MSHA Workplace Examination “Clarification” Places Enforcement Target Squarely on Operators
Author: William K. Doran (Washington DC)
Published Date: July 29, 2015
Over the years, the Mine Safety Health Administration (MSHA) has tried on two different occasions to overhaul the workplace examination standard at 30 CFR §56/57.18002 by issuing program policy letters. The agency’s primary goal in each of those efforts was to expand the recordkeeping requirement in the regulation to require operators to record conditions identified in the examination. In each case, following industry challenges, the agency was forced to withdraw its new policy and concede that the regulation does not contain such a requirement. These concessions were ultimately based on the recognition that such substantive changes to the regulatory requirements of the standard would necessitate notice and comment rulemaking that afforded stakeholders appropriate input.
Notwithstanding this history, MSHA has now released its latest program policy letter (PPL) installment in this long running effort to expand operators’ workplace examination obligations. Described as an effort by the agency to “clarify” these requirements and promote “best practices,” the PPL establishes a clear road map for expanded enforcement to force operator acceptance of agency positions regarding who is “competent” to perform examinations, when they should be performed, and how they should be recorded. This new PPL, which will now be presented by inspectors to every mine, will support an anticipated wave of citations and orders alleging “inadequate workplace examinations” and “inadequate training of workplace examiners.”
Although Metal/Nonmetal Administrator Neil Merrifield described the new PPL at a July 22, 2015 stakeholder meeting as “nothing new,” he nonetheless made the point of warning that inspector presentations of the new policy would provide “fair notice” of agency enforcement intentions. Given this warning, operators should be prepared for a heightened agency focus on workplace examination efforts and procedures.
Long-standing Working Place Exam Interpretation Under Threat
The language of the mandatory standard entitled “Examination of Working Places” has not changed since it was promulgated. It sets out the following requirements:
(a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.
(b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.
(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination 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.
Paragraph (a) employs the term “competent person” to describe who should make examinations. That term is defined in 30 CFR §56/57.2 as “a person having abilities and experience that fully qualify him to perform the duty to which he is assigned.”
With these clear guidelines, the regulation has been consistently interpreted as requiring an operator to designate an experienced person, hourly or supervisory, to conduct an examination of every working place on each shift and preparing and maintaining a record that such examination was performed. To meet this requirement, such records must identify the shift, the working place, and the person who performed the exam.
Although this interpretation has been contained in agency policy for decades, MSHA enforcement personnel have never been satisfied with its concise parameters. Operators on the ground have seen this dissatisfaction over the years in the efforts of inspectors to discourage hourly employees from acting as workplace examiners, expand the scope of particular working areas, and require recording of identified conditions. The new PPL will bolster inspectors’ efforts in this regard.
Agency Introduction of “Best Practices” to Justify Tougher Scrutiny
The new PPL recommends that particular best practices should guide operators in their compliance with the workplace examination requirement. Specifically, the PPL offers the following recommendations:
A best practice is for a foreman or other supervisor to conduct the examination; an experienced non-supervisory miner also may be “competent.”
“Working place” includes areas where work is performed on an infrequent basis, such as areas accessed primarily during periods of maintenance or clean-up.
It is a best practice also to include a description of [identified] conditions in the examination record to facilitate correction and to alert others at the mine of conditions that may recur or in other ways affect them.
During the stakeholder meeting, MSHA leadership acknowledged several times that these practices were not regulatory requirements. Nonetheless, the implication was clear that evaluation of operator workplace examination procedures would be scrutinized against the backdrop of these agency preferred criteria.
Consequently, operators should be prepared for a variety of potential enforcement circumstances arising from this new guidance. These circumstances, many of which have already been occurring at mines around the country for several years, include:
Citations alleging inadequate workplace exams when violations deemed “obvious” by an inspector are observed;
Citations alleging inadequate workplace exams when multiple violations are identified by an inspector;
Citations alleging inadequate workplace examinations following detailed inspector evaluation of the access, and possibility of access, of personnel to particular working areas and the determination that insufficient area was included in the breadth and scope of the examination;
Allegations of higher negligence when alleged inadequate workplace exams are performed by hourly personnel;
Allegations of unwarrantable failure when alleged inadequate workplace exams are performed by supervisors who miss perceived “obvious” conditions;
Citations alleging inadequate corrective action when there is no record on the exam form of the conditions that were identified; and
Withdrawal orders alleging inadequate training of workplace examiners.
With respect to training, the PPL notifies the industry that the identification of an inadequate workplace examination could not only be the basis for a finding of inadequate task training of the examiner but also the basis for the agency to require operators to revise their Part 46 or Part 48 training plans.
Operators Should Take Steps to Prepare for Closer Workplace Exam Scrutiny
Notwithstanding MSHA’s pronouncement that this is simply business as usual, mine management should carefully read the new PPL, pay close attention to the agency roll out presentations for cues as to upcoming local inspector focus, and closely review workplace examination procedures. Specific attention should be directed at the following steps:
Evaluate and confirm the experience and training of personnel that are designated to conduct workplace examinations.
Reinforce with maintenance personnel the enforcement expectation that even short duration maintenance work in isolated, infrequently visited locations must be accompanied by a workplace examination during the shift on which the work is performed.
Ensure that conditions identified in workplace exams are corrected promptly. Agency second-guessing of the effectiveness of workplace exams is difficult when conditions and hazards have been resolved.
It should be cautioned that if an operator decides to adopt MSHA’s suggested “best practice” regarding the recording of identified conditions on workplace exam forms, it should also include a section that identifies the corrective action taken to resolve the condition. MSHA has historically used these types of records as a road map to criticize and challenge the speed and effectiveness of operator response to identified hazards. Consequently, these documents often end up forming the basis for allegations of unwarrantable failure and knowing violations on the part of managers and supervisors.
Future enforcement will reveal the extent of MSHA intentions with respect to this new policy. While operators can file contests with the Federal Mine Safety and Health Review Commission regarding enforcement actions that are incompatible with regulations, these careful revisions in policy language, combined with the agency’s insistence that there is “no change,” limits the opportunity to characterize the PPL as substantive rulemaking lacking proper procedures. Nonetheless, operators should not be distracted by the agency’s statements. MSHA has put the industry on notice of a significant new enforcement effort with respect to workplace examinations. Everyone should be prepared.
Bill Doran’s practice is concentrated in safety and health law and litigation. Bill represents and advises companies with respect to issues arising under Federal and State Safety and Health Statutes. He represents companies in accident investigations, special investigations, audits and discrimination investigations conducted by OSHA, MSHA, and state agencies. He also represents companies in litigation before the Occupational Safety and Health Review Commission, the Federal Mine Safety and...