Jackson Kelly PLLC

Workplace Safety and Health News Alert

MSHA ISSUES FINAL WORKPLACE EXAMINATION RULE

January 16, 2017

By: Karen L. Johnston

For clients and friends of Jackson Kelly PLLC
Volume 13, Number 3
©2017 Jackson Kelly PLLC

Today, the Federal Mine Safety and Health Administration (“MSHA”) released for public review its final rule for workplace examinations for metal and nonmetal mines. 30 C.F.R. § 56/57.18002. The rule will be published in the Federal Register on January 23, 2017. The final rule requires that a competent person designated by the operator examine each working place at least once each shift, before miners begin work in that place, for conditions that may adversely affect safety or health; that operators notify miners in the affected areas of any conditions that may adversely affect their safety or health; that operators promptly initiate corrective action; and that a record be made of the examination. The rule will become effective on May 23, 2017. While the final rule is similar to the proposed rule, a few differences exist.

Similar to the proposed rule, examinations of each working place must occur before miners begin work in any “working place.” Operators then are 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 without documentation for mine operators to prove notification occurred if a dispute arises. If adverse conditions are corrected before work begins, notification is not required.

Each examination record must include: name of the competent person conducting the exam, date of the exam, 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. Contrary to the proposed rule, miners conducting the exam do not have to sign the exam record.

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.

The final rule does not change the definition of a competent person. 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, that 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.

Further, MSHA continues to define working place as any place in or about a mine where work is being performed. MSHA provides examples that a “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 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.

Many operators’ concerns about the proposed rule still exist in MSHA’s final rule. First, noting adverse conditions on the examination records raises the concern that MSHA will cite operators for violations it finds and records even if operators are in the process of abating or already abated those conditions. Once adverse conditions are noted, operators must be diligent in stating the date the condition was abated in order to try and prevent citations for those noted conditions.

Lastly, operators must resolve a timing problem in order to comply with the rule. Mine operators must designate a competent person to conduct an examination before work begins in all working places. 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 this 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.

The following link will take you to the pre-publication copy of the final workplace examination rule: https://s3.amazonaws.com/public-inspection.federalregister.gov/2017-00832.pdf. The final rule is scheduled to be published in the Federal Register on January 23, 2017, and will be available online at: https://www.federalregister.gov/documents/2017/01/23/2017-00832/examinations-of-working-places-in-metal-and-nonmetal-mines.

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

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

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