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MSHA Revisits the Workplace Exam Rule

 

 

By Christopher G. Peterson


June 2, 2018 - The Mine Safety and Health Administration (MSHA) published its final rule on examinations of working places, revising the existing workplace examination standard at 30 C.F.R. § 56/57.18002 (final rule). The final rule amends the first “final” workplace examination rule published on Jan. 23, 2017 (January 2017 rule). The January 2017 rule modified the existing workplace examination standards by requiring:


1. Examination of each working place before miners begin work in that place;


2. Mine operators to notify miners of adverse working conditions in their working places;


3. Completion of a record of examination to include: the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect safety or health and be supplemented with the date of corrective actions when necessary; and


4. Operators to make these records of examinations available to miners’ representatives and authorized representatives of the Secretary.


On Sept. 12, 2017, MSHA proposed to modify the January 2017 rule with respect to when the examination must be performed and which adverse conditions and related corrective actions must be included in the examination record. Regarding the timing of the examination, MSHA proposed to modify the January 2017 rule so that the working place must be examined before work begins or as miners begin work. As for the record requirements, MSHA proposed to modify the January 2017 rule so that adverse conditions that were promptly corrected did not need to be recorded. The final rule codifies these two proposals from the January 2017 rule, but otherwise makes no additional changes.


The final rule requires that a competent person examine each working place at least once each shift before work begins, or as miners begin to work in that place, for conditions that may adversely affect safety or health. The final rule also requires that the working place examination record include a description of each condition found that may adversely affect the safety or health of miners and is not corrected promptly. And finally, when a condition that may adversely affect the safety or health of miners is not corrected promptly, the examination record shall include, or be supplemented to include, the date of the corrective action. The final rule does not change the definition of “competent person,” “working place,” “promptly,” or “adverse conditions” as noted in the preamble to the January 2017 rule. According to MSHA, the final rule gives mine operators more flexibility on when to conduct their working place examinations, and the examination records will be less burdensome for operators since only those adverse conditions that are not corrected promptly, and the dates of corrective actions for those conditions, must be included in the record.


By allowing the examination to be performed before work begins or as miners begin work in that place, the final rule amends the January 2017 rule to allow miners to enter a working place at the same time that the competent person conducts the examination, and provides the option for a competent person to perform the examination at the same time miners begin working in that place. An examination is only required in those areas where work will be performed. If miners are not scheduled for work in a particular area or place at the mine, that place does not need to be examined.


MSHA states that it continues to be a best practice for operators to perform examinations to identify and correct adverse conditions as they occur throughout the shift. MSHA also states that it may be appropriate for mines with consecutive shifts that operate on a 24-hour, 365-day basis to conduct the examination for the next shift at the end of the previous shift. In these cases, MSHA will continue to permit mine operators to conduct an examination on the previous shift. However, MSHA cautions that operators should examine at a time sufficiently close to the start of the next shift to minimize miners’ potential exposure to conditions that may adversely affect their safety or health.


Under the final rule, a competent person must identify all conditions that may adversely affect safety or health, and the mine operator must promptly initiate appropriate corrective action. However, where an adverse condition is found that cannot be corrected promptly, the mine operator must promptly notify miners of the adverse condition and record the condition in the examination record. MSHA interprets “promptly” to mean before miners are potentially exposed to adverse conditions, even though the final rule allows mine operators to perform examinations at the same time miners begin work. MSHA states that the competent person designation is not restricted to supervisors and foremen. If designated by the operator as having the requisite experience and ability, a non-supervisory miner also may be a competent person to conduct the examination.


A record of the working place examination must be made before the end of the shift for which the examination was conducted. In addition to the date, name of competent person, and location of examination, the record must state a description of each condition found that may adversely affect the safety or health of miners that is not corrected promptly. This is a change from the January 2017 rule, which would have required the examiner to list each adverse condition found in the examination, even those that were corrected right away. MSHA believes the requirement to list only those adverse conditions not corrected will provide increased incentive to correct conditions when observed.


The final rule becomes effective on June 2, 2018. It is anticipated that MSHA will post compliance assistance materials on its website. 

 

Christopher G. Peterson is a member in Jackson Kelly PLLC’s Denver office where he practices in the Coal, Manufacturing, and Mining Law industry groups. 

 

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