Workplace Safety and Health News Alert

For clients and friends of Jackson Kelly PLLC
Volume 14, Number 6
©2018 Jackson Kelly PLLC

Today, the Mine Safety and Health Administration (“MSHA”) made available for public viewing its latest Final Rule on Examinations of Working Places in Metal and Nonmetal Mines.  The Rule, which will be published in the Federal Register on Monday, April 9, revises the existing Workplace Examination standard at 30 C.F.R. § 56/57.18002.  It takes effect June 2, 2018.  The Final Rule, in its entirety, states as follows:  

§§ 56/57.18002 Examination of Working Places.

(a)    A competent person designated by the operator shall examine each working place at least once each shift before work begins or as miners begin work in that place, for conditions that may adversely affect safety or health.

1. The operator shall promptly notify miners in any affected areas of any conditions found that may adversely affect safety or health and promptly initiate appropriate action to correct such conditions.

2. Conditions noted by the person conducting the examination that may present an imminent danger shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.

(b)    A record of each examination shall be made before the end of the shift for which the examination was conducted.  The record shall contain the name of the person conducting the examination; date of the examination; location of all areas examined; and description of each condition found that may adversely affect the safety or health of miners and is not corrected promptly.

(c)    When a condition that may adversely affect safety or health is not corrected promptly, the examination record shall include, or be supplemented to include, the date of the corrective action.

(d)    The operator shall maintain the examination records for at least one year, make the records available for inspection by authorized representatives of the Secretary and the representatives of miners, and provide these representatives a copy on request.

The Final Rule modifies the first new workplace examination rule, which was published on January 23, 2017.  The January 2017 version changed the existing workplace examinations standard by requiring (1) examinations of each working place before miners begin work in that place; (2) mine operators to notify miners of adverse working conditions in their working places; (3) the examination record to include:  the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect safety or health, and, when necessary, be supplemented to include the date of corrective actions taken for adverse conditions; and (4) operators to make examination records available to miners’ representatives, in addition to authorized representatives of the Secretary.

On September 12, 2017, before the initial version of the Final Rule took effect, MSHA proposed to modify it with respect to when the examination must begin and the adverse conditions and related corrective actions that must be included in the examination record.  With respect to timing of examination, MSHA proposed to modify the Final Rule such that the working place must be examined before work begins or as miners begin work.  With respect to records, MSHA proposed to modify the Final Rule so that adverse conditions that are promptly corrected need not be recorded.  Similarly, a record of corrective action would only be required for conditions that are not promptly corrected.  For purposes of this provision, MSHA stated that it interprets “promptly” to mean “before miners are potentially exposed to adverse conditions.”  MSHA solicited comments on this proposal.

In the latest version of the Final Rule released today, MSHA codified the September proposal but made no additional changes.  Although the Agency received numerous comments suggesting other ways to improve the rule, it either found that they were outside the scope of the rulemaking effort, or summarily disregarded them.

MSHA also announced that it will hold six stakeholder meetings to discuss the new rule.  Information regarding those meetings is as follows:

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

Responsible Attorney
Karen L. Johnston
303.390.0008
kjohnston@jacksonkelly.com

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