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Miners and marijuana
As in other industries, mining companies must contend with employees and contractors using or being influenced by illegal drugs in the workplace. Marijuana is one of the most prominent substances detected in drug screens of job applicants. Mine operators have routinely made blanket prohibitions against marijuana for safety and legal compliance. But what about marijuana prescribed for medical purposes? And what about recreational use of marijuana away from work in states that allow marijuana use without a prescription? Laws are changing rapidly. Twenty-three states have authorized medical use of marijuana and 18 states have decriminalized marijuana possession apart from medical use. Alaska, Colorado, Oregon and Washington have legalized recreational use. Fifty-seven percent of the United States population resides in states where marijuana may be used within state-imposed limitations without adverse legal consequences. Regarding employment policies, Colorado is illustrative of state reluctance to interfere with employer discretion. Employers may apply their traditional drug policies and testing procedures because state laws do not require employers to allow marijuana use, or permit people… Keep Reading
MSHA or OSHA?
Intense federal regulation of workplace safety and health began when Congress introduced civil penalties for mines with the Federal Coal Mine Health and Safety Act of 1969, and for other employers with the Occupational Safety and Health Act of 1970. The Coal Act was amended in 1977 to become the Federal Mine Safety and Health Act, with enlarged sanctions. In 2006, the Mine Improvement and Emergency Response Act further raised requirements and sanctions for mines. The Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) are Department of Labor agencies. Although MSHA’s budget approaches OSHA’s, the industrial community MSHA regulates is limited to roughly 12,000 mining and processing locations. OSHA regulates employers everywhere else. Some federal funds support optional state OSHA programs that take on enforcement of federal requirements. Based on entirely separate laws, the jurisdiction of the two agencies is mutually exclusive. Occasionally, mine inspectors will claim a right to inspect a location not previously considered a mine. Similarly, OSHA inspectors claim jurisdiction at… Keep Reading
Revising interpretations
If a federal agency has published an interpretation of a regulation, can the agency later revise that interpretation at will or is it fixed in stone? In a recent case, the U.S. Supreme Court said agencies could revise their interpretations without using procedures required for creating new regulations. The Supreme Court ended a longstanding split in opinion by the U.S. Courts of Appeals. The high court’s ruling is likely to increase the power of agencies to impose new requirements unilaterally without formal rulemaking procedures and public participation. Rulemaking procedures In our complex federal legal system, Congress creates regulatory agencies and delegates to them power to make rules and regulations. Procedures for making regulations are set forth in the Administrative Procedure Act. Sometimes, laws provide separate procedures for rulemaking. The Federal Mine Safety and Health Act provides distinct procedures for creating mandatory safety and health standards, violations of which can cause civil or criminal penalties. Failure of an agency to comply with rulemaking procedures can render a regulation invalid and unenforceable.… Keep Reading
Are you red or green?
The Mine Safety and Health Administration (MSHA) introduced a new web display. It reports operator performance regarding Rules to Live By (RLB) compliance. Operators who have a higher-than-average rate of RLB safety violations are marked in red. Those who have a lower rate than the national average are marked in green. This is a significant – and highly consequential – dividing line. Operators reported “in the red” on MSHA’s website will feel the brunt of enforcement. MSHA developed the RLB emphasis program to draw attention to violations associated with fatal accidents. MSHA believes enforcement of these standards will raise safety consciousness and reduce serious injuries and fatalities. Thirty-eight metal/nonmetal mining deaths prompted increased emphasis from October 2013 through February 2015. Increases in enforcement can be reflected in impact inspections that usually generate a high volume of citations, or “spot inspections” that focus on particular problems MSHA identifies. Operators “in the green” would experience less enforcement. Operators with no more than three RLB violations are reported in black, and they’re not… Keep Reading
Avoiding death at work
Fatal accidents are increasing in stone, sand and gravel mines. These operations have experienced 20 of the 37 fatalities since October 2013. Nine deaths occurred in mines with 10 or fewer employees. Twelve occurred in mines with 20 to 40 employees. Frequently, victims were experienced workers who made mistakes. MSHA is calling on the industry to focus on the events that commonly cause accidents. Producers can help their employees and employees can help each other by recognizing where they are most at risk. Two main categories stand out: hazards related to mobile equipment and being in insecure positions. No one thinks an accident will happen to them, but here are examples of some of the sudden fatal accidents that occurred in the last 15 months: Mobile equipment hazards ■ A haul truck driver veered off the haul road, traveled through a berm and overturned in a settling pond. ■ A driver of an articulating haul truck went through a roadway berm and into a large pond. ■ A deckhand fell… Keep Reading
Impact of MSHA penalties
A number of things can be said about MSHA penalties and the effects that penalty assessment procedures have on mine operators. Penalties are part of a company’s reputation. If an adverse event occurs that attracts media coverage, invariably a company’s compliance history and MSHA penalties are publicly reported. The larger and more numerous the penalties, the poorer the picture that emerges. Major customers are increasingly considering compliance history and mine operators often consider the MSHA history of independent contractors in connection with their hiring criteria. MSHA reviews penalty records to decide whether additional enforcement is required, such as impact inspections and pattern of violations orders. Penalties are a non-tax-deductible financial burden, and operators often do not realize exactly how points assigned to inspector findings increase the cost of penalties. Operators also sometimes miss the cost significance of too many violations. History of violations is one of six criteria considered for every penalty calculation. An operator’s history of violations in MSHA’s records is used to calculate present penalties. MSHA regulations provide:… Keep Reading
MSHA penalty controversy
MSHA conducted its first hearing on proposed changes to civil penalty regulations on Dec. 4. MSHA wants to decrease operator challenges to penalties and limit operator opportunities to have penalties overturned. The overwhelming bone of contention is MSHA’s proposal to compel imposition of its penalty point assignment criteria at all levels of later legal challenge and review. Industry commenters insisted the proposal is inappropriate and that MSHA cannot legally impose it. The Federal Mine Safety and Health Review Commission, they point out, is an independent agency that is not subject to restrictions from MSHA. Also, 10 former commissioners issued a letter detailing why attempted curtailment of commission authority would be invalid. Origin of commission authority The Federal Coal Mine Safety and Health Act of 1969 introduced penalties in response to repeated coal mine explosions. Civil monetary penalties and penalty closure orders were included as enforcement mechanisms. Monetary penalties were assessed and reviewed through the Board of Mine Operations Appeals within the U.S. Department of the Interior. When the Federal Mine… Keep Reading
The pattern of violations game
An order from William Moran, a Federal Mine Safety and Health Review Commission judge, dismissing MSHA’s pattern of violations (POV) charges against Brody Mining contains some rather interesting language. “Imagine, if you will, a contest of any sort,” Moran writes. “It could be a board game or a card game or, as in this instance, a contest to determine if a pattern of violations exists. One would expect that, before beginning such a contest, the rules would be announced in advance. But what if the rules were announced only after the game had been played? For most people ... such a contest would seem patently unfair, almost rigged.” By law, if an operator is deemed to have a pattern of violations, MSHA must issue written notice that such a pattern exists. Thereafter, every significant and substantial (S&S) violation will result in an order of withdrawal closing the affected part of the mine until the condition is corrected. The only way to stop highly disruptive orders is to undergo a complete… Keep Reading
Mine fatality causes and prevention
Here’s a breakdown of the fatal U.S. mine accidents this year through Sept. 30: Coal mines ■ Four underground employees on foot were crushed by equipment in operation. ■ Two employees were killed by unblocked equipment they worked on. ■ Two died when their equipment (haul truck, dozer) went over the edge. ■ Two employees under ground were struck by ground (rib burst). ■ One employee contacted high voltage during equipment repair (troubleshooting). Metal-nonmetal mines ■ Three truck drivers on foot were crushed by mobile equipment in operation. ■ Five employees were killed by unblocked equipment they worked on. ■ Two operators died when their equipment went over the edge. ■ Two employees, underground scalers, were fatally impacted by ground fall. ■ One employee contacted high voltage. There were other metal-nonmetal accidents, including three employees killed in falls from heights, one entangled in a drill and one killed when equipment burst during repairs. Also, one person lost his life when an embankment gave way. Focusing only on the five bulletpoint… Keep Reading
