By Randy Logsdon
Part 48 and Part 46 have been described by a number of adjectives – comprehensive, complex, confusing, rigid, soft, flexible and intrusive among others. The fact that there are two training standards enforced by the same agency can raise interesting application questions and interesting enforcement questions. But there is a third, more obscure training standard in the metal/non-metal mining regulations that seems to get little attention.
30 CFR § 56/57.18006
New employees shall be indoctrinated in safety rules and safe work procedures.
I can’t say how often this rule has been cited, but research verifies that it is not listed in MSHA’s top 20. A quick review of Federal Mine Safety and Health Review Commission (FMSHRC) decisions indicate that six rulings on 56.18006 have been issued between February 1987 and April 2009. Most, it seems, were rendered during the Part 48 moratorium that preceded the implementation of Part 46, Oct. 2, 2000. Only the April 2009 decision regarding a citation issued in September 2007 was adjudicated post-Part 46. Still, the standard is on the books and it is enforceable.
The rule is short – one line, one sentence. But like many regulatory standards, it’s important to understand how the rule is crafted and its implications beyond the plain language, especially when compared to the language of other MSHA standards. Disclaimer: I am not a lawyer and the following should not be considered legal advice. This is simply my (a safety guy’s) approach interpretation of MSHA standards. It’s a two-step process. The first step is to make some analytical assumptions based on the standard’s language. What does it really say?
To Whom Does it Apply?
The rule applies only to new employees. In fact, the rule is subtitled “New employees.” “New” is a relative term and is open to interpretation, so it’s doubtful that the rule has application to employees who have a long history with the company or operation. It could apply to an experienced miner who is new to the mine. While there likely is application to new task training for a new employee, this rule does not seem to apply to new task training for a seasoned employee. It’s also interesting to note the use of “employees” rather than “miners.” This implies that the rule applies to all employees – not just those engaged in the mining process. Application to contractors, delivery personnel and visitors raises a whole array of other issues.
Of course the word “shall” is very definitive (as opposed to “should”). It is mandatory; no exceptions, no judgment call.
“Indoctrinated” is an interesting word of choice. Webster defines “indoctrinate” as: to instill certain ideas or beliefs into, esp. so as to cause to embrace an ideology; to teach rudiments . . . Applying that definition, indoctrination would seem to focus on the background reasoning – the why, so that the employees understand and “embrace” the concepts of the objective (safety rules and safe work practices). I don’t think that it implies the omission of specifics or at least common examples or expectations.
MSHA uses the term “safety rules” generically. (Other standards may say “rules under this subpart” or something similar.) Conceptually, it can apply to both the MSHA standards under 30 CFR as well as your own company safety rules. It could even be extended to apply to published non-binding standards for such things as confined space entry, fall protection, arc-flash protection, and others. Certainly the term “safe work procedures” covers a lot of territory.
What Does it Mean?
So, what does it mean to indoctrinate someone in safety rules and safe work procedures? The 2009 FMSHRC decision may shed some light, at least on the most recent interpretation. That’s my second step in the analysis.
On Sept. 5, 2007 a MSHA inspector cited an aggregates operator under 56.18006 for failure to indoctrinate a newly hired employee in safety rules and safe work procedures. The inspector based the action on discussions with a truck driver who reportedly was unaware of the requirement to block the box of the haul truck when it was in a raised position. The citation was issued as S&S. The truck driver had been employed for about two weeks and told the inspector that he had received a few hours of training at one of the company’s other plants. After discussing the use of a safety bar, and showing the driver where the bar should be inserted to block the truck box, the inspector believed that the information was new to the employee. The inspector testified that he did not believe that the driver had been adequately trained on the task of blocking the raised box.
Testimony from the person (four years training experience) who trained the driver and from another truck driver who received training along with the first truck driver indicated that thorough training, including the use of pins to support the truck box when the box was in the air was administered. Training documents support the testimony of the trainer and the second driver. A third employee testified that on one occasion he had assisted the first truck driver install the pins to secure the elevated truck box.
The citation was vacated in this case. Comments by the judge are important in understanding why the citation was vacated and in understanding the scope of the rule. The judge cited a decision in 2000 that affirmed a citation where a new employee was killed by a crusher after little more than two hours work and having received only 30 minutes of training. In that case, the judge held that the operator was in violation because it merely “familiarized” the miner with unsafe work procedures and the employee was “cast adrift.” Simple familiarization does not seem to qualify as “indoctrination.”
In the 2009 case, the judge conceded that the inspector believed that the truck driver did not seem to know that the box was to be blocked against motion. He noted that unlike this case, in other cases it was quite clear that the employee in question had not been trained.
He noted that many violations are a direct result of the miner failing to follow safe procedures but that a citation alleging a violation of training rules would be inappropriate when a newly hired miner fails to follow an MSHA standard or company safety rule. The judge stated that the evidence shows that the driver had been indoctrinated in the safety procedures but he chose to ignore them. That’s a very important distinction.
The 2009 decision was the most recent case involving 56/57.18006. That gives it some added importance. This case and the others all dealt with the training of newly hired employees. So that aspect of the standard is important – it applies to new employees. The judge used the term miner in this case (and others) simply because the employees involved were miners. In a 2000 decision, the judge affirmed a violation against a contractor who instructed a mine employee to perform mechanical work for which he was unqualified. So the term “employee” can cross the distinction between operator and contractor.
Clearly the judge defines indoctrination to be much more than a cursory introduction or “familiarization.” There must be some depth of understanding. A 1998 decision to affirm a violation of 56.18006 was based on cumulative evidence of employees’ failure to recognize hazards such as unsafe walking surfaces, inadequate berms, and failure to conduct workplace examinations. It’s possible that missing indoctrination on just one rule or practice may not qualify as a violation. Gross failure most certainly does.
In a 1987 decision, the judge ruled in favor of MSHA where an employee was observed standing on the top handrail around a main feed hopper 30 feet above the ground. The employee told the inspector that he frequently used the procedure and had not been trained or told not to stand on the handrail. So it appears that indoctrination must include a fair amount of detail regarding safe work procedures. The judge rendering the 2009 decision clearly implied the importance of company rules in his decision: “…fails to follow an MSHA standard or company safety rule.”
Finally, the whole matter should be taken in historical context with the fact that MSHA was prohibited from enforcing Part 48 in the aggregates industry when five of the six violations were cited. MSHA inspectors simply had no other avenue to address training deficiencies. Today, training performed under Part 46 (and Part 48) standards should be sufficient to cover the provisions of 56.18006. But be careful; 56/57.18006 is still out there.