Many mining, construction and demolition operators around the country are ramping back up into full production.
Not coincidentally, increased production is almost always mirrored by a similar surge in regulatory presence and enforcement at jobsites or mines. But producers may feel a stronger enforcement push this year than in recent years.
OSHA enforcement
With the Occupational Safety & Health Administration (OSHA), the enforcement emphasis will be largely in part due to the easing of COVID-19 restrictions placed upon the agency and its Compliance Safety & Health Officers (CSHOs). During the past two years, much of OSHA’s enforcement energy focused on COVID-19 in the workplace and complaints of such exposures. While COVID-19 remains a concern with the agency, OSHA compliance resources are more prevalent in normal compliance and enforcement realms.
In addition to regional and local emphasis programs, OSHA has National Emphasis Programs (NEPs), which were recently pushed to the backburner due to pandemic restrictions. We are now seeing OSHA marshal resources back to these NEPs, which include programs focused on combustible dust, crystalline silica, trenching and excavation and heat-related hazards. The programs will drive CSHOs to construction and demolition sites in greater frequency during the summer months, given dry conditions and high temperatures.
MSHA enforcement
The Mine Safety & Health Administration (MSHA) held that it continued to complete its mandatory inspections at the nation’s mines during the pandemic, including at least twice per year at surface mines and four times per year at underground mines.
While MSHA may have hit the minimum number of inspections required by the Mine Act, the duration and substance of these inspections were undoubtedly impacted by the pandemic.
This summer will also be the first full production season for the mining industry under Christopher Williamson, the Biden administration’s assistant secretary for MSHA. Williamson’s experience with the industry includes working at the Federal Mine Safety & Health Review Commission and at MSHA during the Obama administration. His confirmation, more than a year into President Biden’s term, should help the administration transform MSHA into its vision for the agency. And historically, Democratic administrations lead to a rise in MSHA enforcement activity.
An unfortunate factor that will also lead to MSHA’s enforcement boost is the significant increase in fatalities suffered by the mining industry in the last 18 months. During the first quarter of 2022, MSHA reported 12 fatal accidents at the nation’s mines. In the third and fourth quarters of 2021, MSHA reported 10 fatalities in each. That means in the last three quarters, the mining industry suffered 32 fatal accidents. This is more than the industry sustained each year from 2015 to 2020. Such a trend will demand a response by the nation’s mine regulator, and we should expect the agency to enforce in such a manner.
Mine operators should pay particular attention to areas where MSHA is also pursuing new rulemaking, including the operation of surface mobile equipment and exposure to respirable quartz/crystalline silica.
While MSHA finalizes the surface mobile equipment rulemaking, its inspectors will emphasize inspection of equipment operator training, roadway and dump point construction, plus other potential hazards related to powered haulage, especially conveyor systems. Additionally, MSHA continues to draft rulemaking on respirable quartz, which is the term MSHA often uses to describe respirable crystalline silica. We have seen a noticeable uptick in MSHA sampling for this substance and the issuance of citations related to overexposures.
Final thoughts
It is important that employers are aware of OSHA’s emphasis program and prepared for greater efforts in compliance enforcement by the agency. Likewise, those operating in the mining industry should double-check to ensure sites are in tip-top shape and all recordkeeping on training is in order before MSHA’s next inspection.
It’s shaping up to be a busy season operationally around the country, but don’t neglect safety and health compliance with the high likelihood of an upswing in enforcement.
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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