The Mine Safety and Health Administration (MSHA) has published its final rule regarding examinations of working places in metal and nonmetal mines that opens more leeway for those who are conducting the mine inspections to exercise their own judgment.
The regulation goes into effect on this June 2. The new requirements 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.
Could Have Been Worse
Attorneys at the law firm of Seyfarth Shaw point out that while the new regulation imposes new requirements on mine operators, it is notably less burdensome that previous iterations of the workplace examination rule that have been in process for several years. For example, they note, a previous proposed version of the rule would have required operators to examine workplaces before work began, but now the rule adds on “or as miners begin work in that place.”
The final rule apparently does not alter MSHA’s past requirement that inspections must take place near enough to the start of a shift so that conditions would not have changed before miners enter that work area. In the new version, however, an inspection doesn’t have to be completed for the entire mine before work begins. An inspection is only mandated for areas where work will actually take place during that shift.
Seyfarth Shaw attorneys also cite another example of the differences between the proposed and final rule. The earlier version would have required operators to notify miners of all identified conditions, even if those conditions had been corrected before work began. Now, under the final rule, notification will only be required regarding those conditions that are not corrected. In addition, operators need only make a record of conditions that are not promptly corrected.
Although the new rule is less burdensome on the regulated community than previous versions of the rule would have been, operators need to be mindful of potential pitfalls, the Seyfarth Shaw attorneys warn. The new rule appears to leave open the opportunity for MSHA to use operator examination records as “evidence” of a violation, or to support higher negligence findings.
“And of course, the new requirements will provide MSHA with more bases to issue citations, since it will be a violation to not complete the various requirements under the new rule, including documentation of the date corrective action is completed for issues not promptly corrected,” the Seyfarth Shaw lawyers observe.
The new rule also does little to allay mine operators’ fears that it could be used to expand enforcement by MSHA because it does nothing to limit personal interpretations by inspectors. These could include definitions of what is “prompt” correction of conditions or “prompt” notification to miners, as well as how close in time to the beginning of work an examination must be completed.
The provision calling for recording the date on which conditions are corrected could lead to operators to be charged for not correcting conditions quickly enough, and increases the work needed to keep examination records up to date.
MSHA announced that it will hold stakeholder meetings at six locations across the country to provide outreach and compliance assistance materials on the Final Rule. The schedule is: May 1, Bloomington, Ill.; May 15, Birmingham, Ala.; May 17, Pittsburgh; May 22, Reno, Nev.; May 24, Dallas; and May 31, Denver. In addition, the agency says it plans to hold stakeholder meetings in Seattle and at MSHA’s district offices by way of video teleconferencing at a later date.
