Time was when MSHA inspectors who encountered contractors at a mine site simply would do random checks for the “5000-23” training certificates and then move on to other substantive safety inspections. However, a recent case indicates that inspectors are now digging beneath the surface of such training and, when an infraction is discovered, holding the mine operator responsible despite exercise of due diligence.

In Carmeuse Lime and Stone Inc. (ALJ Hodgdon, September 2007), the judge reviewed a training citation issued to the company under 30 CFR Part 48 for inadequate contractor training. Carmeuse operates an underground limestone mine in Kentucky. An MSHA inspector showed up and observed seven workers employed by A&T Industrial Services, who were doing cleanup work at various locations at the plant, using a vacuum truck. The contract workers provided MSHA with MSHA Form 5000-23, certifying that they had been trained.

PART 48 VERSUS PART 46 TRAINING

In this instance, the inspector stated that, because he “did not recognize” the name of the person who had signed the forms as having given the training, he called that individual and determined that the contractors had been trained under Part 46, instead of Part 48. The instructor, while apparently competent to do Part 46 training, was not a “certified trainer” for purpose of MSHA Part 48 training. The contractor (A&T) received a Section 104(g) order, as did Carmeuse, for violating § 48.25 (new miner training). As a threshold issue, the judge agreed with Carmeuse that its citation should have been issued under Section 104(a) of the Mine Act (rather than being a withdrawal order under Section 104(g)(1), which was initially issued). The Secretary agreed to this modification.

Both Part 48 and the corresponding Part 46 requirements mandate 24 hours of training for new miners — including contract workers — who will have regular or frequent exposure to mine hazards. However, Part 46 permits workers to start after receiving four hours of classroom training, with the balance of training received within 90 days of the initial training. Part 48 anticipates that all 24 hours will be provided in advance by an MSHA-approved trainer.

MSHA policy dealing with contractor training has made it clear that, for contractors who work at both Part 48- and Part 46-type mine sites, the agency will accept Part 48 training at either type, but will not accept Part 46 training at sites where Part 48 is required.

Although Carmeuse is a limestone operation, and the contractors were working at the surface of the mine, the entire site is subject to Part 48 because it is an underground mine. If only surface limestone mining was involved, it would fall under Part 46. This is a distinction that often causes confusion to contractors and mine operators alike!

COMPLIANCE BEYOND THE LAW CAN HELP YOUR CASE

Carmeuse also argued that it should not be charged with the violation at all because the company had “a more than adequate system in place to assure that its contractors had completed the MSHA-required training under 30 CFR Part 48.” The mine operator had met with the contracting company president in advance, discussed the training needed, and gave the contractor a written document that specified Part 48 training. Carmeuse also provided site-specific training to the contract workers and checked out their 5000-23 forms documenting previous training. In addition, the workers signed a document verifying that they had been site-trained as well as Part 48-trained.

ALJ Hodgdon agreed that Carmeuse had taken reasonable steps to ensure that A&T's employees were properly trained, but he said that under the law they clearly were not. Because of MSHA's “strict liability” structure, mine operators are liable for violations, regardless of fault, and this was reaffirmed in the landmark decision in Secretary of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006). The judge wrote that “operators have the overall compliance responsibility for insuring that independent contractors comply with the standards and regulations applicable to the work being performed by them in the operator's mine.”

Although the judge upheld Carmeuse's citation, he did modify it from “significant and substantial” to non-S&S, and reduced the proposed penalty from $1,769 to $100. Critically, he held that the “S&S” designation was not applicable to training citations because Section 104(d) plainly states that only violations of “mandatory health or safety standard[s]” can be S&S. Section 3(l) of the Act defines these as “the interim mandatory health or safety standards established by Titles II or III of the Act, and the standards promulgated pursuant to Title I of this Act.” Training of miners is not included in any of these titles.

Judge Hodgdon asserted that the only S&S citations can be those for violations of Parts 56, 57, 58, 62, and their coal counterparts. Therefore, training violations and those issued under the “recordkeeping” section (Part 50) must be classified as non-S&S under this approach. Since MSHA has routinely classified training citations as S&S, any operators or contractors who have these pending should consider a challenge on the theory outlined above.

CONTRACTORS INCREASINGLY TARGETED

Clearly, liability of the mine operator for contractor violations has increased. As reported previously in Twentymile Coal, the U.S. Court of Appeals held that MSHA has unfettered discretion to issue citations to the mine operator, the contractor or both for any violations arising from contractor activities, even from defects in equipment that a contractor might bring onto the mine site. The commission will no longer weigh in on MSHA's exercise of prosecutorial discretion, although it can still consider whether the cited standard was violated at all, and whether the agency's classification of gravity and negligence are appropriate.

Given that Congress recently increased MSHA's maximum civil penalty amounts to $220,000 per citation, the consequences are greater than ever for failing to ensure that contractors retained to perform work at mine sites are capable of performing the work safely, and conforming to mandatory MSHA requirements when it comes to Part 46 or Part 48 training.

As this case shows, operators may have to dig beneath the surface to ensure that not only was training provided, but that a qualified person provided the contractor training. At Part 48 mines, this means examining the training credentials of contractors' trainers to ensure that they are MSHA-certified.

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AUTHOR INFORMATION

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com