On October 1, 2018, enforcement began in earnest by the Mine Safety & Health Administration (MSHA) for its revised standard governing workplace examination requirements at surface and underground metal/nonmetal mines. The final rule, which was published in the April 9, 2018, Federal Register, applies to mine operators at a variety of operations (including stone, sand and gravel pits, cement plants, metal mines, and processing facilities for alumina and taconite).
SAME FOR CONTRACTORS
However, the rule imposes the same requirements on contractors who perform services or maintenance activities at such mine sites, including construction companies, electrical, and mechanical contractors. Even though a company may normally be under OSHA jurisdiction, when performing work at a “mine” (including areas and roads appurtenant to the mine) the contractor falls under MSHA jurisdiction.
The current maximum MSHA penalty per citation is $259,725, about double the OSHA maximum. Compliance with analogous OSHA rules is not a defense, as the Mine Act is a strict liability statute. Contractors are also considered to be “miners” under the Act in most circumstances. If the examiner is an “agent” based on other responsibilities, they can be personally fined up to $70,000 for a missing or an inadequate exam, in addition to any penalty against the employer. Falsified examination records can be punished by up to 5 years in the federal penitentiary, plus additional fines.
Technically, the effective date was June 2, 2018, but MSHA agreed to generally refrain from issuing citations in order to complete its series of stakeholder outreach activities and to issue new guidance on the revised requirements. The 2018 rule replaces a long-standing MSHA rule, codified at 30 CFR 56/57.18002, by adding more robust notification and documentation requirements.
HERE ARE THE RULES
As finalized in the 2018 iteration, the rule requires mine operators and all contractors at mine sites to:
- Have a competent person examine each working place for conditions that may adversely affect the safety or health of miners. The working place must be examined at least once each shift, before work begins or as miners begin work in that place;
- Promptly initiate appropriate corrective action when adverse conditions are found;
- Promptly notify miners in affected areas if adverse conditions are found and not corrected before miners are potentially exposed;
- Withdraw all persons from affected areas when alerted to any conditions that may present an imminent danger, until the danger is abated;
- Create an examination record before the end of each shift that includes: The name of the person conducting the examination (not just initials); Date of the examination; Location of all areas examined; A description of each condition found that may adversely affect the safety or health of miners that is not promptly corrected; and The date when the described condition is corrected;
- Make the examination record available to MSHA and miners’ representatives, with a copy provided upon request. Records must be kept for a rolling 12-month period. The previous exception, in MSHA’s Program Policy Manual, which allowed to be discarded once the mine had been inspected, is no longer in effect. The record can be made at any time before the end of the shift. Once an adverse condition is recorded, it does not need to be re-recorded each shift until corrected, but once it is corrected then the date of correction must be added to the original record. Records can be maintained in any format, including electronic, as long as they are available upon request and also cannot be altered if stored on a computer system.
COMPETENT PERSON
Many of the original rule’s provisions remain unchanged, such as the definition of “competent person” and “working place.” A working place, MSHA has clarified, applies to all areas in a mine where miners or contractors work in the extraction or milling processes, including roadways and inside production facilities.
A “competent person” for purposes of this standard is one who has the abilities and experience that fully qualifies them to perform the duty, and to be able to recognize hazards and adverse conditions that are expected or known to occur in the work area, predictable to someone familiar with the mining industry. The competent person must also have task training in the task of workplace examination, but this is enforced through MSHA’s existing Part 46/48 training provisions. If a workplace examination is deemed inadequate, this may cause MSHA to question the effectiveness of the task training for the examiner, and can result in additional citations/orders.
The competent person must also have authority to initiate corrective action and to withdraw miners if an imminent danger is identified. A competent person may be deemed an agent based on the totality of his/her responsibilities at the mine, but the sole act of conducting a workplace examination does not make the miner an agent.”
BEFORE SHIFT STARTS
The examination must be done each shift before work begins, or as miners begin work in the area later in the shift. MSHA advises: “The examination should be conducted sufficiently close in time to the start of work so that an operator would reasonably expect conditions to not adversely change before work begins in the examined area.”
Miners can continue to work in an area where adverse conditions are identified as long as they are promptly notified so they can avoid the condition. The notification can be verbal, or warning signs can be used as long as they provide actual notification of the adverse condition (e.g., “Danger – Loose Wire” rather than “Danger”). The warning signage must be sufficiently precise to advise miners of what the condition is to avoid. If a condition will remain uncorrected across multiple shifts, then barricades with descriptive signage may be required.
Miners who plan to work in an area can travel to it along with the competent person who will conduct the examination, but the exam must be done before miners are exposed to hazards. If the competent person finds an adverse condition, the condition must be corrected OR miners must be notified before any exposure occurs. Once an area is examined, work can proceed while the competent person continues with the examination.
ABOUT THE AUTHOR
For more information on the new rule’s requirements, or development of best practices for effective workplace examinations, contact Adele Abrams, Law Office of Adele L. Abrams PC, at safetylawyer@gmail.com.
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Modern Contractor Solutions, October 2018
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