This morning, MSHA posted advance copies of two rules, which it will formally publish tomorrow, to briefly delay and modestly amend its pending 2017 Workplace Examination Rule as expected since early August. The proposed changes appear to address two of the many concerns raised by industry regarding the 2017 rule.
MSHA’s first proposal would delay the effective date of the new rule until March 2, 2018. After prior extensions, the rule had been set to take effect on October 2nd. MSHA says that the delay is intended to allow time to provide the mining community with “training and compliance assistance.” This includes holding “informational meetings around the country,” developing and distributing “compliance assistance material prior to enforcing the rule,” “conducting compliance assistance visits at metal and nonmetal mines throughout the country,” and training inspectors “to help assure consistency in MSHA enforcement.”
The second proposed rule would make “limited changes” to the substance of the workplace examination rule. Specifically, MSHA will change two of the new rule’s requirements:
- First, exams must be “at least once each shift,” either “before work begins or as miners begin work in that place.”
This means that miners could “enter a working place at the same time that the competent person conducts the examination.” The exam would have to be conducted “in a time frame sufficient to assure any adverse conditions would be identified before miners are exposed.” The 2017 rule originally required all examinations to occur before work began, raising major concerns about delays and staffing to examine all or part of a mine completely before anyone could start work.
MSHA says that conditions that can be corrected right away should be fixed. Otherwise, the competent person should “promptly notify miners of those that cannot be corrected before miners are exposed.” Mines that run continuous 24-7 shifts, could still conduct the exam at the end of the prior shift, as long as it’s “at a time sufficiently close to the start of the next shift to minimize potential exposure to conditions that may adversely affect miners’ safety or health.”
- Second, mine operators would not have to record conditions that are corrected “promptly.”
“Promptly” means “before miners are potentially exposed to adverse conditions.” The 2017 rule originally required recording every condition discovered (along with follow-up records that conditions were fixed), raising concerns about extensive record-keeping and notifications of others even for minor issues that were already repaired. In this latest proposal, MSHA seems to recognize that this is impractical. It even argues that making an exception to record-keeping for promptly corrected conditions provides an incentive to mine operators to correct conditions promptly, “which may improve miner safety and health.”
Interestingly, MSHA also seems to leave open the possibility that it would use this extension time to consider additional substantive changes to the rule, even beyond the changes it proposes this week. MSHA says that the additional time “would permit more time for MSHA to address issues raised by stakeholders during quarterly training calls and stakeholder meetings and compliance assistance visits.” While noting that in its second proposal today, it “is seeking comment on a proposed rule that may address some of these issues,” with the additional extension, “MSHA is considering concerns raised by stakeholders on certain provisions in the rule and how best to address them. MSHA intends to collaborate with and seek input from stakeholders regarding these issues.”
New opportunity for public input and comments
The public and mining community will have several opportunities to provide input on the two proposals. The proposal to delay the rule is open for written public comment until September 26, 2017. The public will have more time to comment on the substantive rule changes. Written comments on that proposal are due by November 13, 2017. In addition, MSHA will hold four public hearings on the proposals:
- October 24th in Arlington, VA
- October 26th in Salt Lake City, UT
- October 31st in Birmingham, AL
- November 2nd in Pittsburgh, PA
What didn’t change?
A number of mining companies joined together to comment on the original final rule through the Mining Coalition. While the new proposed changes address a couple of concerns raised by industry, companies concerned about the remainder of the rule may wish to join in a new round of comments (and can contact us to participate in the Mining Coalition’s efforts).
Among the issues not addressed in MSHA’s latest proposal, there are still concerns about burdensome requirements to record details of every uncorrected condition and then follow up later to record corrections made. Key terms appear to remain vague, leaving uncertainty about how to comply and significant discretion to individual inspectors to interpret them. In addition, MSHA seems not to have changed its fundamental cost-benefit analysis of abandoning the longstanding workplace exams rule, including its admission in the 2017 rule that it simply “is unable to quantify the benefits” of the new rule.
What do I do?
Many mine operators have delayed implementing new systems and procedures because they hoped that the new administration would pull back the rule. Today’s announcements still leave some uncertainty about whether more changes may be coming. But, mine operators that want to prepare for the new rule as it now stands would do well to work with their counsel to develop compliance plans to meet the new requirements, particularly in light of some uncertainty in interpretation. In many cases, this will require new systems, procedures and even staffing for:
- Completing and handling additional paperwork.
- Checking records to be sure that proper follow-up occurs in documenting corrective actions.
- Retraining all miners on the new protocols.
- Auditing crews to ensure that they perform all required examinations of the right places at the right times (before or as work begins, and before exposure of miners to adverse conditions) and with notice to miners of adverse conditions found that are not promptly corrected.
For questions or more information on how this could impact your business, please contact Avi Meyerstein, Brian Hendrix or a member of Husch Blackwell’s Safety & Health team.
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