MSHA Has Decided To Require More From These Workplace Examinations. What Does It Mean For Producers?
By Erik M. Dullea
Few would disagree that mining operations involve dynamic work environments where working conditions can change rapidly and without warning. In the July 2015 Program Policy Letter, MSHA stated that “[r]ecent fatalities and other accidents at metal/nonmetal mines suggest that miners would benefit from rigorous workplace examinations conducted by experienced and trained examiners.” According to MSHA, from January 2010 through mid-December 2015, there were 122 miners killed in 110 accidents at Metal-Nonmetal mines. MSHA believes many of these fatalities could have been prevented with better workplace examinations.
MSHA has decided to require more from these workplace examinations. In the Proposed Rule, MSHA states that its current regulations allow a working place examination to be conducted at any time during the shift, and do not specify what items must be identified in the records for each working place exam. The standards do not require operators to promptly notify miners when adverse conditions are identified, or to make the examination records available to miners’ representatives. It is unclear what position MSHA will take against a miners’ representative who is aware that a constituent is performing inadequate examinations.
Major Provisions of the Proposed Rule
This Proposed Rule would require that:
- A competent person examine the working place before miners begin work in that place.
- Mine operators promptly notify miners of any conditions that may adversely affect their safety or health and promptly initiate appropriate corrective action.
- The competent person sign and date the examination record before the end of each shift.
- The examination record include a description of locations examined, conditions found and corrective actions taken.
- Records be made available for inspection by MSHA and miners’ representatives, and operators provide a copy of the records upon request.
To understand and apply the Proposed Rule, MSHA and operators must have a common and consistent understanding of the concepts embedded within it. The Proposed Rule would not change the existing definitions of competent person and working place used in §§ 56/57.18002 and defined in §§ 56/57.2. A competent person, as defined is a person having abilities and experience that fully qualify him to perform the duty to which he is assigned. A working place is any place in or about a mine where work is being performed.
The Persons Competent to Perform a Workplace Exam
The Proposed Rule would still require that a competent person perform the examinations. MSHA has previously stated that that a “competent person” designated by the operator must already have the experience and training to be able to perform the examination and identify safety and health hazards. MSHA has advocated in various PPLs that, although a best practice is for a foreman or other supervisor to conduct the examination in most cases, an experienced non-supervisory person may also be “competent.” However, having a supervisor perform the exams of all areas not only imposes time and logistical challenges.
If workplace exams were only performed by supervisors, the consequences of any MSHA allegations that an exam was inadequate or not performed would potentially involve a much greater risk of increased liability, and would serve as the basis for unwarrantable failure allegations and individual civil penalties.
When to Perform the Examination? Before Work Begins
MSHA believes that the proposed requirement that operators conduct an examination of working places before work begins in an area would provide better protection of miners. MSHA requests comments on whether the Agency should require that examinations be conducted within a specified time period, e.g., two hours, before miners start work in an area.
Just as prudent pilots will pre-flight their aircraft before flying, all miners should assess their work areas for hazards before they begin work. However, MSHA admits that mining is a dynamic and ever-changing environment. Thus, it is possible, if not likely, that hazards in a work area will develop during a shift that were not present before the shift began. In the Proposed Rule, MSHA has not explained why the agency has concluded that the hazards will exist before a shift begins, and has not provided any quantitative data to support that conclusion.
Historically, the interpretations of this definition of a ‘working place’ by MSHA and its inspectors has been somewhat inconsistent from a time/temporal perspective. Enforcement disputes have arisen involving conditions that were purportedly hazardous in idle sections of mines.
If no miners are present when the inspector arrives, the inspector identifies a hazard (e.g. a Safe Access concern), and there is no indication that the alleged hazard existed when miners were last in the area, can the operator successfully argue that the vacant area is not a working place during that particular shift? The Proposed Rule implies the answer should be YES, even though this may not be the best time to identify hazards that arise from a particular mining activity.
Where Must a Workplace Exam Be Performed?
One positive development was that the Proposed Rule explains that [a working place] includes areas where work is performed on an infrequent basis, such as areas accessed primarily during periods of maintenance or clean-up, if miners will be performing work in these areas during the shift. ... Operators would be required to examine isolated, abandoned, or idle areas of mines or mills only when miners have to perform work in these areas during the shift.
Keep in mind that MSHA will continue to inspect areas of a mine even if the operator does not consider it to be a workplace. However, the explanation does offer some measure of consistency for operators who have varying levels of activity within their mines. Arguably, workplace examination efforts should be focused initially on the areas of the mine that will be occupied that particular shift.
MSHA will hold four public hearings during the comment period to provide the public with an opportunity to present their views on the Proposed Rule. The hearing dates are:
July 19, Salt Lake City.
July 21, Pittsburgh.
July 26, Arlington, Va.
Aug. 4, Birmingham, Ala.
Post-hearing comments must be received by 12:00 a.m. EST on Sept. 6, 2016.
Erik M. Dullea is Of Counsel in the Denver office of Jackson Lewis P.C. He practices in the regulatory compliance areas, with a focus on the mining and transportation industries and government contractors.