15 months after it first published a rule dramatically changing how workplace examinations will be done on every shift at every metal/non-metal mine, MSHA today published a final amended version of that rule. Despite a litigation challenge and widespread concerns raised by stakeholders, the final rule maintains many of the same provisions as originally introduced. The new rule takes effect June 2, 2018.
MSHA’s changes to the workplace exam rule so barely squeaked out the door of the last administration that they were not officially published in the Federal Register until several days into the new administration on January 23, 2017. Many in industry argued that this violated executive orders requiring agencies not to publish holdover rules.
However, the latest – and apparently, final – version published today appears to retain the bulk of the changes imposed by the holdover January 2017 rulemaking. After significant stakeholder outcry, MSHA had delayed implementing the rule at least three times, giving some hope that the agency would thoroughly re-evaluate. Among concerns raised were safety (diverting safety resources to record-keeping duties), feasibility (ability to examine vast mines at the beginning of each shift), compliance (uncertainty about when an exam was timely, when notification was required, and more), and cost (with MSHA saying it could not even quantify the benefits of the rule).
Last September, MSHA did propose two minor changes to its approach. Originally, the new rule required exams to occur “before work begins” in an area; the revised proposal retained this language but added that miners can “enter a working place at the same time that the competent person conducts the examination,” e.g., the exam could occur “as miners begin work.” In addition, the new rule seemed to require documenting adverse conditions found during an exam and the corrective action taken, even if the conditions had been corrected immediately. The September revisions allowed “promptly” correcting conditions without documenting them.
In its latest final rule today, MSHA concedes that “majority of commenters expressed their support for retaining the standards in effect.” But, it says that it did not consider issues that were outside of these narrow proposed amendments from September. In other words, more fundamental concerns about the rule may not have been re-considered.
Questions about how to comply remain
Questions remain about how the latest changes will be enforced and what it takes to comply.
For how long into a shift are miners considered “beginning work?” By what point into the shift must the exams be done? MSHA suggests that this flexibility ends at the point where a miner is potentially exposed to adverse conditions: “[T]he examination should be conducted within a time frame sufficient to assure any adverse conditions would be identified before miners are potentially exposed.” Does this mean that any time a miner is actually exposed to a condition before the exam was completed, the exam was necessarily too late?
For mines running 24-7, 365-day consecutive shifts, MSHA “will continue to permit mine operators to conduct an examination on the previous shift,” so long as the exam occurs “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.” When exactly is that? Does this mean that if an inspector finds an adverse condition, the exam must have been too long ago?
These are just a few of the issues now topping the pile of compliance questions from changes in the January 2017 rule. It likewise raises most of the compliance concerns articulated since the rulemaking first began.
MSHA suggested in prior notices that it would conduct widespread training and compliance assistance to ensure that inspectors and mine operators alike understood how the rule would work. The latest web site notice lists six meetings in the month of May. The meetings run up until just two days before the rule takes effect:
May 1: DoubleTree by Hilton, 10 Brickyard Drive, Bloomington, IL 61701 (309-664-6446)
May 15: Sheraton Birmingham, 2101 Richard Arrington Jr. Blvd. North, Birmingham, AL 35203 (205-324-5000)
May 17: Hilton Garden Inn Pittsburgh Downtown, 250 Forbes Ave., Pittsburgh, PA 15222 (412-281-5557)
May 22: Renaissance Reno Downtown, One South Lake St., Reno, NV 89501 (775-682-3900)
May 24: DoubleTree by Hilton, 2015 Market Center Blvd., Dallas, TX 75207 (214-741-7481)
May 31: Hilton Garden Inn Denver Tech Center, 7675 East Union Ave., Denver, CO 80237 (303-770-4200)
So, what does it require?
In summary, this newest version of the new workplace exam rule still requires a number of significant changes that many mine operators believe will create major challenges, including for safety. Major provisions include:
- Beginning of shift. Exams must be conducted at the beginning of the shift or “as miners begin work.”
- Notification of miners. Operators must “promptly” notify miners in “affected areas” of adverse conditions found and “promptly” correct.
- Records before shift ends. Records of exams must be made before the end of the shift.
- Detailed records of conditions. Records must be detailed and include – for any adverse conditions found that were not promptly corrected – descriptions of the conditions and be supplemented to state the date when corrective action was taken.
- Record production and storage. Records must be made available not only to MSHA upon request, but also to miners, and kept for one year.
The new rule reads as follows:
(a) A competent person designated by the operator shall examine each working place at least once each shift before work begins or as miners begin work in that place, for conditions that may adversely affect safety or health.
(1) The operator shall promptly notify miners in any affected areas of any conditions found that may adversely affect safety or health and promptly initiate appropriate action to correct such conditions.
(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.
(b) A record of each examination shall be made before the end of the shift for which the examination was conducted. The record shall contain the name of the Start Printed Page 15065person conducting the examination; date of the examination; location of all areas examined; and description of each condition found that may adversely affect the safety or health of miners and is not corrected promptly.
(c) When a condition that may adversely affect safety or health is not corrected promptly, the examination record shall include, or be supplemented to include, the date of the corrective action.
(d) The operator shall maintain the examination records for at least one year, make the records available for inspection by authorized representatives of the Secretary and the representatives of miners, and provide these representatives a copy on request.
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. Anyone that waited should now get busy. As we’ve suggested before, mine operators 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.
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