A Practical Look at the Impact of MSHA’s Proposed Rule on Workplace Examinations in Metal/Nonmetal Mining OperationsJune 16, 2016 – Articles
Less than a year ago, in response to a rise in metal/nonmetal fatal accidents, Joe Main, the Assistant Secretary of Labor for Mine Safety and Health declared that “recent fatalities and other accidents [in metal/nonmetal] suggest miners would benefit from rigorous work place examinations conducted by experienced and trained examiners.” On June 7, 2016, Assistant Secretary Main made good on his pledge to revamp the workplace examination standards by releasing the proposed workplace examination rule.
Billed by MSHA as a tweak to the current workplace exam regulation, the proposed rule expands on the additional obligations MSHA placed on mine operators in its July 2015 Program Policy Letter No. P15-IV-01 (July 2015 PPL). In practice, the proposed rule amounts to a comprehensive rewrite of 30 C.F.R. Sections 56/57.18002. MSHA purports that a reworking of the workplace examination regulations will ensure mine operators identify and correct conditions that may adversely affect a miner’s safety or health. The proposed rule, if fully implemented, is likely to result in increased liability of mine operators and an increase in the number of civil penalties assessed against workplace examiners for alleged “knowing” violations of the Federal Mine Safety and Health Act (Mine Act).
This article discusses the anticipated obligations of operators under the proposed rule, and the practical impact it may have on day to day operations at metal/ metal/nonmetal mining operations across America.
Analysis of the Text of the Proposed Rule
Sections 56/57.18002 Examination of working places
(a) A competent person designated by the operator shall examine each working place at least once each shift, before miners begin work in that place, for conditions that may adversely affect safety or health.
The Competent Person Standard
The regulation permits the operator to designate a “competent person” as the workplace examiner. On its face, MSHA’s proposed rule does not require that the operator designate a foreman or supervisor to fill that role, notwithstanding the fact that the July 2015 PPL suggested doing so as a best practice. However, it is important to keep in mind that the July 2015 PPL, clearly stated that hourly miners can be designated as a “competent person” provided they have experience and ability to recognize “hazards” that would be predictable to someone familiar with the mining industry in the particular work area.
The text in subpart (a) of the purposed rule appears to state that the test is one of competence and not job title. However, this does not answer the question raised during MSHA’s June 7, 2016 stakeholders meeting announcing the proposed rule – will the competent person become an agent of the mine operator? Or, stated differently – is the hourly workplace examiner an agent of the mine operator when conducting workplace examinations?
In response, MSHA’s stakeholder meeting representative stated the proposed rule did not change the definition of the term competent person. Ironically, MSHA’s dodging of the question provides a clear answer to the question. A competent person is defined as a person having the abilities and experience that fully qualify him to perform the duty to which he is assigned 30 C.F.R. Sections 56/57.2.1 Nothing in this definition limits placing the competent person badge on an hourly worker conducting a workplace examination. Accordingly, nothing prevents MSHA from considering an hourly workplace examiner an agent of the operator and subject to potential liability under Section 110 of the Mine Act.
On a positive note MSHA makes it clear in the preamble that the term “working place” does not include roads not “directly involved” in the mining process, such as administrative office buildings, parking lots, lunch rooms, toilet facilities or inactive storage areas. This was not clear in the July 2015 PPL or in subsequent guidance documents following its release.
Nevertheless, MSHA’s effort to clarify this point leads to further confusion by not providing definitions for the areas identified above. For example, what constitutes a road “directly involved in the mining process” or “an inactive storage area?” The phrase “working place” is defined in 30 C.F.R. Sections 56/57.2 as “any place in or about a mine where work is being performed.” Arguably, any place where miners travel can be considered a working place by MSHA. It is important to note that while a road may not be subject to a workplace examination it may still be subject to an MSHA inspection.
Mine operators should endeavor to clarify with MSHA which roads on mine property it considers to be directly involved in the milling process. Lastly, MSHA’s reference to an exclusion of “parking lots” from workplace inspections will provide operators with leverage in a future situation where the MSHA inspector issues an inadequate workplace examination based on parking lot conditions.
“Before Miners Begin Work In That Place”
The proposed rule contains language in subpart (a) that attempts to define when the workplace examination will be conducted. The current workplace examination regulation allows operators to conduct the workplace examination at any point so long as it is examined at least once each shift. As a practical matter, under the existing regulation, most operators probably conduct the workplace examination before miners begin working in area. If not, the examination would have no real value. The inclusion of this time frame language in the proposed rule appears targeted at operators who view the workplace examination as simply a record keeping exercise. For a majority of operators the obligation to conduct the workplace examination before miners begin work will likely not create much of an impact.
What is troubling is the question being bantered around following MSHA’s release of the proposed rule – how long before miners begin working must the workplace examination be conducted? The proposed rule’s current language is conveniently silent on the issue – leaving room for additions to the mandate following the notice and comment period. Not surprisingly, MSHA is seeking comment on whether the agency should require examinations be conducted within a specified time period before miners begin working in an area.2 MSHA’s request for comment suggests the agency is eager to establish time frames similar to those set forth in the pre-shift regulations in underground coal.3 Metal/nonmetal operators should take heed of MSHA’s request and closely study the requirements in 30 C.F.R. Section 75.360, including the certification and record keeping requirements in subparts (f) and (g) of the standard. The development of well thought out comments on this subject will be critical during the proposed rule’s comment period.
Make no mistake, increased and arbitrary enforcement will still be the rule. MSHA inspectors have enormous discretion to issue enforcement actions for inadequate workplace examinations based solely on the inspector’s subjective observations. This is likely to lead to the issuance of inadequate examination enforcement actions simply because a condition exists, even if it did not exist at the time of the workplace examination or was not reported because the examiner did not believe it “adversely affected safety or health.” Inspectors can simply compare recent examination reports to their observations to support enforcement actions, which poses a compliance “Catch-22” for mine operators. Any condition or violation observed by an inspector can be deemed a “hazard” or as having an adverse affect on safety and health.
“Conditions Which Adversely Affect Safety and Health”
Much like the July 2015 PPL, the proposed rule fails to define the phrase “conditions that may adversely affect safety or health.” This phrase continues to be vague and ambiguous.4 The up side to this is the lack of a definition of the phrase provides examiners with discretion in determining which conditions actually adversely affect safety and health. In other words, examiners will still be able to rely on the time honored reasonably prudent person test while defending MSHA allegations of an inadequate workplace examination. This important legal construct provides a basis, during litigation to emphasize the workplace examiner’s assessment of the conditions cited by MSHA at the time he observed the conditions. Likewise, if the competency of the examiner is not called into question, then the examiner’s subjective opinion should be given deference to meet the reasonably prudent person test. This could result in an increase in enforcement actions for training violations in conjunction with inadequate examination enforcement actions as the competency of the examiner will be judged subjectively by an inspector.
(a)(1) The operator shall promptly notify miners in any affected areas of any adverse conditions found that may adversely affect safety or health and promptly initiate appropriate action to correct such conditions.
The proposed rule maintains MSHA’s mandate in former subpart (a) to “promptly initiate appropriate action to correct conditions found that may adversely affect safety or heath. However, what is new in the proposed rule is a requirement that operators promptly notify the miners in any affected areas of any adverse conditions found during the workplace examination. This requirement is problematic for a number of reasons.
To begin with, the proposed rule does not explain how the workplace examiner will document his notice to the miners in the area. This information will become crucial to the workplace examiner charged with failure to notify miners of adverse conditions found in the workplace. Nothing in subpart (b) of the proposed rule, which requires a record of the examination, addresses this important notice requirement. One thing is certain – if a workplace examiner fails to create a record of the names of the individuals he notified and the time of the notification, this is fertile ground for MSHA to issue an enforcement action against the operator and quite possibly the workplace examiner. This issue should be thoroughly vetted to MSHA during the comment period of the proposed rule.
What happens when an inspector observes a condition during an inspection that was not reported by the workplace examiner or may not have existed at the time of the examination? Has the operator violated subsection (a)(1) because the miners would not have been notified of a condition that developed between examinations? Moreover, how can prompt corrective action be taken if a condition is not known to exist, develops between examinations without knowledge on the part of the examiners or mine management, or was deemed by the examiner to not “adversely affect safety or health?” How are the miners to be notified?
From a practical standpoint, workplace examiners can report conditions before a shift begins through communication with supervisors of oncoming shifts or directly with work crews in pre-shift meetings. This is the process used in underground coal to comply with the pre shift requirements in 30 C.F.R. Section 75.360. Of course, to do so the workplace examiner would need to begin the examination in advance of a shift change. This is precisely why MSHA is seeking comment on whether the agency should require examinations be conducted within a specified time period before miners begin working in an area. It is also the reason Assistant Secretary Main stated the communication to miners requirement mimics pre-shift examinations underground.
The proposed rule also fails to define “appropriate action” to correct conditions. Is reporting the condition “promptly initiating appropriate action to correct such conditions?” Is dangering off the affected area sufficient? Or does the proposed rule require that the condition be completely abated? The type of “appropriate action” taken may be dependent on the nature and extent of the condition and will need to be evaluated on a case-by-case basis. It is important to remember that the type of action that should be taken will likely be judged by the MSHA inspector based on his own subjective belief.
Lastly, how long after a condition is reported does the operator have to “initiate appropriate action?” Again, the term “promptly” is vague and will depend on the particular circumstances of the condition. The fact remains that the operator and inspector can differ in their opinion of when and to what extent corrective action must be initiated.
(a)(2) Conditions noted by the person conducting the examination that may present an imminent danger 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.
The “imminent danger” provision of the proposed rule is essentially the same as the current regulation.
(b) A record of each examination shall be made and the person conducting the examination shall sign and date the record before the end of the shift for which the examination was made.
(1) The record shall include the locations of all areas examined and a description of each condition found that may adversely affect the safety or health of miners.
(2) The record also shall include:
(i) A description of the corrective action taken,
(ii) The date that the corrective action was taken, and
(iii) The name of the person who made the record of the corrective action and the date the record of the corrective action was made.
Both the proposed rule and the existing regulation require that an examination record be made and kept by the operator. However, the proposed rule significantly increases a mine operator’s responsibilities for reporting conditions that may adversely affect safety or health. The current workplace examination regulation only requires that a record of the examination be kept by the operator for a period of one year and made available for review by the Secretary or his authorized representative. MSHA’s Program Policy Manual expanded upon the regulation requiring mine operators to record the examiner’s name, the date of the examination and the working place examined.
The proposed rule in subpart (b) and beyond broadly expands the operator’s responsibility in terms of conducting and recording workplace examinations. For example, the workplace examination must be made, signed and dated by the same examiner before the end of the shift for which the examination was made. Any variance from this standard (i.e., signing the next day; having someone sign in your absence, etc.) will likely be construed by MSHA as falsification of a record – a potential criminal action under the Mine Act. Workplace examiners must be aware of the proposed requirements and be prepared to vigilantly adhere to the standard.
In subpart (b)(1), the proposed rule requires the record to include the “locations of all areas examined.” This raises questions of how specific the examiner’s report must be because the breadth of the areas requiring examinations could be extensive. Should the mine examiner use general descriptions of the areas? If so, will it be possible for an MSHA inspector to issue enforcement actions for a reported condition, even if it is actually a different condition, and assert that the operator failed to take appropriate corrective action? Additionally, let us not forget about those conditions not reported because the examiner did not believe they adversely affected safety or health.
Subpart (b)(1) also requires the workplace examiner to provide a “description of each condition found that may adversely affect the safety and health of miners.” Again, how specific must the description be? Is it acceptable to simply explain that debris was found in a walkway? Or, will MSHA inspectors insist on detailed descriptions of condition? Operators would be wise to caution workplace examiners against becoming overly descriptive for fear of overstating a condition which will ultimately becomes an admission against the operator’s interest.
In addition, we often find that competency of the workplace examiner and the thoroughness of his or her examination is often subjectively judged by the MSHA inspector based on conditions the MSHA inspector observed after the examination. A proper workplace examination can be made to appear inadequate or the examiner incompetent simply because a condition is found by the MSHA inspector, regardless of when the condition actually developed or whether or not is was reported. Mine operators can expect that MSHA inspectors will be actively seeking copies of the descriptive workplace examination records to support allegations of inadequate examination enforcement actions and to use those records as road maps of areas to inspect.
Subpart (2)(i) through (iii) of the proposed rule requires the workplace examination record to reflect a description of the corrective action taken, the date the corrective action was taken, the name of the person who made the record of the corrective action, and the date the record of the corrective action was made.5 It should be obvious to even the casual observer (a favored phrase incorrectly used by many MSHA inspectors) that this portion of the proposed rule creates a record which will allow MSHA to track the time period of abatement for conditions listed in the report.
Using the information provided in each of these categories, MSHA inspectors will closely scrutinize the timing and extent of the corrective action taken by the operator by reviewing the workplace examination records. Any lack of a follow-up examination could be viewed as a failure to correct reported conditions “within a reasonable time.” Thus, inspectors can use this information to cite the operator under subpart (a)(1) of the proposed rule based on their subjective determination that the operator failed to promptly initiate appropriate action to correct the condition. This information could also come in handy to MSHA in support of a Section 104(b) failure to abate order. While it is laudable to promote prompt corrective action in the name of safety, mine operators must remain mindful of the potential for arbitrary enforcement through such undefined requirements.
(3) The operator shall maintain the examination records for at least one year; shall make the records available for inspection by authorized representatives of the Secretary and the representatives of miners; and shall provide these representatives a copy on request.
The existing rule requires a record that a workplace examination was conducted and kept by the operator for a period of one year and made available for review by the secretary or his authorized representative. The issue with the existing rule was its failure to identify exactly what needed to be in the workplace examination record. As is often the case, MSHA’s program policy manual picked up the slack in the current regulation requiring the record to contain the date of the examination, the examiner’s name and the working place examined (MSHA Program Policy Manual Vol. IV (Sept. 2003)(Release IV-21). Consequently, when MSHA came calling for copies of workplace examination records, savvy operators produced the information set forth in MSHA’s program policy manual. Currently, there is at least one case at the Federal Mine Safety and Health Review Commission challenging MSHA’s authority to request additional information in workplace examination records beyond what is set forth above.
The proposed rule in subparts (b)(1) and (2) appears to be an attempt by MSHA to close the gap in the existing workplace examination rule by describing the information it expects to see in future workplace examination records. The proposed rule also extends rights to miner’s representatives to obtain copies of workplace examination records. Thus, without strong objection to the proposed rule, records that were arguably deemed to be company records will now become records belonging to all mine employees. The possibility for impropriety in the use and disclosure of these documents is concerning.
Practical Tips for Operators to Prevent Enforcement Actions for Inadequate Examinations
Assuming MSHA implements a final rule that is largely unchanged from the proposed rule, mine operators should be proactive and take necessary steps to prevent inadequate workplace examination enforcement actions. First, mine managers should make a thoughtful selection of competent examiners, who exhibit previous abilities and experience in recognizing particular issues that may be present in a particular working area. Obviously, if the person lacks the ability or experience, the operator must designate a competent person. MSHA enforces the term “competent person” as it is defined in Sections 56/57.2 “[a] person having abilities and experience that fully qualify him to perform the duty to which he is assigned.” Workplace examiners should receive comprehensive hazard recognition training that focuses on the types of hazards they may encounter in the assigned work areas and to evaluate them based on their knowledge, past experience, training and familiarity with the specific or types of work areas involved. Mine operators should also provide training to examiners and foremen on their rights and responsibilities as examiners and on the civil and criminal consequences of Section 110(c) special investigations that could arise from a dereliction of duty in performing examinations. Examiners are more likely to take their examination duties seriously if they understand their own liability risk, which will improve their performance and the company’s safety culture.
Second, MSHA’s focus will be on the quality of examinations as judged by the inspector. MSHA inspectors will call into question the competency of the examiner or the adequacy of examinations where multiple violations are found during the same inspection or in the same working areas or repeated violations of the same standards. As stated above, MSHA inspectors also scrutinize operations for violations of the “Rules to Live By” standards. Because MSHA considers any violations of the “Rules to Live By” standards as conditions that “adversely affects safety and health,” examiners should be thoroughly trained regarding those standards and any violations of those standards should be reviewed and discussed with the examiners to increase their awareness and understanding of them. Mine operators should also regularly review the mine’s history of violations with examiners to survey the standards that are most frequently cited at the mine or recurring conditions and discuss ways to better detect and prevent such conditions. Examiners should also be knowledgeable of the 20 most frequently cited standards by MSHA, which is available on the agency’s website and to be diligent in looking for such conditions. Examiners should err on the side of reporting marginal conditions.
Examiners should be encouraged to keep personal notes with accurate dates, times, areas and conditions examined. These personal notes should never be given to an MSHA inspector. If the workplace examiner is questioned by an MSHA inspector regarding personal notes, the request should be turned over to the safety director for consultation with legal counsel. Examiners should also note conditions they believe are not hazards in the event an inspector may disagree. Management should conduct periodic, random safety audits and follow-up examinations to evaluate the performance of examiners and promptly address any deficiencies.
Mine operators should expect MSHA inspectors to scrutinize examination records for a more detailed description of conditions found and should periodically audit the records to ensure adequate reporting. Train examiners regarding the proper methods for reporting conditions and to avoid over-writing conditions in the record, editorials, opinions, speculation and over generalizations of conditions. The reports should be entirely factual.
It is imperative to communicate with all employees about examination reports and enforcement actions and to include and discuss them in frequent safety meetings. Focus efforts toward prevention of reoccurrences. Frequent review of MSHA regulations, enforcement actions and trends, as well as attendance at industry events by employees, will increase their understanding of compliance issues. Creating an open dialogue with employees about safety and compliance is important to improving safety culture since the hourly miners are the first line of defense in preventing, detecting and correcting safety concerns.
Third, MSHA has stressed the importance of taking prompt corrective action and recording such action. Mine operators must be diligent in promptly correcting reported conditions and taking necessary steps to initiate appropriate action. Mine operators must ensure that follow-up examinations and reports are made, including for conditions requiring more than one shift to correct. The examiner or person taking corrective action should note in the record progress being made where abatement efforts are ongoing and overlap shifts. Mine operators must train examiners to think beyond abatement to identify enforcement trends or the existence of systemic, reoccurring or latent hazards.
Mine operators should develop carefully crafted safety and disciplinary policies. Management must enforce these policies vigorously and consistently. Management should also carefully scrutinize any enforcement actions issued for inadequate examinations and related enforcement actions and conduct any necessary follow-up, communication with employees, training or discipline. Examiners and management personnel should be careful to avoid making any statements that could be construed as an admission against interest as MSHA inspectors routinely obtain statements from miners to support their argument that the condition existed at the time of the last examination, that it should have been observed or that management was aware of it.
Lastly, management should conduct an immediate investigation of any enforcement action to preserve evidence. Consideration should be given whether to request an informal conference with MSHA or to contest inadequate examination enforcement actions under Section 105(d) of the Mine Act, especially if they are issued as Section 104(d) unwarrantable failure actions. Such enforcement will be considered by MSHA for a possible “knowing” violation under Section 110 of the Mine Act, which could result in a special investigation of the examiner or managers for personal civil or criminal liability.
MSHA’s proposed rule on workplace examinations for metal/nonmetal is expected to create a significant burden on mine operators and their examiners. The proposed rule remains vague and provides little clarification of the extent of the mine operator’s responsibilities. Based on our analysis, significant questions remain unanswered about the proposed rule, and the metal/nonmetal community should carefully evaluate it and be proactive in developing comments to MSHA addressing industry concerns and being heard during rule-making proceedings. Nevertheless, it is inevitable that MSHA will finalize a new rule on workplace examinations with more stringent requirements. Mine operators would be well advised to begin preparing for this change and take necessary steps to mitigate the hardships and make an effective transition as outlined above.
1 In spite of a regulatory definition of the competent person in the preamble to the purposed rule MSHA is seeking comment on whether the agency should require the competent person to have a minimum level of experience or particular training or knowledge to identify workplace hazards. Operators should be aware of this request and offer comment on this important topic, because it could lead to future MSHA administrative regulatory guidance (i.e., PIPS, PPLS, and PPMs).
2 During the June 7, 2016, stakeholders meeting Assistant Secretary Main stated that “this notification of hazards and the communication to miners mimics pre-shift examinations underground.”
3 Section 75.360 – Preshift examination at fixed intervals.
(a)(1) Except as provided in paragraph (a)(2) of this section, a certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground. No person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the established 8-hour interval. The operator must establish 8-hour intervals of time subject to the required preshift examinations.
4 During the June 7, 2016, MSHA stakeholder meeting announcing the proposed rule Assistant Secretary Main pointed to statistics between 2010-2015, which showed that 60 percent of mining fatalities are linked to standards set forth in MSHA’s “Rules to Live By” initiative. Mine operators do not have the luxury of a legal definition of a “condition that may adversely affect safety or health.” However, MSHA’s statistics provide examiners with a baseline of what MSHA will likely use to judge the competency of an examiner and the quality of his or her workplace examination. Operators would be wise to have examiners study each iteration of MSHA’s “Rules to Live By” initiative as the proposed rule makes its way through MSHA’s comment period.
5 The preamble to the proposed rule states that MSHA expects the person taking the corrective action to make the record of the corrective action. This is problematic because the person making the corrective action may not be the person who conducted the workplace examination. For example, if a non-electrician workplace examiner discovers an electrical condition that may adversely affect the safety and health of miners, he would likely call an electrician to correct the problem. The preamble requires the electrician, not the workplace examiner, to record the corrective action in the workplace examination record. If the purposed rule is adopted, operators should be sure to make their workplace examiners aware of this requirement, as confusion in workplace examination records is often cast by MSHA inspectors as a deliberate act.