Workplace Exam

By Nicholas W. Scala, Chair 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.

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 23^rd. 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:

Perform a workplace examination BEFORE any miners begin work in an area;
Promptly notify miners of any adverse conditions in their working area before they are exposed to the adverse conditions;
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
Make records available to MSHA inspectors AND miner representatives, providing copies upon request.

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By: Nicholas W. Scala

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).

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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