Unless MSHA’s workplace exams rule is extended, operators need to be prepared

Contributed

September 15, 2017

The Mine Safety and Health Administration (MSHA) extended the effective date of the Workplace Examination Rule (the Rule) to Oct. 2, 2017. MSHA’s reasoning for the delay is to address the regulated community’s concerns about compliance assistance materials and to give MSHA time to train its inspectors. The extension of the effective date affords MSHA more time to complete development of compliance assistance materials and conduct stakeholder meetings with the regulated community.

But, as of Oct. 2, 2017, what will operators have to do to comply? If the effective date is not extended yet again, will your site be ready? This article discusses the rule’s requirements and identifies compliance issues to consider.

The rule requires an operator to: designate a competent person to examine each working place before miners begin work in that place for conditions that may adversely affect safety or health; notify miners in the affected areas of any conditions that may adversely affect their safety or health; promptly initiate corrective action; and make a record of the examination. This examination must be conducted at least once each shift.

Many in the regulated community are concerned about the rule’s requirement to complete examinations before miners begin working in an area. Specifically, the rule requires that an examination of each working place must occur before miners begin work in any “working place.” Mine operators are then charged with the responsibility of promptly notifying miners of any adverse working conditions in their working places. “Prompt notification” requires that notification occur before miners are exposed to the condition. While MSHA believes that, in most cases, verbal notification or descriptive warning signage would be sufficient, it will be difficult for mine operators to prove notification occurred if a dispute arises without documentation of such notification. If the adverse conditions are corrected before work begins, notification is not required.

The rule also contains more specific requirements for examination records. While the records do not need to be signed by the examiner, each examination record must include: the name of the competent person conducting the exam, the date of the exam, the location of all areas examined, and a description of each condition found that may adversely affect the safety or health of miners. The record must then be supplemented to include the date of the corrective actions taken for the listed adverse conditions. However, examination records do not need to contain a description of the corrective action taken or the name of the person making the record of the corrective action.

Each record of examination must be completed before the end of shift for which the examination was performed. Further, each record must be maintained for one year. In addition to providing the exam record to MSHA upon request, operators must provide copies to miners’ representatives upon request.

MSHA continues to define “working place” as any place in or about a mine where work in the extraction or milling processes is being performed. MSHA has stated that “working place” includes roads traveled to and from a work area. However, it does not include roads not directly involved in the mining process, administrative office buildings, parking lots, lunchrooms, toilet facilities, or inactive storage areas. MSHA notes that it will still inspect these areas for other violations. Mine operators are required to examine isolated, abandoned, or idle areas of the mine only when miners have to perform work in these areas during the shift.

The definition of “competent person” did not change under the new rule. A competent person is a person having the abilities and experience that fully qualify him to perform the duty to which he is assigned. While MSHA will not require additional training for competent persons performing workplace examinations, a competent person must be able to recognize hazards and adverse conditions that are expected or known to occur in a specific work area or that are predictable to someone familiar with the mining industry.

Many operators have concern about implementation of the rule. Since the Mine Act is a strict liability statute, noting adverse conditions on examination records raises the concern that MSHA will cite operators for violations that are found and recorded on examination records, even if operators are in the process of fixing or have previously fixed the noted conditions. This will be more likely if the date of corrective action has not yet been added to the examination record or if there are delays in getting noted conditions corrected.

Other operators are concerned about the ability to perform the workplace examinations in the time required by the rule. Mine operators must designate a competent person to conduct an examination before work begins in each working place. The competent person is not required to complete the actual record of the examination until the end of shift. However, the operator is held responsible for notifying any miner who would be affected by the adverse condition prior to that miner potentially being exposed. Therefore, operators will need to decide prior to implementation of the rule how the adverse conditions noted during an exam will be communicated to other miners before work begins if exam records are not turned in to the operator until the end of shift.

Proactive mine operators should be preparing for compliance before the effective date of the new rule. Addressing the issues posed above will allow your mine site to successfully comply with the new rule. If you need compliance support, seek advice of counsel.

Dana M. Svendsen is a member in Jackson Kelly PLLC’s Denver office, where she practices in the Occupational Safety and Health Group. She can be reached at 303-390-0011 or  dmsvendsen@jacksonkelly.com

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