On January 23, and for the first time in nearly 40 years, the Mine Safety and Health Administration (“MSHA”) issued new rules governing the way in which metal/non-metal mine operators must conduct their regular workplace examinations. A Final Rule on “Examinations of Working Places in Metal and Nonmetal Mines” was published in the Federal Register on Monday, January 23, and will become effective on May 23, 2017.
Hours after the new President took office on January 20, however, his Chief of Staff ordered the withdrawal of all regulations finalized by the Obama administration but not yet published in the Federal Register. The directive seemed to include the workplace exam rule, which was scheduled to be published in the Federal Register the next business day, January 23. However, the instruction from the White House came after the decision deadline for the Federal Register’s January 23 issue, and the new MSHA rules were published as planned. For that reason, the Labor Department’s current position is that the workplace examination rules were not affected by the memorandum and that the May 23 effective date remains in place. However, a new Assistant Secretary for Mine Safety and Health has not yet been named, so it is possible that the incoming head of MSHA will take steps to amend the rules or even withdraw them entirely.
The new rules – really one rule, since the language is identical for surface and underground operations – will replace the current versions of 30 C.F.R. §§ 56/57.18002. The rule requires that a competent person designated by the mine operator examine each working place at the mine at least once per shift. Although the timing of the examinations is flexible, depending on what is necessary to ensure miners’ safety, they must be completed before miners begin work in the areas subject to the rule. For the first time, examiners must note on the examination record any adverse conditions they find that cannot be addressed immediately, and miners must be notified about those adverse conditions before they start work.
The rule also imposes new recordkeeping requirements on mine operators. Exam records must include the name of the examiner, the date the examination was carried out, the locations that were looked at and, as noted, any adverse conditions that were found. Operators must also record the date on which corrective action was taken – but not what action was taken, or who made the fix. As has always been the case, mine operators must keep examination records for one year, but now they must make them available (and provide copies) to both MSHA inspectors and representatives of miners upon request.
MSHA’s current position is that the workplace examination rules have not been affected by the new Administration’s freeze on regulatory action, since the freeze was instituted after the January 23 Federal Register publication date was locked in, and since the May 23 effective date is more than 60 days away. (Sixty days being the time the Administration ordered agencies to hold up new rules for review.) That said, it is possible that once appointed, the incoming Assistant Secretary for Mine Safety and Health will review the rule and he or she may direct a different approach than that taken by Obama appointee Joe Main.
As noted, the new rule will modify the rules now set out at 30 C.F.R. §§ 56.18002 and 57.18002. MSHA plans to develop outreach and compliance assistance materials for stakeholders, and says it will train inspectors and their supervisors on the new rules “to ensure consistency.” Starting in January 2022, MSHA plans to conduct a “retrospective study” to determine the effectiveness of the new rule and specifically, to what extent operators found and addressed adverse conditions and violations before they caused accidents.
Under the new rule, the examination must be completed “at least” once per shift, before miners start work, whereas under the old rule, the examination could be carried out at any time during the shift. The exact time within which that has to happen isn’t set out in the rule, however; operators have flexibility to decide for themselves how much time to allow between the examination and work beginning, so long as they reasonably expect conditions will not deteriorate between the examination and the time work starts. The examination can take place before or after the shift begins, so long as it is completed before miners begin work in the area. Mines with consecutive shifts or 24-hour operations may conduct their exams for the oncoming shift before the end of the previous one. In fact, if shifts overlap in a particular work area, operators do not need to conduct an exam for the oncoming miners if conditions would not have been expected to change for the worse since the previous examination.
One brand-new requirement is that operators must notify miners of adverse conditions in their working places before work begins, although not if the adverse conditions have been corrected by the time the work starts. The notification can take any form that effectively notifies miners, which could mean orally telling miners about the adverse conditions, posting signs or some other way. The notification must be “prompt” – that is, before miners could potentially be exposed. (MSHA has made no substantive change to the imminent danger provision of the rule, which requires that if the examiner finds an imminent danger, he or she must bring the condition to the operator’s attention and all miners must be withdrawn from the affected area until the hazard is addressed.) Additionally, operators only need to notify the miners who would be affected by the adverse condition, not everyone working at the mine. (MSHA is not going to give operators any guidance as to what it means by “adverse,” stating, in essence, that based on their experience operators should know what “adverse” means. MSHA also assures operators that it will not use exam records to write citations “solely” based on adverse conditions identified, although frankly operators should be concerned that that leaves the door open for inspectors to use examination records as treasure maps that lead to citeable conditions.)
On a conference call for stakeholders announcing the new rule, MSHA stated that what it considers a “working place” will not change. (Nor will the current definition of “competent person,” which MSHA expressly declined to clarify.) According to the agency, “working places” are places where miners work in extraction or milling processes, but of course that begs the question of what MSHA defines as “extraction or milling processes.” The preamble to the rule states that roads to and from a work area need to be examined, but that roads not “directly involved in the mining process” do not. Where the line between the two falls for enforcement purposes remains to be seen. MSHA is telling operators that its idea of what is a working place does not include administrative buildings, parking lots, lunchrooms, toilet facilities, or inactive storage facilities. (Although as one mine safety professional has noted, even though those areas will not need to be examined as workplaces, MSHA may still write citations there for other perceived violations, which emphasizes the true disconnect between potential hazards and regulatory violations.) Operators only have to examine isolated, abandoned or idle areas when miners have to work there during the shift, and if miners are not scheduled to work in a particular area, it does not need to be examined.
Four pieces of information must be included on every examination record: the name (but not the signature) of the examiner; the date of the exam; the location of all areas that were examined; and a description of any adverse conditions encountered. Although there are no specific expectations of what level of detail is necessary, MSHA does expect it to “provide sufficient information which allows mine operators to notify miners of the condition and to take prompt corrective action.” Even if the adverse condition is not corrected before the next examination, it’s not necessary to re-record that information on every shift; operators have to notify the affected miners on each shift, but can just make a note of the corrective action once, when it happens. (Which raises the question, still unanswered, of what further recordkeeping is necessary if the examiner does record the same condition on subsequent examinations.)
The examination records do not have to include the name of the person who actually took care of correcting the adverse condition or what corrective action was taken, and the person who records the date of the corrective action does not have to be the same person who made the fix. Because the record of the exam and the corrective action must be kept in a single document, operators can’t use an alternative means of recording corrective actions, such as closed-out work orders or invoices. The record itself can be made at any time before end of shift, and operators can record examination results in any format, electronically or in hard copy – although (adopting language that has been part of the underground coal rules for years) if the records are electronic, they must be secured in a computer system that isn’t susceptible to alteration, a requirement that, frankly, implicitly raises unfair assumptions about the integrity of metal/non-metal operators.
Under the current rule, examination records must be made available to MSHA inspectors for inspection (but not to representatives of miners) on request. Under the new rule, not only must the company provide copies of the records to MSHA, they must also be given to miners’ reps. As has always been the case, operators have to keep examination records for one year, but now MSHA seems to be distancing itself from the previous (unofficial) policy that records could be discarded after MSHA inspectors had a chance to look at them.
What’s the benefit?
It is far from clear what benefits, if any, will flow from the new rule, if it takes effect as MSHA currently intends. MSHA estimates that the new rule will cost metal/non-metal operators $34.5 million annually, $10.6 million of which will affect mines with one to 19 employees. Although the agency claims that the rule “will not be an economically significant regulatory action,” at least one industry association has calculated that MSHA’s estimates are too low and that smaller operators in particular will feel a greater impact. MSHA admits that it cannot actually quantify the economic benefit of the proposed rule, but it assures the industry that “it anticipated there would be unquantified benefits” – saying, in essence, “just trust us.” Perhaps even more troublesome is the agency’s confession that it “is unable to separate the benefits of the new requirements under the final rules from those benefits attributable to conducting a workplace examination under the existing standards.” Fatalities and violations reached near-record lows in 2016, and mining as an occupation is safer than ever before. If even MSHA doesn’t believe the rule will save more lives or prevent more injuries than the existing rule, and if the cost to operators is substantial, it is not clear why, exactly, operators should now (in the very last hours of the outgoing Administration) be forced to change or abandon their time-tested and apparently successful examination programs. We may not know the answer to that question until after the 2022 retrospective study. Then again, we may never know.