Client Focus | Industry Insight | National Reputation Managing Contractor Safety and Compliance on the Mine Site Presented To: 35th annual South Central Joint Mine Health & Safety Conference April 11, 2017 By: Karen L. Johnston, Esquire Jackson Kelly PLLC 1099 18th Street, Suite 2150, Denver, CO 80202 Phone: (303) 390-0003 • Fax: (303) 390-0177 E-mail: kjohnston@jacksonkelly.com • www.jacksonkelly.com Client Focus | Industry Insight | National Reputation

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Contractors on the Mine Site Your mine site may engage contract personnel for a wide range of activities, including administrative support, construction, mining operations, equipment repair, and maintenance.

Contractor Safety Performance Safety first when choosing a contractor.

Twentymile Coal Co. Sec’y of Labor v. Twentymile Coal Co. 456 F.3d 151 (D.C. Cir. 2006) The Secretary of Labor has discretionary authority to cite the owner-operator, the independent contractor, or both for contractor violations.

Pre-Contract Considerations Use of appropriate and effective safety and health systems should be non-negotiable.

Pre-Contract Considerations Operator can and should ensure that its standards are being met by contractors.

Pre-Contract Considerations Operator should specify the regulations, standards, policies, and procedures applicable for the job

Pre-Contract Considerations Suggested items for contract inclusion addressing safety and health: Attendance Regulations Policy for safe work

Pre-Contract Considerations Suggested items for contract inclusion addressing safety and health: External Risks Screening contractor employees Power to inspect and stop

Pre-Contract Considerations Operators should retain power to control and terminate contractors.

Pre-Contract Considerations Does the safety management plan contained with the contractor’s bid demonstrate that the contractor has a plan to complete the contract requirements in a safe manner? Consider providing a “kit” of what will be required for a safety management plan.

Pre-Contract Considerations Consider contractor and not just contract: Record Culture

Contractor Safety Performance Evaluate contractor’s historical safety performance

Contractor Safety Performance Services such as BROWZ, etc. can help you determine if contractors are “non-compliant” if they have a TRR, LWR, or DART rate higher than the predetermined value established for the current year.

Control Measures to Consider What are your mine site requirements for: Housekeeping Electrical management Confined space Trenching and excavating Stored energy Explosives management Hazardous materials and biological agents Contractor management Preventative maintenance Hot work management Routine assessment of the effectiveness of operating controls and corrective actions Guarding and barricading Drilling and blasting operations Reporting and communication of workers’ concerns Equipment operations and communication Accountability system to monitor and ensure compliance with control measures Ground control (surface & underground) Working at heights Working alone Mine opening and shaft operations

Control Measures to Consider Written procedures that explain how to perform a task safely Inspections to identify and correct unsafe conditions

Control Measures to Consider Mechanical controls Pre-start-up inspections on mobile equipment Site speed limits, signage and in-vehicle monitoring systems

Control Measures to Consider Personal protective equipment Fall protection

Control Measures to Consider Access control systems Lockout/tagout Isolation requirements for power supplies

Hazard Identification Process Compliance Workplace/equipment assessment Confirmation of assessments Quality safety interactions Access control systems Lockout/tagout Isolation requirements for power supplies

Evaluation of Site Operations Is the contractor performing safely? Criteria: Is the safety and health management plan being adhered to? Are the contractor’s systems working? Are employees complying with site rules and procedures? Is housekeeping up to standard?

Sunbelt Rentals Inc. Sunbelt Rentals Inc. 38 FMSHRC 1619 Increased liability for operators

Effect of Sunbelt Decision Delegating workplace examinations

Ames Construction, Inc. Ames Construction, Inc., v. FMSHRC, SOL 676 F.3d 1109 (D.C. Cir. 2012), aff’ing 33 FMSHRC 1607 (July 2011)

Effect of Ames Decision Mine operators and contractors are responsible for any subcontractors or other companies acting under their authority Make sure that supervisory responsibilities are clearly delineated

Obtaining a Contractor ID ANY contractor may obtain a permanent ID number from MSHA. Form and instructions available at MSHA.gov

Independent Contractor Register 30 C.F.R. § 45.4(a) Independent contractors must provide production- operators with minimal information necessary for MSHA inspection

Independent Contractor Register 30 C.F.R. § 45.4(b) Production-operators must maintain this information in written form at mine and make information available to inspector upon request.

MSHA’s Nine Types of Contractors Required by MSHA to have identification numbers (per MSHA’s Program Policy Manual): Mine development Construction or reconstruction of mine facilities Demolition of mine facilities Construction of dams

MSHA’s Nine Types of Contractors Excavation or earthmoving activities Equipment installation Equipment service or repair of equipment on mine property for a period exceeding 5 consecutive days Material handling within mine property Drilling and blasting

MSHA Training The required training will vary depending upon: The type of mine: Underground or surface The experience of the miner The particular hazards at the mine and the tasks involved The nature of the work and the level of exposure to mine hazards

Basic Regulatory Framework Part 46 and Part 48 require that miners receive training commensurate to their level of exposure to mine hazards May be additional training requirements depending on work involved

Part 46 and Part 48 Part 46 – applies to certain surface metal/nonmetal operations Part 48 – applies to all other mining operations, surface and underground

Part 46 30 C.F.R. § 46.2(g)(1) - Miner definition: (i) Any person, including any operator or supervisor, who works at a mine and who is engaged in mining operations. This definition includes independent contractors and employees of independent contractors who are engaged in mining operations; and (ii) Any construction worker who is exposed to hazards of mining operations.

Part 46 30 C.F.R. § 46.2(g)(1)(2) Miner exclusions

Part 48 v. Part 46 Part 48 is much less clear about training requirements for construction workers than Part 46

Part 48 Comprehensive Training Miners with significant exposure to mine hazards Short-term, specialized contract workers, such as drillers and blasters

Part 48 “Miners” “Frequent or extended periods” Notable exceptions to the rule: Workers engaged in construction of major additions to existing mine which requires mine to cease operations Any person working in an underground mine

What is “Frequent” or “Extended” Time? “Frequent” exposure: pattern of exposure to mine hazards occurring intermittently and repeatedly over time “Extended” exposure: exposure to mine hazards of more than five consecutive work days

Comprehensive Training Contractors requiring comprehensive training: Those engaged in mining operations Maintenance or service workers working on mining equipment for frequent or extended periods Construction workers exposed to hazards of mining operations for frequent or extended periods

Hazard Training Site-specific hazard training Non-Miners Based on activities All miners must receive site-specific hazard training before assignment Non-Miners Required to receive only site-specific hazard training

Independent Contractor Training 30 C.F.R. § 46.12 Production-operator has primary responsibility for ensuring site-specific hazard awareness training is given to contractor employees Each independent contractor has primary responsibility for complying with other required training under Parts 46 and 48

Myth My contractor is only going to be on the mine site for a few weeks. They do not need any MSHA training for this short time. All persons working at mine site must receive either hazard or comprehensive training. Even non-miners who are on site for less than five days require hazard training.

Myth My contractor is not digging up minerals or processing them, so MSHA does not apply. MSHA regulations apply where MSHA has jurisdiction, so the first question is whether you are on a mine site. If workers are on a mine site, the question is whether the contractor is considered a mine operator under the Mine Act, because the Mine Act is enforced against “operators.”

Records of Training 30 C.F.R. § § 46.9, 48.9, 48.29 In writing Certified by person designated as responsible for safety and health in training plan Part 46 requires a competent person Part 48 requires an MSHA approved instructor On MSHA’s 5000-23 or form containing the requisite information

Eastern Associated Coal Corp. Sec’y of Labor v. Eastern Associated Coal Corp. 27 FMSHRC 238 (Rev. Comm. 2005) “An operator is required to tailor its hazard training of contract employees according to their work and conditions under which they perform.” In dispute was whether the hazard training for a specialty contractor applying grout should have included the mine’s roof control plan grout provisions.

Eastern Associated Coal Corp. Sec’y of Labor v. Eastern Associated Coal Corp. 27 FMSHRC 238 (Rev. Comm. 2005) “Eastern was required to insure that Micon employees received adequate hazard training on the safety procedures contained in its roof control plan that pertained to the task that they were to perform.” The Commission further noted that Micon’s task-training could not be expected to include mine-specific hazards and conditions.

For more information on these and other occupational safety and health topics, please visit: http://safety-health.jacksonkelly.com/ Karen L. Johnston, Esquire Jackson Kelly PLLC 1099 18th Street, Suite 2150, Denver, CO 80202 Phone: (303) 390-0003 • Fax: (303) 390-0177 E-mail: kjohnston@jacksonkelly.com • www.jacksonkelly.com