Rock Products

NOV 2018

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www.rockproducts.com ROCK products • November 2018 • 61 LAW Donna V. Pryor is a partner at Husch Blackwell LLP. She represents those defending whistleblower complaints and contesting OSHA and MSHA safety citations. Additionally, Pyror offers training and regulatory insights to the firm's multinational mining, man- ufacturing and heavy-industry clients. She can be reached at donna.pryor@ huschblackwell.com. Many of the MSHA regulations that are currently in effect were written in the 1970s; at this time in history, digital meant using your fingers (digits). Since that time, technol- ogy has become so advanced that the regulations do not even address the hazards involved in mining. How is MSHA addressing these situations? There are more issues to discuss on this topic than there is time to address in this article. Here is a brief discussion of some of the more challenging issues operators face. Cell Phones Who could have imagined how smartphones would create such a pervasive hazard for drivers? The National Safety Council estimates that 21 percent of all car crashes in 2010 involved talking on cell phones, accounting for 1.1 million crashes that year. At least 3 percent of crashes are estimated to involve texting. The numbers can only be rising. Despite these statistics, there are no MSHA regulations that prohibit cell phone use while operating machinery. Does that mean you should not have a rule restricting cell phone use? Absolutely not. Mine operations are increasingly adding cell phone policies to their safety policies procedures, most of which restrict ALL use of cell phones while operating equipment. At most, oper- ators should be allowed to use tablets as part of their work when their vehicle is safely parked and they are standing in a safe location. Autonomous Drillers and Haul Trucks What about autonomous drillers and haul trucks? These are becoming very common around the mining industry. 30 C.F.R. 56/57.14207 provides that mobile equipment shall not be left unattended unless the controls are placed in the park position and the parking brake set. Similarly, 30 C.F.R. 56/57.7012 provides that while in operation drills shall be attended at all times. Looking at these regula- tions, it would seem that autonomous drillers and haul trucks are not permitted on mine sites. However, MSHA has taken the position that if drills and trucks are being controlled remotely, they will be considered "attended" under the regulations. Above and Beyond What Happens When Practice and Technology Exceed the Regulations? By Donna Pryor High Pressure Injection Injuries High-pressure injection injuries in the hand and upper extremity are very serious and are on the rise. These haz- ards were also not anticipated by the regulations, though the agency is likely to cite the defects affecting safety standard (30 C.F.R. 56/57.14000(b)) should an injury or incident occur. Another standard to consider if an employee has a high-pres- sure injection injury is reporting under Part 50. In Secretary v. M-Class Mining, LLC, (Docket No. LAKE 2015-587) (ALJ Rae, May 5, 2017), an employee was injured by a high pressure hydraulic hose (4,200 psi). After the accident, the accident victim was conscious and mobile, but he had sustained a serious injury that caused an open wound and he verbally indicated he knew he was seriously injured. Although his exact injuries were not known to the mine at the time of the accident, the victim was taken to the hospital and underwent emergency surgery for internal injuries. MSHA issued two citations to the operator: one citation was issued for not maintaining machinery in safe operating con- dition (30 C.F.R. 75.1725) (this citation was settled) and other was issued for failure to report an injury in 15 minutes that had a reasonable potential to cause death. The reporting citation was issued as a 104(d) for an unwar- rantable failure to comply with a mandatory standard. At hearing, Federal Mine Health and Safety Review Commission Administrative Law Judge Rae upheld the reporting citation and increased the $5,000 penalty to $7,000. While not binding, Judge Rae's decision would make it advisable that operators

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