1. 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
th Street, Suite 2150, Denver, CO 80202
Phone: (303) • Fax: (303) •
Client Focus | Industry Insight | National Reputation

2. Confidentiality Note: This presentation from the law office of Jackson Kelly PLLC is for the sole use of the intended viewers and contains confidential and privileged information. Any unauthorized review, use, disclosure, distribution, or other dissemination of this presentation and/or the information contained herein is strictly prohibited.

3. 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.

4. Contractor Safety Performance
Safety first when choosing a contractor.

5. 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.

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

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

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

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

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

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

12. 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.

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

14. Contractor Safety Performance
Evaluate contractor’s historical safety performance

15. 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.

16. 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

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

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

19. Control Measures to Consider
Personal protective equipment
Fall protection

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

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

22. 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?

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

24. Effect of Sunbelt Decision
Delegating workplace examinations

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

26. 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

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

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

29. 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.

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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.

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

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

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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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.

45. 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.”

46. 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 or form containing the requisite information

47. 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.

48. 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.

50. For more information on these and other occupational safety and health topics, please visit:
Karen L. Johnston, Esquire
Jackson Kelly PLLC
th Street, Suite 2150, Denver, CO 80202
Phone: (303) • Fax: (303) •