Workplace Safety and Health News Alert

SUMMARY OF MAY 17, 2018, MSHA STAKEHOLDER MEETING ON WORKPLACE EXAMINATION RULE

May 20, 2018

For clients and friends of Jackson Kelly PLLC
Volume 14, Number 10
©2018 Jackson Kelly PLLC

On Thursday, May 17, 2018, in Pittsburgh, Pennsylvania, the Mine Safety and Health Administration (“MSHA”) held the fifth of its stakeholder meetings on the revised Workplace Examination Rule for metal/nonmetal mines. Below is a summary of the proceedings.

The session was presented by Kevin G. Stricklin, Acting Administrator for Metal and Nonmetal Mines. The only other person in attendance from MSHA was Kevin H. Abel, Acting District Manager for the Northeast District. The session was transcribed by a court reporter and will be made available on the MSHA website.

Mr. Stricklin reviewed the rule and stated that the same presentation is being given to MSHA District Managers and Inspectors.

The rule becomes effective on June 2, 2018, but MSHA does not intend to issue citations on it until October 1, 2018. Mr. Stricklin stated that the exception would be if an operator is simply not doing workplace examinations or is making no effort to comply, which may then result in an enforcement action. However, the expectation is that if operators are making a good faith effort to comply, enforcement action will not be issued during this period.

During the June 2, 2018 - October 1, 2018, period, MSHA encourages operators to implement their procedures and work with Inspectors, Field Office Supervisors, and District Managers to ensure that their procedures meet the requirements of the rule. MSHA has offered to conduct on‑site training for operators and some companies have already scheduled this. Educational Field Services (“EFS”) will also be available.

MSHA’s website has a quiz for companies to utilize to assess whether personnel are competent persons to conduct a workplace exam. The quiz is not required, but companies can use it as a tool. There is no formal requirement for how to determine that one is a competent person, and no requirement to document training for competency on a 5000-23 Form.

In terms of the timing of the examination, as the revised rule states, the examination must be done before work begins or as miners begin work in that place. Mr. Stricklin stated that if an examination is done before the work begins, it should be done close in time to the beginning of the work so that conditions do not change. For operators that run shifts 24/7, this could be conducted at the end of the preceding shift. If an examination is done “as miners begin work,” and a group of miners goes to an area that has not been examined yet, the competent person should examine it first before the other miners are exposed to the area (i.e., the other miners can “hang back” until the competent person performs the examination).

There was a discussion about whether a few specific conditions would constitute a “condition that may adversely affect safety or health.” While Mr. Stricklin offered his opinion on each example, no concrete rule was offered for such determination.

Mr. Stricklin said that notification to miners could be done verbally, by barricade, or by signage. There is no requirement as to the specific contents of the sign if signage is used. Mr. Stricklin commented that he believed that tape would be sufficient in some cases. Mr. Able offered that whatever means is used for notification should be recognized by miners that it constitutes notification of an adverse condition.

Regarding recordkeeping, someone other than the person who actually completes the examinations may fill out the record, but the name of the person who did the examination must be included.

MSHA considers travelways to be working places when they are places that miners travel as part of the mining process. This is the case even though 30 C.F.R. § 56/57.2 defines a “travelway” separately from a “working place.”

Mr. Stricklin commented that the mine operator, (what he termed the “Mine ID operator”), is ultimately responsible for the safety of all contractors at their site but can coordinate with contractors the responsibility for who should complete the workplace examinations. In a comment that could have significant implications, Mr. Stricklin stated that the “Mine ID operator” is responsible for maintaining all workplace examination records, regardless of whether it or the contractor actually performed the examination. There is no such explicit requirement in the Workplace Examination Rule and such a requirement could be a significant burden for certain operators.

Mr. Stricklin stated that only areas where miners work will require an examination and that if an area is barricaded and is kept barricaded, no examination would be required of it. Additionally, he stated that he would expect an examination to be completed prior to a tour of the plant.

There was a discussion of what constitutes a condition that is “promptly corrected,” such that it would not have to be recorded. Mr. Stricklin repeated what was said at other sessions, which is, that if a condition is corrected by the end of the shift, it doesn’t have to be recorded. For example, if the condition is found at 8:00 a.m., and the shift runs until 4:00 p.m., if the condition is corrected at 3:59 p.m., there is no need to record it. Further, conditions found on one shift and not corrected, and thus recorded, need not be recorded on subsequent shifts prior to correction. The notation of the corrective action should be made on the record of the examination where the condition was first found. Mr. Stricklin stated that he would need to get more guidance as to whether a work order attached to the examination record would suffice for documentation of corrective action

Electronic recordkeeping is acceptable as long as it is secure and cannot be altered after the record is made. A question was asked regarding whether a link to a work order would be acceptable to show the location of the examination. Mr. Stricklin commented that if the work order is hyperlinked, it would be acceptable, but if too many steps were needed to get the information, it would not be.

Mr. Stricklin stated that MSHA does not consider miners to be “agents of the operator” for § 110(c) purposes simply by virtue of their being competent persons to do workplace examinations.

MSHA has four additional stakeholder meetings planned:

May 22nd in Reno, NV
May 24th in Dallas, TX
May 31st in Denver, CO
June 6th in Arlington, VA, with video/teleconference

Jackson Kelly PLLC will keep you updated as additional information is provided through other stakeholder meetings.

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

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

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