Breaking News: MSHA to Publish Final Rule for Workplace Exams in Metal and Nonmetal Mines

By Nicholas W. Scala and Justin Winter, Co-Chairs of Conn Maciel Carey’s national MSHA Practice

As a parting gift from Joe Main, the departing Assistant Secretary of Labor for the Mine Safety & Health Administration (MSHA), MSHA released this week the final rule for Examinations of Working Places in Metal and Nonmetal Mines. MSHA first proposed rebooting 30 C.F.R. §56/57.18002 on June 8, 2016. After an extended public comment period, ending on September 30, 2016, MSHA modified elements of the proposed rule while crafting the final version which will be formally published in the Federal Register next Monday, January 23, 2017.workplace-exam-rule

The effective date, when MSHA will begin enforcement of the new provisions within the final rule, is May 23, 2017 or 120 days following publication on January 23rd. Until the effective date, the existing provisions of §56/57.18002 will remain the standard for enforcement purposes.

Under the current standard mine operators must perform a workplace examination at least once per shift, maintain a record for twelve (12) months which must include the name of the examiner, locations of areas examined and the date.

The final rule, announced on January 18, 2017, will increase the responsibilities for mine operators to comply with the workplace exam standard. Effective May 23, 2017 operators must:

  1. Perform a workplace examination BEFORE any miners begin work in an area;
  2. Promptly notify miners of any adverse conditions in their working area before they are exposed to the adverse conditions;
  3. Maintain a record of the examination for twelve (12) months, which includes:
    • The name of the examiner
    • Date of the exam
    • Locations examine;
    • Descriptions of any and all adverse conditions found during examination (even if corrected immediately)
    • Date of corrective action
  4. Make records available to MSHA inspectors AND miner representatives, providing copies upon request.

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Announcing Conn Maciel Carey’s 2016 MSHA Webinar Series

MSHA Webinar SeriesAs we enter the home stretch of the Obama Administration, we are seeing increased MSHA enforcement, from more frequent and aggressive inspections to more citations with higher penalties.  MSHA is also trying to cram in a few more onerous new rules and regulations at the last-minute.  With the mining industry swirling to understand MSHA’s new proposed rules and enforcement efforts, it is more important now than ever before to be prepared for what’s ahead from MSHA. 

Conn Maciel Carey’s complimentary 2016 MSHA Webinar Series, hosted by the firm’s national MSHA Practice Group, is designed to give you the tools to avoid becoming the next MSHA-enforcement poster child. 

How Changes to MSHA’s Workplace
Exams Rule Will Affect Your Mine

Thursday, September 15th

Navigating Multi-Employer
Mining Sites

Tuesday, November 15th

MSHA, OSHA, and Employment Law Impacts of the Upcoming Presidential Election

Tuesday, October 25th

MSHA Hazard Complaints and Whistleblower Protections

Thursday, December 15th

 SEE BELOW FOR DESCRIPTIONS OF EACH WEBINAR AND REGISTRATION LINKS

Click here to register for the entire series.

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MSHA Announces Proposed Rule on Workplace Exams

By: Nicholas W. Scala and Justin M. Winter

Last week, MSHA released its Proposed Rule for the Examinations of Working Places in Metal and Nonmetal Mines in the Federal Register, the Proposed Rule was formally published on June 8, 2016. The Proposed Rule addresses modifications to the current MSHA standards regarding Examinations of Working Places, 30 C.F.R. §56.18002 and §57.18002 (for underground M/NM mines).MSHA Rule

In the proposed rule, MSHA suggests modifications to the examination format and record keeping requirements of the existing standards.  Under the existing workplace exam standards, a mine operator is required to comply with the following provisions:

“(a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.

(b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.

(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination 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.”

During the last 22 years, MSHA issued five Program Policy Letters (PPL) clarifying and emphasizing certain aspects §56/57.18002. Most recently, MSHA issued a PPL in July 2015 that many considered de facto rulemaking for the way it discussed the future enforcement of training requirements for competent persons. The July 2015 PPL (PPL P15-IV-01) encouraged that a foreman or other supervisor act as the competent person for the purpose of workplace exams as a “best practice.” A best practice that also directly links the recognition of hazards, or lack thereof, to the company through an agent of management for elevated enforcement from MSHA, and possibly special investigation under Section 110 of the Mine Act.

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Announcing Conn Maciel Carey’s New “MSHA Defense Report” Blog

Conn Maciel Carey is pleased to announce the launch of the The MSHA Defense Report blog, curated by the top-notch MSHA attorneys in our national MSHA • Workplace Safety Practice Group.

The MSHA Defense Report will provide stakeholders in the mining industry with useful legal and regulatory updates, as well as analysis of trends in the mine safety and health legal landscape. Whether reviewing new decisions from the Federal Mine Safety & Health Review Commission and its Judges, or the latest important enforcement initiatives policy and rulemaking issues from the Mine Safety and Health Administration, The MSHA Defense Report will be the destination for the nation’s mine operators to access the latest news about the full range of safety and health topics affecting the Industry.

MSHA Blog

As a true complement to Conn Maciel Carey’s national OSHA Practice Group and its OSHA Defense Report blog, the MSHA Practice and its new MSHA Defense Report blog are valuable resources to learn about the significance of new legal developments in federal mining regulation from the quarry to the courtroom, helping operators prepare and respond.  The blog will also offer practical advice and creative solutions, with the goal of minimizing exposure to liability.

We hope you visit the blog often and provide the MSHA Group with feedback about topics of interest.

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Conn Maciel Carey Launches MSHA Practice and Adds Prominent Mine Safety & Health Attorneys

Conn Maciel Carey is thrilled to announce the addition of Justin M. Winter and Nicholas W. Scala, prominent Washington, D.C. Mine Safety & Health Law specialist attorneys, to the firm’s national Workplace Safety Practice. Mr. Winter and Mr. Scala will serve as Co-Chairs of the fMSHA Practice Page Imageirm’s new national MSHA Practice Group, which expands and complements the firm’s Workplace Safety Practice.  They have extensive experience and expertise in handling complex Mine Safety and Health Administration (“MSHA”) rulemaking, as well as regularly assisting clients in accident and fatality investigations and a broad range of enforcement-related matters.

Conn Maciel Carey’s national MSHA Practice Group will represent and advise metal/non-metal and coal mining companies, cement manufacturers, construction entities and other employers that operate in the mining industry in all phases of interaction with MSHA, particularly companies challenging and litigating enforcement by the agency.

Conn Maciel Carey announced the news of its new MSHA Practice in a press release that discussed the value Mr. Winter’s and Mr. Scala’s experience and expertise will provide to the firm’s clients.  Continue reading