The State of Mining Standards: An Interview With an MSHA Attorney

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Article originally published April 20, 2017, and updated for accuracy and relevance.

For every mining professional, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) is a frequently discussed topic. This organization regulates the mining industry to create safer mines through safety and health rules. 

With expected regulation changes coming from MSHA, we wanted a professional’s opinion on the state of mining standards. We sat down with Adele L. Abrams, Esq., CMSP, on March 16, 2017, to discuss the latest in MSHA standards and how the new administration may impact mining standards.
Q: Thanks for taking some time to talk with us about the current state of MSHA. What is your role and what is your involvement with the mining industry?

A: I am an attorney and a certified mine safety professional. I represent mining companies in MSHA litigation. I also represent employers who are under OSHA jurisdiction and I am president of my law office. We have offices in the D.C. area (Maryland), Denver, CO, and Charleston, WV. I’m an MSHA-approved Part 48 trainer, so I do both part 46 and part 48 training primarily for metal/nonmetal mines. We also do safety consulting, onsite safety training for companies, and safety audits.

Q: What kind of change in direction do you anticipate MSHA undergoing with the new administration?

A: I certainly expect some change in direction. Just today, President Trump’s budget was revealed and across the board there are proposed budget cuts of 21 percent for the U.S. Department of Labor. There’s not specific information that I’ve seen yet to indicate what kind of hit MSHA will take as an agency within the Department of Labor, but it’s anticipated that funding will be cut back for standards development. They’re likely to cut enforcement funding significantly.

“It’s uncertain what the effect is going to be on the roughly $8 million a year that is distributed to the states under the MSHA State Grants Program. This funding is used for training of miners and contractors, and is provided through state agencies or state departments of labor. MSHA’s Small Mine Office has already been abolished as a stand-alone office, and their personnel were rolled into the educational field services so outreach to small mines could be affected as well.

Q: Is MSHA expecting any staffing cuts with the new administration and, if so, will inspection requirements change in the mining industry?

A: One big impact is the executive order that mandated a hiring freeze in all federal agencies except for those involved in military and defense. There were already significant vacancies in some MSHA positions, certainly among inspectors. There are a lot of baby-boomer-age inspectors who retired in the last couple of years. Even last year, MSHA was holding job fairs trying to recruit additional job inspectors. They had reprogrammed some inspectors from coal mines over to the metal/nonmetal side because there really aren’t many coal mines left. The question now with the hiring freeze is whether they’ll have that flexibility to shift roles around.

“A lot will be revealed as these budget numbers get fleshed out. What they released today was a bare-bones plan, but it did show a 21 percent reduction overall for the Department of Labor, of which MSHA is a part.

Q: Has there been any discussion to attempt to update or change 30 CFR in the near future?

A: During the Obama administration, there were a number of rule-making initiatives that MSHA was involved with. The last one that came to fruition in amending 30 CFR was the Workplace Examination rule. That was released on January 17, 2017, the day it was sent over to the federal register. It technically appeared in the federal register on January 23, 2017, which was after President Trump was sworn in. That rule is on stay because of the executive orders that came out directing every agency to place a 60-day hold on any new regulations that had not gone into effect. This stay exists so that when the new agency head is appointed, they’ll have the opportunity to review and decide if they want to alter any standards. NOTE: On March 17, 2017, several mining associations filed a Petition for Review, challenging the rule in the U.S. Court of Appeals, 11th Circuit. On March 27, 2017, MSHA announced that it has extended the effective date of the workplace examination rule until July 23, 2017.

MSHA had a few other initiatives pending. The biggest by far is the proposed rule modifying the crystalline silica standard for metal/nonmetal and coal mines. OSHA put out a final rule changing its crystalline silica standard in March 2016 that’s scheduled to take effect June 23, 2017, for the construction sector and a year later for general industry. NOTE: OSHA has now delayed the effective date of its crystalline silica rule until September 23, 2017, and its rule is currently in litigation before the U.S. Court of Appeals, D.C. Circuit.

In MSHA’s regulatory agenda that came out in December 2016, it intended to issue a very similar rule to the OSHA silica standard. They intended to use OSHA’s risk assessment and peer review of the scientific literature that had already been done by OSHA in formulating its rule.

The OSHA standard took the permissible exposure limit down to 50 micrograms per cubic meter as an eight-hour time-weighted average with a 25 microgram per cubic meter action level. If MSHA were to adopt a similar limit, it would be essentially cutting the current exposure limit by 50 percent. The difference is that OSHA allows credit for personal protective equipment (PPE) after you have exhausted all feasible engineering and work practice controls. MSHA’s enforcement practice is that they do not give you credit for PPE. Therefore, mining companies would have to attain the silica exposure reduction solely through the engineering, administrative and work practice controls. There are going to be a lot of mines that cannot feasibly reduce exposures to 50 micrograms were this rule to go forward. That said, the rule may not move forward with the new administration.

OSHA allows credit for personal protective equipment (PPE) after you have exhausted all feasible engineering and work practice controls. MSHA’s enforcement practice is that they do not give you credit for PPE.

The other big rule that had been in the making was proximity detection in underground coal mines for mobile equipment. They had already adopted a similar rule for underground coal for longwall continuous mining machines, and this was going to build upon that using a lot of research from the National Institute for Occupational Safety and Health (NIOSH). They had asked in the proposed rule about whether this should be extended to underground metal/nonmetal mines. That rule is probably going to be on hold for the foreseeable future as well. Those are just a couple of the pending changes to 30 CFR that we are unlikely to see move forward. The state of the workplace exam rule really remains to be seen.

Q: In your experience as an MSHA attorney, what violations or cases have you seen that other mining companies can learn from?

A: Well, I have handled over 200 fatality cases and I don’t say that lightly. As both a safety professional and an attorney, I have learned something from every one of those cases. In my experience, unsafe acts tend to be a contributing factor to most of the fatal accidents that I’ve seen. But that does not mean that unsafe conditions didn’t play a contributing role as well.

I think that companies are often too quick to blame the victim. When they conduct a root cause analysis, they don’t reverse engineer the situation back to figure out why it happened. Why did that worker think it was okay to take a shortcut? Why did they feel that it was okay to get up there without fall protection on? Most often, the cause is inadequate task training.

I commend MSHA for putting task training on its Fatality Prevention — Rules to Live By list. One good thing that came out of President Obama’s administration was the creation of the Rules to Live By. They did a lot of study on fatal accidents over a five-year period in both coal and metal/nonmetal mines. They identified the standards that were most often identified as causal factors in these accidents. Three different iterations of the Rules to Live By were put out, adding some new rules each time on the metal/nonmetal side. By the time the program was completed under President Obama’s watch, there were 24 metal/nonmetal standards identified as being involved in fatal accidents. There are a comparable number of coal standards.

As a trainer, in the last half-dozen years, I’ve really been honing in on those standards and trying to reinforce them.If someone really wants to know what they can do to make their mine safer, start with MSHA’s Rules to Live By. For your applicable sector, look at the rules that have been highlighted by MSHA because there have been one or more deaths associated with every one of them.

If someone really wants to know what they can do to make their mine safer, start with MSHA’s Rules to Live By.

Beyond that, the things that I tend to see people getting in trouble for are shortcuts. I’ve seen several fatalities and serious accident cases related to lockout/tagout. I’ve handled probably a dozen lockout/tagout fatality cases in the mining industry over the course of my career. I’ve also handled arc flash cases where things haven’t been handled correctly in the electrical area.

Electricity is very unforgiving. One of the problems I see is that in mines, sometimes people get a little too comfortable around electricity. Sometimes they’re not bringing in licensed electricians or journeymen who have gone through appropriate electrical training. There’s a little too much casualness around doing field splices and things like that. These are not legal under MSHA rules, but they happen and people suffer the consequences.

The other thing that I frequently see in my line of work is cases related to ground control. I’m handling a case now where two miners were killed when material gave way and buried them both. Conducting good inspections of ground conditions and always having situational awareness is very important. I don’t think that is stressed enough in employee training.

Q: Over the last few months, what is the most common citation you have seen and what is your advice to overcome these challenges?

A: I have noticed MSHA putting a lot of emphasis on impoundment safety and inspections. I think that’s in part to a double-fatality case that I’m working on which involves an area that had never been previously classified by MSHA or the miners as an impoundment. This was reclassified as an impoundment after the accident. Since then, I’ve had three or four other clients who have had MSHA representatives coming to their sites trying to reclassify areas as an impoundment. Companies are also being cited for not having had an engineer come in to design the newly-classified ‘impoundment.’

Many of these have been vacated because of the lack of fair notice and due process. Imagine you’ve been inspected for the last 20 years by MSHA and they’ve always checked you off as a mine not having impoundment. If, all the sudden, they cite you for an improper impoundment, there are some constitutional due process issues inherent there.

Something that may be driving this is the Department of Homeland Security (DHS) is viewing impoundment on mines as potential terrorist targets. There’s pressure on MSHA for more complete inventories of what mines in each regional office are classified as having impoundment. As more funding goes into Homeland Security under this new budget, we may see some of these efforts ramped up. It’s unclear if the DHS themselves would come to mines to inspect mine areas or if MSHA would continue to serve as their arm.

Q: Do you have any other MSHA hot topics you would like to talk with us about?

A: Structural stability is another common citation I’ve seen. MSHA is doing a lot of outreach and scrutiny on everything from culvert tunnels to noise attenuation barriers to silos used for storage. They’re looking for rust, bad areas of corrugated walkways, missing bolts, things like that. This ties in with one of MSHA’s Rules to Live By, which classifies it as a violation to use equipment beyond the manufacturer’s design specifications or capacity.

MSHA is scrutinizing structures based on who built it and who examined it. They want to know if qualified engineers designed these structures. Even though there is no rule to have an engineer on staff, MSHA representatives will second-guess your structures. If you can’t say that you’re regularly having these inspected by someone who is a licensed or registered professional engineer, the odds are that you’re going to get cited.

We would like to thank Adele for sitting down and discussing the state of MSHA standards with us. More information about Adele L. Abrams and her experience as an MSHA attorney are below.

Adele L. Abrams is an attorney, safety professional and trainer who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, MD, Charleston, WV, and Denver, CO, a multi-attorney firm focusing on safety, health and employment law nationwide. Adele is a certified mine safety professional and she also provides consultation, safety audits and training services to MSHA and OSHA regulated companies.

Adele is a regular columnist for numerous magazines on legal, employment, mine and occupational safety/health issues, and is co-author of several books related to mining, construction, employment law, and occupational safety and health.

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