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Comparing MSHA & OSHA

Feb 12, 2024 | Construction, Guest Author, Mining

David Hale | Hale and Associates

The federal government has two administrations under the Department of Labor that oversee workplace safety: the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA). While both agencies share the common goal of worker health and safety, there are some distinct differences that are worth noting. This is especially true if a business has operations regulated by both OSHA and MSHA.

If an OSHA citation is received, it must be formally contested within fifteen days. For MSHA, it is thirty days. While administrative law judges and the Occupational Safety and Health Review Commission settle challenges to citations for both administrations, fines differ greatly for the two agencies.

Agency Coordination

In Alaska, federal OSHA has oversight of federal government employees, including those employed by the United States Postal Service; private sector maritime employers such as shipyards, floating seafood processors, and longshoring; offshore oil platforms and production facilities; certain Indian Health Service hospitals and clinics; and all private and federal sector employment within national parks and certain missile defense bases. All other employers are covered by Alaska Occupational Safety and Health, a federally approved state plan, which is inherently a broader authority.

MSHA does not have approved state plans and carries out inspections and the mission “to prevent death, illness, and injury from mining and promote safe and healthful workplaces for US miners.” In Alaska, there are six large operating and producing mines, six advanced exploration projects, and two projects in the permitting phase. There are also dozens of smaller, active gold mines registered with MSHA in Alaska.

Both administrations can shut down operations under certain hazardous conditions… MSHA takes it one step further… workers are paid for the balance of the shift when the mine is shut down.

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The Occupational Safety and Health Act of 1970 (Public Law 91-596) has a mission “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education, and assistance.” Although the Federal Coal Mine and Safety Act of 1969 (Public Law 91-173) came a year earlier and gave the federal government authority to issue notices of violation and orders of withdrawal, it was not until the Federal Mine Safety and Health Act of 1977 (Public Law 91-173) that MSHA was formed. Two years later in 1979, OSHA and MSHA entered an inter-agency memorandum that would clarify authority, enforcement procedures, and agency coordination between the two administrations.

Title 29 Code of Federal Regulations contains the standards for OSHA, while Title 30 Code of Federal Regulations contains the MSHA regulations. In the United States, federal agencies are required to follow the Administrative Procedures Act for rulemaking, and the ultimate authority for both agencies, including appropriations funding, comes from the US Congress.

Significant or Serious

This is where the differences begin. If an OSHA citation is received, it must be formally contested within fifteen days. For MSHA, it is thirty days. While administrative law judges and the Occupational Safety and Health Review Commission settle challenges to citations for both administrations, fines differ greatly for the two agencies.

MSHA uses a Penalty Conversion Table that takes the citation and issues points for the appropriateness of the penalty to the size of the business, the operator’s history of previous violations, and whether the operator was negligent. It then looks at the gravity of the violation and the demonstrated good faith of the operator in attempting to achieve rapid compliance after notification of a violation. Lastly, MSHA assesses the effect of the penalty on the operator’s ability to continue in business. In addition, if a mine demonstrates a pattern of significant and substantial violations, it could be subject to a Pattern of Violations notice.

OSHA has a set schedule for penalties based on categories of Serious, Other-than-Serious, Willful or Repeated, and a Failure to Abate. The penalty for a Serious violation starts at $15,625 and can be reduced using Gravity of Violation, which takes the probability of incidents added to potential injury severity and scores the violation from 1 to 10, with 10 being high severity and greater probability of occurrence. There is also potential for reduced penalties depending on the size of a company and history of violations. A Serious Willful penalty reduction also exists, and it, too, is based on the size of the company.

Both administrations can shut down operations under certain hazardous conditions, and both have the right to issue civil citations and forward criminal charges to a state’s attorney general or the US Department of Justice regarding safety violations. OSHA states, “Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months.”

MSHA has Title 30 U.S.C. § 820(d) that provides criminal penalties “for any operator who willfully fails to comply with a mandatory health or safety standard, or who knowingly violates or refuses to comply with an order.” MSHA takes it one step further: if a mine inspector issues a withdrawal order to a mine operator for violations, failing to abate violations, or posing imminent dangers, workers are paid for the balance of the shift when the mine is shut down. If a miner is withdrawn from the mine or part of the mine and idled because the operator does not comply with any mandatory safety or health standard, the miner is to be paid for lost time at the regular rate for the time they are idled, or for one week, whichever is less.

Both administrations can shut down operations under certain hazardous conditions… MSHA takes it one step further… workers are paid for the balance of the shift when the mine is shut down.

On the Spot

Another interesting difference is that MSHA will visit each registered mine in that jurisdiction at least twice a year. And it happens. While OSHA has emphasis programs, high hazard targeting, and programmed inspections, some employers may never get an inspection from an OSHA Compliance Safety and Health Officer.

In OSHA’s realm, employers must report any worker fatality within eight hours and any amputation, loss of an eye, or hospitalization of a worker within twenty-four hours. In the MSHA arena, there are twelve “accidents” listed in Section 50.2 that must be reported to MSHA within fifteen minutes. These include death of a miner, unplanned ignition or explosion of a blasting agent or an explosive, or a coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour. Fifteen minutes is a very short amount of time given the circumstances that would mandate this call.

Miners who plan to work at a surface mine or an underground mine must complete twenty-four hours of mandatory training before entering the mine site. Depending on the type of mine, miners will receive a specified set of proctored training by an MSHA approved instructor. Once completed, the new miner has a second requirement to have an additional eight hours of site-specific hazard training. Each miner must receive a minimum of eight hours of annual refresher training at least once every twelve months.

OSHA has required programs for employers such as Hazard Communication, Emergency Action Plans, and Fire Prevention Plans that require training prior to starting work. Under OSHA, job tasks like confined space entries, for example, require a formal hazard assessment of the confined spaces. The agency also requires classification of the confined space, formal employee training, and a written plan prior to working in the confined space.

Strive for Safety

Both MSHA and OSHA have websites that contain a wealth of knowledge to help employers working in Alaska to increase safety and decrease risk in the workplace. Each website also contains a search function that allows users to access previous inspection information, as well as a large volume of free training material and information on local inspection programs and initiatives.

While this is a small view of the similarities and differences between these two agencies, many more exist. It is important to understand which regulatory body governs the safety in your workplace and to always strive for best in class in safety. Alaskans are our greatest resource, and each life should be protected every day in the workplace regardless of the profession, job task, or location.

Sean Dewalt is a Senior Loss Control Consultant for Umialik Insurance Company in Anchorage. Dewalt has been working in safety and risk management in Alaska since 2000. This column is intended to be informational and is not intended to be construed as legal advice.

MSHA will visit each registered mine in that jurisdiction at least twice a year… [but] some employers may never get an inspection from an OSHA Compliance Safety and Health Officer.

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