The Federal Mine Safety & Health Act of 1977, also known as the Mine Act, contributed to the creation of the Mine Safety & Health Administration (MSHA), giving the agency its authority and enacting regulations to enforce.
An important aspect of the Mine Act, which differs from the Occupational Safety & Health Act, is that the Mine Act is a strict liability statute.
That means, in a practical sense, MSHA can hold mine owners/production operators responsible for anything that takes place on the mine. One example is the noncompliance of independent contractors or truck drivers hired to work at the mine.
Now, this is not a new development. It has been the case since the Mine Act was passed by Congress, but MSHA has viewed this as a priority in recent years.
In 2020, MSHA announced a contractor safety initiative that never really gained momentum due to the onset of the COVID-19 pandemic. The 2020 initiative was intended to curb an especially high year in contractor fatalities in the mining industry. MSHA also announced it would prioritize contractor inspections at mine sites, focusing on inspection of contractor training and training records.
In addition to that announcement, the initiative indicated that MSHA inspectors were to strongly consider issuing enforcement actions to mine owners/production operators when contractors were found to be in noncompliance with MSHA regulations, especially those related to contractors having adequate training.
Inspectors were instructed to focus on whether contractors were adequately trained and, if they were found not to be, the inspectors were to cite not only the employer (the contractor) but also the mine owner/production operator.
While that may seem unfair, it is well within MSHA’s authority to issue that citation. Since the Mine Act is strict liability, mine owners/production operators are ultimately responsible for everyone on the mine site being appropriately trained, whether they need only site-specific hazard training or comprehensive miner training.
Flash forward to early 2022, when MSHA released an enhanced enforcement program, which highlights several items such as the agency’s focus on mine owners/production operators providing hazard training/site-specific hazard training to all customer and contract truck drivers, as well as offering task training to management personnel. But the main topic of the enhanced enforcement program was MSHA’s proclaimed importance of task training for customer or contract truck drivers.
This enhanced enforcement notice caused quite the confusion, because while it is true mine owners/production operators must ensure their contractors are appropriately trained, the obligation to train customer truck drivers beyond site-specific/hazard training does not exist. Contrary to existing legal limitations, the enhanced enforcement related to the task training of customer and contract truck drivers states a few things.
For one, mine operators must assure that miners have the skills necessary to perform tasks in a safe manner – and this is particularly true for customer or contract truck drivers. Truck drivers must be trained in the tasks necessary to perform their jobs at the mine.
MSHA inspectors will focus on the following standards:
■ Control of equipment: 56.9101, 57.9101, 77.1607(a) and (b)
■ Use of seat belts: 56.14131, 57.14131
■ Chocking of wheels: 56.1402, 57.1402, 77.1607(n)
■ Pre-operational inspection: 56.14100(a), 57.14100(a), 77.1606(a)
■ Maintaining brakes in functional condition: 56.14101(a)(3), 57.14101(a)(3), 77.1605(b)
Now, the expectation – or requirement – that mine owners/production operations must provide task training to customer truck drivers goes beyond any MSHA regulation or previous case law. The requirement has always been that mine owners/production operators would provide appropriate hazard training/site-specific training to customer truck drivers in writing, by video, by signage or another effective means.
What we can take from MSHA’s two most recent attempts to emphasize contractor safety and compliance is that the agency views mine owners/production operators as key factors in ensuring contractor compliance with regulations, especially training.
It also means that, more than ever, mine owners/production operators should require contractors working on-site to have the appropriate MSHA training and auditing contractor training programs, as well as records ensuring contractors comply.
While any attempt by MSHA to overstep should be pushed back on and contested, mine owners/production operators need to prioritize and confirm the completion of all necessary training for any contractor hired to work on the mine site.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.
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