Regulating the Heat

Increasingly, Government Regulators Are Treating The Weather – Specifically Hot Weather – As Another Opportunity For Action.

By Brian Hendrix

Miners (and many others) work outside in the elements all the time. Every summer, I know that miners in some parts of the country will be working outside on days when the temperature is well over 100°F. 

Dealing with the weather – working safely on a hot, dry day – is part of the job. When it’s hot, pacing yourself and pausing for breaks, staying hydrated, using shade, etc. are all tried and true (and quite effective) methods of dealing with the heat. Good safety professionals train and periodically remind their people about the steps they should take to prevent a heat related illness. 

MSHA does the same, periodically pushing out alerts and information about heat stress. MSHA also takes enforcement action against operators. No doubt, these efforts have greatly reduced heat-related injuries and illnesses, but they haven’t eliminated them. 

Increasingly, government regulators are treating the weather – specifically hot weather – as another opportunity for action. California adopted a “Heat Illness Prevention” rule several years ago, in 2016. Washington and Michigan have since adopted similar rules. In early July, Oregon’s Occupational Safety and Health Division published a temporary “Heat Illness Prevention” rule. 

Oregon’s rule applies “whenever an employee performs work activities and the heat index (apparent temperature) equals or exceeds 80° Fahrenheit.” At 80°F, employers must provide employees with “access to shade” or “alternative cooling measures.” 

Additionally, it requires employers to supply each employee with at least 32 oz. of cool (less than 65°F) drinking water per hour and provide employees with “ample opportunity” to drink that water. Employers must also “ensure that all employees . . . are trained . . . before employees begin work” on: 

(a) The environmental and personal risk factors for heat illness, as well as the added burden of heat load on the body caused by exertion, clothing, and personal protective equipment.

(b) The procedures for complying with the requirements of this standard, including, but not limited to, the employer’s responsibility to provide water, provide daily heat index information, shade, cool-down rests, how to report symptoms of heat-related illness, and access to first aid as well as the employees’ right to exercise their rights under this standard without fear of retaliation.

(c) The concept, importance, and methods of acclimatization.

(d) The importance of employees immediately reporting symptoms or signs of heat illness in themselves, or in co-workers.

(e) The effects of nonoccupational factors (medications, alcohol, obesity, etc.) on tolerance to occupational heat stress.

(f) The different types of heat-related illness, the common signs and symptoms of heat-related illness.

Oregon’s new rule requires all of the actions above when between 80° and 90° F. When the “ambient heat index exceeds 90°F” in Oregon, “[e]mployers must implement . . . additional high heat practices.” For example, it requires employers to: (1) develop and implement an “emergency medical plan” that includes procedures specific to “possible heat illness”; (2) “ensure that employees are observed for alertness and signs and symptoms of heat illness and are monitored to determine whether medical attention is necessary”; (3) “ensure that each employee takes a minimum ten-minute preventative cool-down rest period in the shade at least every two hours”; and (4) “develop and implement effective acclimatization practices.” And, yes, those “ten-minute preventative cool down rest period[s]” must be on the clock, i.e., compensated. 

At this point, you may be wondering what Oregon’s rule has to do with you or with the mining industry in general. Even if you’re reading this from a mine in Oregon, mines in Oregon are regulated by MSHA, not the Oregon Occupational Safety and Health Division. 

  • First, while MSHA doesn’t have a rule that looks anything like Oregon’s, MSHA does enforce several rules that address the potential hazards of working outside in the heat. For example, 30 C.F.R. § 56.20002 requires operators to provide an “adequate supply of potable drinking water . . . at all active working areas.” MSHA’s PPE standard, 30 C.F.R. § 56.15006, requires operators to provide protective equipment and clothing for “whenever hazards of . . . environment . . . are encountered in a manner capable of causing injury or impairment.” A creative MSHA inspector might cite an operator for a violation of MSHA’s safe access standard, 30 C.F.R. § 56.11001, where miners are working in the heat without appropriate protective measures. And, of course, MSHA’s training standards at Parts 46 and 48, require operators to provide comprehensive safety and health training to miners, as well as training on the safety and health aspects of new tasks. 
  • Second, MSHA is a regulatory agency. Regulatory agencies covet new rules. A regulatory agency looks at a new rule like a gearhead looks at a new car. Federal OSHA’s “Heat Illness Prevention in Outdoor & Indoor Settings” regulation is in the “pre-rule stage,” and legislation has been introduced in the House and Senate to require OSHA to promulgate a heat-related regulation. A rule like Oregon’s hasn’t made MSHA’s rulemaking agenda yet, but I wouldn’t be surprised to see it on the agenda at some point.

What does this all mean to you? What can or should you do? I suspect that the answer to that question for most mine operators is basically: “Keep doing what you’re doing.” 

If your miners are working in a hot environment, you’ve likely trained them to deal with it and provided them with what they need to do so safely. You know that there’s no shortage of educational resources and training materials on heat-related illnesses, and you’ve likely used those resources for training, in tool-box talks, etc. 

If MSHA’s attention turns to rules like Oregon’s, it is less likely to take action if heat-related injuries and illnesses have continued on a downward trend. 

Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected]

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