For clients and friends of Jackson Kelly PLLC
Volume 14, Number 11
©2018 Jackson Kelly PLLC
On May 31, 2018, the Mine Safety and Health Administration (“MSHA”) held its final in-person Stakeholder Meeting regarding the new Examinations of Working Places rule for Metal/Nonmetal Mine Operators in Denver, Colorado. The new rule is effective tomorrow, June 2, 2018. MSHA personnel from Headquarters and the Rocky Mountain District presented information regarding the changes in the workplace examination rule and answered questions from Stakeholders. The information provided at this meeting was substantially similar to that provided at other Stakeholder Meetings and was previously summarized in this JK News Alert.
MSHA provided some additional information and clarification for mine operators at the Denver meeting. On the enforcement front, MSHA made clear that inspectors were not expected to issue citations for violations of the rule until October 2, 2018, but rather were expected to use the coming four months as an opportunity to discuss with mine operators any questions or concerns either MSHA or the mine operator had. However, as stated at other Stakeholder Meetings, a mine operator will be cited if the mine operator is not making a good faith effort to comply with the regulation.
MSHA noted that the Agency is working with various industry groups to develop sample forms for recording the workplace examination, commenting that the form and content of the record is likely to vary depending on mining sector and size of operation. For example, a record for a small five-person sand and gravel operation will likely look quite different than the examination record used by a large underground metal mine. MSHA expects to post the sample forms on its website within the next two weeks. MSHA stated that if a mine operator is unsure whether its form meets the new rule’s requirement, then the mine operator should discuss the form with its local inspector and/or Field Office Supervisor. Alternatively, the mine operator can submit its form to MSHA Headquarters for review and/or offer its form for posting on the website as an example for others to use.
The question of who should perform the workplace examination has often been a topic of discussion when a mine operator has contractors working at the mine. MSHA stated that the new rule does not prohibit the mine operator from requiring the contractor to perform the workplace examination and noted that there are times when that approach makes more sense, depending on the potential hazards related to the contractor’s work. However, ultimately it is up to the mine operator to ensure that the examination is completed timely and to maintain the records of the examinations for inspection and review upon request by an inspector.
MSHA made clear that if no work is being done in an area of the mine, then no examination is required. A question was asked regarding the need to inspect overland or field conveyor belts on every shift. MSHA stated that the belt would need to be examined only when work was being done on or around the belt and then only in the specific work area. In other words, mine operators are not required to inspect the complete conveyor belt system on every shift.
At a previous Stakeholder Meeting, reference was made to a quiz that would allow the mine operator to determine whether the individuals designated to perform the workplace exam were competent, as required by the rule. MSHA clarified that the “quiz” is actually MSHA Instructor Training and is presently available on MSHA’s website at https://arlweb.msha.gov/distance/wpemnm/index.html. The training materials may be useful for a mine operator to use in training its competent persons on the requirements of the new rule.
MSHA has posted a variety of information and presentations on its website to assist the industry in understanding the requirements of the new rule. In addition to the presentation that MSHA has used at all of the Stakeholder Meetings and for training its inspectors, MSHA posted FAQ. The FAQ document is a “living” document, meaning MSHA intends to continue to add questions as necessary. When a mine operator has a question about how to comply with the rule, the FAQ should be one of the first places to look for information.
In addition, MSHA provided attendees to the meeting with the following chart comparing elements of the prior rule and the new rule:
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EXAMINATIONS OF WORKING PLACES IN METAL AND NONMETAL MINES |
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Existing Standards |
Final Standards |
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Who conducts the working place examination |
Competent persons designated by the mine operator |
NO CHANGE |
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When to conduct working place examination for conditions that may adversely affect safety or health |
At least once each shift |
At least once each shift before work begins or as miners begin work in working place |
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Notification to miners |
NOT REQUIRED |
Promptly notify miners in affected areas of conditions that may adversely affect their safety or health |
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Corrective action for adverse conditions |
Promptly initiate appropriate action to correct such conditions |
NO CHANGE |
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Conditions that represent an imminent danger |
Notify operator immediately and withdraw all persons in affected areas until danger is abated |
NO CHANGE |
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When to make examination record |
No time specified |
Before the end of the shift |
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Contents of the examination record |
Record that examination was made |
Name of person conducting examination; date; locations of areas examined; description of each adverse condition that is not corrected promptly; date of corrective action for each adverse condition that is not corrected promptly |
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Record retention |
1 year |
NO CHANGE |
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Record availability |
Available for review by MSHA |
Available for inspection by MSHA and miners’ representatives; provide a copy upon request |
The last opportunity to hear MSHA discuss the new rule is on June 6, 2018, when MSHA will host a video teleconference (VTC) that will be broadcast from MSHA’s Headquarters. The meeting starts at 11:00 a.m. Eastern time. Persons wishing to participate must attend the VTC in-person. The VTC can be viewed at MSHA Headquarters in Arlington, VA; National Mine Health and Safety Academy in Beckley, WV; Southeastern District Office in Birmingham, AL; Rocky Mountain District Office in Denver, CO; Mesa Field Office in Mesa, AZ; North Central District Office in Duluth, MN; Northeastern District Office in Warrendale, PA; or Western District Office in Vacaville, CA.
WORKPLACE SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Karen L. Johnston
303.390.0008
kjohnston@jacksonkelly.com
The Jackson Kelly PLLC Workplace Safety & Health News-Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Workplace Safety & Health News-Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.
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