October 21, 2018
The Mine Safety and Health Administration (MSHA) has issued enforcement guidance updates to its final rule on examinations of working places in metal and nonmetal mines. Finalized earlier this year, the rule officially went into effect on June 2 but enforcement was delayed until Oct. 1.
MSHA’s new requirements as of June 2 are:
A competent person must complete a workplace examination at least once each shift for each working place where miners are scheduled to work.
- The examination must be conducted “before work begins or as miners begin work in that place.”
- Mine operators must promptly initiate any necessary corrective actions for identified adverse health and safety conditions.
- Mine operators must provide timely notification of adverse conditions that are found but are not promptly corrected to miners who will be working in that place.
The examination record must be completed prior to the end of the shift, including the name of the person conducting the examination, the date of the examination, location of all areas examined, a description of each condition found which could adversely affect the safety or health of miners that is not promptly corrected, and the date of corrective actions taken.
The mine operator must keep a copy of the examination record for one year and make the record available to MSHA and the miners’ representative, with a copy provided upon request.
After the final rule was issued this spring, MSHA held stakeholder meetings in six cities across the country to provide outreach and compliance assistance materials to members of the industry.
New Guidance Offered
Margaret S. Lopez, an attorney with the law firm of Ogletree Deakins, notes that since the rulemaking began, MSHA has been providing mine operators with information on how the rule may be applied in mine inspections. The agency has been refining and adding to that guidance over time and recently issued critical new updates to its frequently asked questions (FAQ) on the rule.
For example, she points out that the latest guidance includes an important clarification on whether conducting a workplace examination will render someone an agent of the company and therefore subject to potential individual civil penalties.
“This is significant because there have been instances in which inspectors suggested to hourly miners that they are agents of the operator if they do a workplace examination,” Lopez says. “This has been causing a lot of confusion and needless concern.”
The agency has stated clearly in the rulemaking record that doing a workplace examination does not impose agent status on an hourly miner. An earlier version of the FAQ was less clear on this point.
MSHA has now issued a more definitively worded answer to one of its FAQs, stating that “conducting a workplace examination in and of itself does not make a miner an agent of the operator.” Lopez notes that this should take care of this issue, and operators that hear inspectors saying otherwise might want to direct them to this document.
The FAQ updates are less clear in how the new rule addresses workplace examinations in relation to contractors working on mine property, she observes.
“Regarding the question of whether a contractor and production operator must both examine the same working place if they each have employees in the same area (also known as “overlapping examinations”), the agency seems to be leaving open the possibility that a contractor’s workplace examination for an area will suffice for the production operator’s work in the area, and vice versa—but this is not entirely clear.”
The FAQ only goes so far as to state that “production operators and contractors may arrange any number of ways to ensure that required workplace exams are completed.”
Although it is not entirely clear, Lopez says MSHA’s new guidance does seem to place the burden on the production operator to ensure that its contractor’s workplace examination records are available to MSHA inspectors or miners’ representatives after the contractor is no longer working at the mine.
The FAQ states that contractor examination records must be available at the mine and that this can be accomplished by the contractor providing the production operator with a copy of the records. One concern of mine operators is that the new rule appears to leave open the opportunity for MSHA to use examination records as “evidence” of a violation, or to support higher negligence findings.
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