MSHA’s expanded workplace examinations

The Mine Safety & Health Administration (MSHA) announced a proposed regulation to amend workplace examination requirements.

The regulation, titled “Examinations of Working Places in Metal and Nonmetal Mines,” proposes expanded recordkeeping and training mandates and is likely to increase personal enforcement liability for supervisors.

Under the proposed regulations:

1. A competent person must do a workplace examination before work begins in a workplace.
2. Miners must be promptly alerted regarding any identified hazardous conditions.
3. Written records of examinations must be completed before the end of a shift.
4. Examination records must include places examined, conditions found and corrections done.

Under the current regulations, a competent person designated by the operator can examine anytime during a shift; action must be initiated promptly to correct conditions that may adversely affect safety; if an imminent danger exists, management must be notified and miners must be withdrawn immediately; and a record of conditions or corrections is not required, only who examined what and when.

Repeatedly over the years, MSHA attempted to alter the current working places examination regulation by announcing novel interpretations of the standard. The principal goal has always been to require operators to identify and make written records of hazardous conditions found during examinations. The mining industry has always challenged this because such requirements are not stated in the regulation.

MSHA’s most recent effort was last year. The agency issued a program policy letter announcing “best practices” for complying with the workplace examination regulation. The policy stated a “meaningful” workplace examination record should contain descriptions of adverse conditions identified during examination. Given history, MSHA could not mandate such action, but could only recommend such procedure.

Now with the proposed rule, MSHA intends to turn the recommended “best practices” into law. The policy letter describes qualifications for workplace examiners and a recommendation it would be more appropriate for supervisors to conduct the examinations. While MSHA did not include this in the proposed regulation, it is very possible that MSHA anticipates miners’ organizations will argue for incorporation of the policy recommendations as requirements, particularly the supervisors as “competent persons” requirement.

‘Aggravated conduct’

The proposed regulations raise a likelihood of serious exposure of supervisors to MSHA enforcement actions against them personally. MSHA will focus closely on recorded conditions to evaluate a supervisor’s awareness of hazards not promptly addressed. Where corrective actions are not recorded for hazards identified, MSHA may issue unwarrantable failure citations or orders and charge one or more supervisors with “aggravated conduct” for not responding to a known condition.

Such citations and orders are often subsequently referred for “special investigation” of whether agents of the operator “knowingly violated” or “knowingly authorized” a violation of a mandatory safety standard. The workplace examination record will be the primary evidence of supervisor knowledge. Anytime an operator cannot correct a condition immediately, barricades and warning signs should be placed to protect people from entering the affected area.

The proposed rule was published in the Federal Register on June 8, 2016. MSHA has also published a fact sheet on the proposed examination rule. MSHA’s deadline for comments is Sept. 6, 2016, and there will be four public hearings to discuss the rule: July 19 in Salt Lake City; July 21 in Pittsburgh; July 26 in Arlington, Va., and Aug. 4, 2016 in Birmingham, Ala.

MSHA has asked for comments specifically on whether MSHA should require examinations to be conducted within a specified time period (i.e., two hours before miners start work in an area); and whether MSHA should require anyone designated as a “competent person” have a minimum level of experience, particular training or knowledge to identify workplace hazards.

MSHA’s proposed workplace examination requirement will have a substantial impact on mine operators. Mining industry associations will submit comments, but anyone can write a letter to MSHA. All comments are considered.

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Michael T. Heenan is with the national labor, employment and safety law firm Ogletree Deakins. His book MSHA Compliance Essentials is available in English and Spanish (2016).
michael.heenan@odnss.com