause fatalities
Agency will encourage increased scrutiny for violations
of these standards
MSHA instructing inspectors to “review” carefully the
gravity/negligence findings (expect presumptive S&S
findings and high negligence because of “advance
warning” of this campaign)
All violations will be considered for special assessments
(higher penalties, outside Part 100 formula)
Rules to Live By:
Standard Selection
MSHA’s analysis targets standards frequently cited in
fatal accident investigations in 9 accident categories
– Falls from Elevation
– Falls of Roof and Rib
– Operating Mobile Equipment (Surface)
– Operating Mobile Equipment (Underground)
– Maintenance
– Lock and Tag Out
– Struck by Mobile Equipment (Surface)
– Struck by Mobile Equipment (Underground)
– Blocking Against Motion
Rules to Live By: M/NM Standards
56.9101 - Operating speeds and control of equipment
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Type of condition(s) leading to fatalities:
• Equipment operator not maintaining control of equipment while in motion.
• Operating speeds not consistent with the conditions.
56.12017 - Work on power circuits
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Type of condition(s) leading to fatalities:
• Power circuits not de-energized before working on circuits.
• Switches not locked out or other measures taken to prevent power circuits
from being energized without knowledge of individuals working on them.
56.14101(a) - Brake performance
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Type of condition(s) leading to fatalities:
• Service brakes not capable of stopping and holding equipment with
its typical load on maximum grade it travels.
• Parking brakes not capable of holding equipment with its typical load
on maximum grade it travels.
• A brake system component not maintained in a functional condition.
Rules to Live By: M/NM Standards
56.14105 - Procedures during repairs or maintenance
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Type of condition(s) leading to fatalities:
• Machinery or equipment not blocked against motion during repairs or
maintenance.
• Equipment not effectively de-energized.
• Persons not protected against hazardous motion during testing or
adjustments.
56.14130(g) - Seat belts shall be worn by equipment operators
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Type of condition(s) leading to fatalities:
• Failure to wear seatbelts while operating mobile equipment.
56.14131(a) - Seat belts shall be provided and worn in haul trucks
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Type of condition(s) leading to fatalities:
• Seatbelts not worn when operating or riding in haul truck.
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NOTE: MSHA PPM says seat belt violations presumptively S&S, and failure
to provide seatbelts will be 104(d) in absence of mitigating circumstances!
Types of violations meeting special assessment criteria are:
1. Violations that are 104(d)s
2. Violations contributing to serious injury/fatality
3. Violations cited as “imminent danger” (107A)
4. Violations having extraordinarily high gravity
Rules to Live By: M/NM Standards
56.14205 - Machinery, equipment, and tools used beyond design
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Type of condition(s) leading to fatalities:
• Using machinery, equipment, or tools beyond design capacity intended by
manufacturer.
56.14207 - Parking procedures for unattended equipment
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Type of condition(s) leading to fatalities:
• Mobile equipment left unattended and controls not placed in park position.
• Provided parking brake not set.
• Mobile equipment parked on grade and wheels/ tracks are not chocked or
turned into a bank.
56.15005 - Safety belts and lines
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Type of condition(s) leading to fatalities:
• Persons not wearing fall protection when exposed to fall hazard.
56.16002(c) - Bins, hoppers, silos, tanks, and surge piles
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Type of condition(s) leading to fatalities:
• Persons entering bins, tanks, hoppers or surge piles not wearing fall
protection where there is fall hazard.
• A second person not provided to tend lifeline.
• Persons entering bins and hoppers when flow of materials has not ceased
and/or supply and discharge equipment not locked out.
• Safe access in and around working areas not provided.
Rules to Live By: M/NM Standards
56.16009 - Persons shall stay clear of suspended loads
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Type of condition(s) leading to fatalities:
• Persons failing to stay clear of suspended loads.
56.20011 - Barricades and warning signs
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Type of condition(s) leading to fatalities:
• Barricades or warning signs not posted at all approaches
where health or safety hazards exist that are not immediately
obvious.
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NOTE: PPM indicates this refers to hazards such as “heat, acids,
gases, dusts, noise and radiation.” ALL areas of mine should be
checked for “imperceptible health hazards.”
57.3360 - Ground support use
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Type of condition(s) leading to fatalities:
• Necessary ground support not designed, installed, and
maintained in areas where persons work or travel.
Rules to Live By:
Engineering “Recommendations”
MSHA has published 11 pp. of
“recommendations” on website concerning these
standards
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will failure to adopt constitute knowing/willful
“violation”?
Recommendations go beyond plain language of
codified standards
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does this constitute illegal rulemaking by MSHA?
Is knowledge of these new “recommendations”
imputed to all mine operators by virtue of being
on www.msha.gov?
Examples of “Recommendations”
Use rear cameras to prevent over-travel of equipment at
dump points
Use of Collision Avoidance and Proximity Detection
Systems
Installation of prominent emergency shutdown/motion
arrest switches on mobile equipment
Installation of high-back seats with headrest support
Keeping operator manuals in cabs of all mobile
equipment (with weather protection) and require them to
be read by operator before equipment use
Use solar powered signs for improved night warnings
Establish road grade limits with precautions for grades >
10 percent, and eliminate grades > 15 percent
Examples of “Recommendations”
Use remote controlled LHD design considerations
Install boom-side barriers to prevent operators from
exiting on boom side and in pinchpoint areas
Lockout the high speed on lift trucks and other normally
slow-speed equipment
Have drill station man in position switch and panic bar
installations at drill head area
For UG roof control, use beam straps (supported top),
jack release rope (unsupported top), install additional
supports in last row as precautionary breaker point, and
hang second row streamers
Examples of “Recommendations”
Tie-off when operating manlifts, working around access
areas of floors/walls, scaffolds, bins, hoppers, bulk
tankers
Install “properly sized” working platforms for
maintenance of jaw crushers
Install designed platform for tarping trucks
Use 100 percent tie-off fall protection systems, and
portable tie-off systems on skid mounts
Use remotely operated tanker truck manhole covers
When working around water, use life jackets or other
PFD at all times, and equipment miners with wateractivated alarm that transmits distress signal to a
dispatcher/operations station.
Examples of “Recommendations”
Ensure arc flash protection
Ensure adequate water for fire fighting
Use powered lifting aids for rail track installation
Position equipment as far away from highwalls as
possible during operation and maintenance
Tagout equipment and take the keys during maintenance
(mechanical)
Use GFCIs to prevent electric shock and identify faults
Use auxiliary power source interlocks to prevent shock
hazards on draglines and other equipment
Examples of “Recommendations”
Use glow in the dark paint to make people
and equipment visible at night
Adopt visitor communication and safety
procedures
Maintain continual two-way
communications at all times
Use telescopic poles and flags for vehicle
visibility
More to Come?
In wake of Massey disaster that killed 29 miners,
Congress will hold MSHA oversight hearings
Some members of Congress calling for new
legislation to strength Mine Act
Likely some version of S-MINER will be
reintroduced, including elements from DOL “wish
list”
Enforcement provisions likely to cover all mines
(not just coal)
S-MINER 2007 Elements
Would require posting bond for many civil penalty cases in order to
have right to contest citations/orders
Would require mine operators to pay contractors’ civil penalties if
contractors default
Would bar attorneys from representing both company and its agents
(leaving supervisors without counsel during initial investigations in
most cases)
Would give MSHA enhanced subpoena power (increasing “fishing
expeditions”)
Would add new $250,000 penalty for Pattern of Violations – on top
of underlying civil penalties!
Amendment to House bill would put all penalty revenues in “Trust
Fund” to finance MSHA inspections/investigations
DOL “Wish List” for S-MINER
Establish a new definition for significant and substantial violations so
that all are presumed to be S&S unless they are technical or
operator can prove they don’t threaten safety or health;
Establish a new definition for unwarrantable failure violations so that
such can be the basis for a citation if the operator knew or should
have known of the condition;
Include a general duty clause to authorize MSHA to address
hazards (e.g., ergonomics) not authorized by existing standards;
Expand MSHA’s jurisdiction to include mixed use roads and
reclamation;
Establish a rebuttable presumption of discrimination when the
asserted adverse action occurs within six months of a protected
activity;
DOL “Wish List”
Provide greater authority for collection of outstanding
penalties from operators no longer engaged in mining
activities at the cite at which original violations occurred;
Provide authority for promulgating a regulation requiring
operators to obtain a license from MSHA to mine;
Mandate for ‘easy trials’ before the Mine Safety Review
Commission for certain less serious violations;
Prohibit Commission reviews of settlements unless
challenged within 30 days;
Provide Commission with authority for awarding fees and
legal costs to MSHA when any portion of an operator’s
contest is frivolous, abusive or dilatory.
QUESTIONS?
Adele L. Abrams, Esq., CMSP
301-595-3520
[email protected]