Catamount Consulting

MSHA, OSHA, and Work Zone Safety Training and Management

Mine Safety Supervisors and Trainers

How to handle MSHA citations

MSHA upholds some of the strictest safety and health standards in the country. If a violation is found during a mine inspection, a citation can be issued, and MSHA will order miners out of the affected area. To keep workers safe and avoid costly fines and penalties, it is essential to handle any MSHA citations promptly and to take steps to prevent future violations from occurring.

MSHA Inspection and Citations

Before the Inspection

Conduct thorough workplace exams.  The best way to avoid a citation is to address problems as they occur.  A thorough workplace exam will help you identify deficiencies so that they can be corrected.  Record what you find and what corrective actions you’ve taken. MSHA requires deficiencies to be corrected in a timely fashion…so be diligent and address issues as they come up.  Make sure your employees know what to look for and why.   Contact the safety department if you need assistance.

Review the Standards:  Supervisors should be familiar with the various sections of the CFR book and know how to look the standards up.  Competence plays a big part in their mind.  It is also a good idea to discuss the standards at safety meetings.

Initial response

If an inspector presents an alleged violation, it is okay to respectfully disagree with their finding. The key to avoiding or reducing a MSHA citation is to remain calm and professional. Discuss the issue with the inspector in the field before a citation is written.

  1. Ask the inspector why they think a citation exists and what type of hazard it is classified as. Review the standard with them to confirm what it states. If you have questions, review the standards in the CFR.
  2. If the inspector pushes for more information, cooperate in answering their questions, and explain when appropriate. Answer truthfully and provide helpful information while avoiding harmful admissions.
  3. Present your defense to the inspector.
  4. If the hazard is obvious, take immediate action to fix it, then promise to investigate the issue and take steps to prevent it from happening again in the future. Don’t offer misleading statements or engage in any arguments with the inspector.

What to look for in a citation

An MSHA citation must include several key elements. First, it must be provided in writing; no oral citations can be given under Section 104. The citation must also include a description of the alleged violation and its classification and a reference to the specific regulation that was allegedly violated.

Contesting a MSHA citation

If you feel a citation was unfounded, you have the right to challenge it. When considering whether a violation should be challenged, look into whether the alleged action was prohibited by a standard or if there was a failure to comply with a stated requirement. Next, assess the gravity of the violation. How likely is it that an accident could have occurred, and how severe would a potential accident have been? Finally, review the potential level of negligence. What was known about the violation, and when was it known? What was done about it?

 Contesting MSHA Citations

Resolve the issue

Ultimately, MSHA requires that any proven citation be resolved promptly, so it is crucial to take swift action to address the violation. To prevent future citations, discuss the MSHA requirements to ensure everyone knows what to look for and take proactive steps to address any issues as they come up to ensure continued compliance.

When dealing with MSHA inspectors, remember that your relationship with the agency is vital for the safety and compliance of your operations. Always remain professional and take action to stay informed of the regulations and requirements. Doing so will keep your production on track and will help you to avoid expensive abatement costs and penalties from violations.

Need help navigating through MSHA citations?

Understanding and handling MSHA citations is an important part of your business. MSHA requires all Surface Miners to have 24 hours of New Miner training initially, then a minimum of 8 hours refresher training each year thereafter. Catamount Consulting’s MSHA-certified instructors teach both Part 46 and Part 48 Surface Mine Training.

Visit our Training, Consulting, and Work Zone Safety page to learn more about on-site and office training in all facets of MSHA, OSHA, and firearms safety.

How to plan for and manage an OSHA inspection

How to Prepare for an OSHA Inspection

An OSHA inspection can happen at any time. You won’t receive an advance warning and OSHA has been increasing the number of inspections they are performing, so it’s crucial to always be ready.

Catamount Consulting is a national safety and training consulting firm with an essential focus on safety. We want to help you plan, prepare, and complete a successful OSHA inspection.

OSHA violations do not always equate to poor site environments

OSHA violations are costly, with an average of $1,000.00 per violation and can reach a maximum of $134,937.00 per violation. Most sites will experience 1.5 violations per inspection. In the last two years, and with the introduction of COVID-19, non-compliance events have increased to 3 violations on average per inspection.

Few companies are trained or have a training plan for how to manage an OSHA inspection. It would help if you were prepared as the odds of inspection have doubled in 2020.

OSHA inspections are initiated from these familiar three sources:

  • Employee complaints
  • Your company is on the “C” Construction DOL target list
  • Random pass by an inspector who sees a blatant violation

Planning ahead for an OSHA inspection

Planning for the inspection before it happens can help you through the inspection and lessen the exposure. Being prepared creates a controlled and calm environment for you to interact with the inspector and work through the inspection with confidence.

Be prepared for the inspection

OSHA compliance assistance resources

A relaxed, controlled, and welcoming response to the inspector creates an environment for you to manage the situation.

  • Share your materials. Provide all necessary documents, including audits and the site safety plan to the inspector. Be prepared with some questions of your own.
  • Be ready to accompany the inspector. Assign an experienced employee to accompany an OSHA inspector. They are your ‘talker.’ Send along another person to take notes, pictures, and be your second set of ears. Never accompany an OSHA inspector by yourself.
  • Do not withhold any information or materials. You have the best chance of mitigating the damages and getting any allowable reductions while the inspector is on-site. Cooperate and answer any questions.
  • Practice an OSHA inspection. Check your materials and perform regular audits. Are they current? Do they reference employees that are no longer there? Updating these materials will save you an awkward discussion when the inspector is on-site. Practice going through an OSHA inspection as if the inspector were there. This simulation will prepare for success during an actual inspection.

What is a focused inspection?

In most cases, the inspection is performed as a walk around. The inspector and your team walk through the site performing the inspection, as described in the complaint. Ask the OSHA inspector for a focused inspection. A focused inspection targets the areas involved and limits the access and materials needed.

Learn more about OSHA inspections.

You can view our 30-minute webinar “Site Inspections – What is Changing and How to Prepare” presented by Scott McKenna, President of Catamount Consulting of New York, and Richard Wobby, Executive Vice President of AGC VT. Access the recording here.

OSHA inspections do not have to be intimidating or stressful. We hope we alleviated some stress. Visit our services page to learn more about on-site and office training in all facets of MSHA, OSHA, and firearms safety.

Further Clarification on NYS “Pause” Executive Order

In response to questions from AGC NYS and the industry, Empire State Development (ESDC) has this morning advised AGC NYS that the designation of construction as essential applies to “all construction.“

Furthermore, as ESDC is being deluged by requests and questions from businesses relative to the Governor’s Executive Order, they request that, in light of this clarification, firms engaged in construction refrain from asking for a “specific designation” as they work to handle an overwhelming volume of calls and e-mails.

The New York State Thruway Authority (‘the Authority’) has received multiple requests from the construction industry seeking confirmation that contractors, consultants, services and material suppliers are considered exempt from reduction in workforce requirements as a result of COVID-19. Pursuant to Governor Andrew M. Cuomo’s Executive Order 202, essential businesses and services not subject to the in-person restrictions include: (a) transportation infrastructure including vendors that provide essential services needed to ensure the continuing operation of government; and (b) construction. The Governor’s subsequent Executive Order 202. 6, and relevant guidance, further clarified that essential businesses or entities includes skilled trades such as electricians, plumbers and other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.

 

Based on such, as of the date of this memorandum, ongoing construction and design-build projects shall continue to progress. Contractors shall implement the necessary social distancing and cleaning protocols to the fullest extent possible.

 

Read the full memo here.

COVID-19 Updates and Resources

No company and no industry is immune from the COVID-19 outbreak. The response to this evolving situation morphs on a daily or even hourly basis. Trying to keep on top of it or ahead of the situation has become complicated. We know it is causing a lot of stress but firmly believe that we can navigate these challenging times together.

 

Following is a list of items that should be looked at as you move forward:

  • Assess the specific risks for each site, job, and worker.
  • Identify general measures to prevent the spread of disease at work
  • Identify job-specific modifications and responsibilities.
  • Establish response protocols in case infection reaches your site.
  • Plan for business continuity in severe conditions. Attached is Business Planning guide based on FEMA guidelines. Business Plan- COVID-19 Specific.
  • Know the state, federal and local implementations on what is going on.  OSHA has provided guidance on recordkeeping requirements regarding the virus, MSHA has agreed to extent training deadlines by 30 days, Federal extension of FMLA and Paid Sick Leave

 

We have found several sites to be very helpful with updates during all this in several sectors:

COVID-19 “Pause” Executive Order

Update provided by AGC NYS

Governor Cuomo has issued guidance on essential services and businesses under his New York State on PAUSE Executive Order, which requires non-essential businesses to close in-office functions effective 8pm Sunday.

The Governor’s order declares construction as essential and updated guidance posted by Empire State Development further states that essential businesses or entities, including any for profit or non-profit, regardless of the nature of the service, the function they perform, or its corporate or entity structure, are not subject to the in-person restriction.

Guidance on essential services states:

Construction, Including:

* skilled trades such as electricians, plumbers

* other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes

The language in the original guidance has generated a great deal of questions and uncertainty from the industry and membership. The AGC NYS sought to have the guidance for the Executive Order clarified to definitively answer these questions. They advised that individual agencies are providing guidance and direction to contractors on how to proceed.

NYSDOT issued a document stating that, the Executive Order provides that essential businesses and services not subject to the in- person restrictions include transportation infrastructure including vendors that provide essential services needed to ensure the continuing operation of government. The Department is continuing implementation of its capital program as an essential government function and will continue to let and construct projects. The companies awarded such contracts including subcontractors, suppliers, vendors and specialty firms are all exempt for work to support the capital program.

The MTA has subsequently issued similar guidance, as well as the Thruway Authority.

We have requested that other construction agencies provide guidance to contractors in similar fashion.

We are advised and hearing from members that the MTA, State University Construction Fund, Thruway Authority, DASNY and other public agencies are directing contractors to proceed with work.

At this time, we are continuing to seek additional clarification about how Governor’s Executive Order applies to local government and private construction as well, but believe in the absence of delineation or limitation of construction in the issued ESD Guidance, that a reasonable reading of the Executive Order gives a contractor or construction-related firm a basis to affirm that they are exempt from the in-person restrictions. There are conflicting reports about particular private projects being told to proceed, while others are apparently being directed to stop work.

We also advise that contractors on such projects should communicate closely with their owners on these matters, as there is continuing confusion and conflicting information on these matters.

We understand that in some project-specific instances, ESD Regional Directors have been able to provide clarity by deeming individual projects essential. You can find the list of ESD Regional Directors at this link.

In all cases, contractors and related firms should be following all relevant public health guidelines and reducing density wherever possible to take all precautions against the spread and transmission of COVID-19. Additional information and resources can be found on our AGC NYS COVID-19 Resources Page, which is being updated regularly.

We will continue to communicate to the membership if/when additional details or clarification becomes available.

 

For Immediate Release:3/20/2020

GOVERNOR ANDREW M. CUOMO

GOVERNOR CUOMO ISSUES GUIDANCE ON ESSENTIAL SERVICES UNDER THE ‘NEW YORK STATE ON PAUSE’ EXECUTIVE ORDER

Earlier today, Governor Andrew M. Cuomo announced he is signing the “New York State on PAUSE” executive order, a 10-point policy to assure uniform safety for everyone. It includes a new directive that all non-essential businesses statewide must close in-office personnel functions effective at 8PM on Sunday, March 22. Guidance on essential services under the executive order is as follows:

ESSENTIAL BUSINESSES OR ENTITIES, including any for profit or non-profit, regardless of the nature of the service, the function they perform, or its corporate or entity structure, are not subject to the in-person restriction.

(Essential Businesses must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health).

This guidance is issued by the New York State Department of Economic Development d/b/a Empire State Development and applies to each business location individually and is intended to assist businesses in determining whether they are an essential business and steps to request such designation. With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the restrictions.

For purposes of Executive Order 202.6, “Essential Business,” means:

1. Essential Health Care Operations, Including:

* research and laboratory services

* hospitals

* walk-in-care health facilities

* emergency veterinary and livestock services

* elder care

* medical wholesale and distribution

* home health care workers or aides for the elderly

* doctor and emergency dental

* nursing homes, or residential health care facilities or congregate care facilities

* medical supplies and equipment manufacturers and providers

2. Essential Infrastructure, Including:

* utilities including power generation, fuel supply and transmission

* public water and wastewater

* telecommunications and data centers

* airports/airlines

* transportation infrastructure such as bus, rail, or for-hire vehicles, garages

* hotels, and places of accommodation

3. Essential Manufacturing, Including:

* food processing, manufacturing agents, including all foods and beverages

* chemicals

* medical equipment/instruments

* pharmaceuticals

* sanitary products

* telecommunications

* microelectronics/semi-conductor

* agriculture/farms

* household paper products

4. Essential Retail, Including:

* grocery stores including all food and beverage stores

* pharmacies

* convenience stores

* farmer’s markets

* gas stations

* restaurants/bars (but only for take-out/delivery)

* hardware and building material stores

5. Essential Services, Including:

* trash and recycling collection, processing and disposal

* mail and shipping services

* laundromats

* building cleaning and maintenance

* child care services

* auto repair

* warehouse/distribution and fulfillment

* funeral homes, crematoriums and cemeteries

* storage for essential businesses

* animal shelters

6. News Media

7. Financial Institutions, Including:

* banks

* insurance

* payroll

* accounting

* services related to financial markets

8. Providers of Basic Necessities to Economically Disadvantaged Populations, Including:

* homeless shelters and congregate care facilities

* food banks

* human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support

9. Construction, Including:

* skilled trades such as electricians, plumbers

* other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes

10. Defense

* defense and national security-related operations supporting the U.S. Government or a contractor to the US government

11. Essential Services Necessary to Maintain the Safety, Sanitation and Essential Operations of Residences or Other Essential Businesses, Including:

* law enforcement

* fire prevention and response

* building code enforcement

* security

* emergency management and response

* building cleaners or janitors

* general maintenance whether employed by the entity directly or a vendor

* automotive repair

* disinfection

12. Vendors that Provide Essential Services or Products, Including Logistics and Technology Support, Child Care and Services:

* logistics

* technology support for online services

* child care programs and services

* government owned or leased buildings

* essential government services

If the function of your business is not listed above, but you believe that it is essential or it is an entity providing essential services or functions, you may request designation as an essential business.

Houses of worship are not ordered closed however it is strongly recommended no congregate services be held and social distance maintained.

Businesses and entities that provide other essential services must implement rules that help facilitate social distancing of at least six feet.

Requests by businesses to be designated an essential function as described above, should only be made if they are NOT covered by the guidance.

To request designation as an essential business, please click here.

Restrictions on requesting designation as an essential business:

Any business that only has a single occupant/employee (i.e. gas station) has been deemed exempt and need not submit a request to be designated as an essential business.

Businesses ordered to close on Monday, March 15, 2020 under the restrictions on any gathering with 50 or more participants, including but not limited to, bars, restaurants, gyms, movie theaters, casinos, auditoriums, concerts, conferences, worship services, sporting events, and physical fitness centers, are presumed to be compliant with NYS issued restrictions and must remain closed and are not eligible for designation as an essential business for purposes of this guidance.

For Guidance on cleaning and disinfection of facilities, refer to the New York State Department of Health Interim Guidance for Cleaning and Disinfection of Public and Private Facilities for COVID -19 at:

http://www.health.ny.gov/diseases/communicable/coronavirus/docs/cleaning_guidance _general_building.pdf.

For further information: New York State Department of Health’s COVID-19 Webpage https://coronavirus.health.ny.gov/home

Center for Disease Control and Prevention Webpage:

https://www.cdc.gov/coronavirus/2019-ncov/

Local health department contact information can be found at:https://www.health.ny.gov/contact/contact_information/index.htm