September 20, 2020

Volume X, Number 264

September 18, 2020

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MSHA Issues New Program Policy Letter on Workplace Exams

On July 22, 2015, MSHA issued a new Program Policy Letter (PPL) regarding workplace examinations at metal and nonmetal mines. The PPL contains important guidance on the interpretation of provisions within 56/57 CFR Part 18002. Generally, this standard requires that a “competent person” examine each “working place” at least once a shift, note unsafe conditions, correct such conditions, and create a record documenting that the inspection was performed.  In this new guidance, MSHA appears to be expanding the scope of this standard and openly drawing direct connections between training/experience and the adequacy of workplace examinations.

It is well-settled that a “competent person” under the standard may include an experienced non-supervisory miner (as well as a foreman or supervisor). In the PPL, however, MSHA states its clear preference: “A best practice is for a foreman or other supervisor to conduct the examination. . . . [G]enerally operators should not assign inexperienced miners the task of conducting the workplace examination.”  The PPL further states that if a competent person fails to identify safety hazards, MSHA may also choose to treat such failures as evidence of inadequate task training under Parts 46 and 48.  Such violations would likely require training plan revisions.

The PPL also sheds light on (and expands) the proper definition of a “working place.” In addition to areas where miners work in the extracting or milling processes, MSHA states its intention to also apply this definition to “areas where work is performed on an infrequent basis, such as areas accessed primarily during periods of maintenance or clean-up.”

Finally, through this PPL, MSHA provides guidance regarding the scope of the record it expects as a result of this process. “The purpose of workplace examinations is to identify and correct conditions which may adversely affect safety or health. For this reason, it is a best practice also to include a description of such 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.”

Here is our take. The requirement for a workplace examination at least once a shift for areas where work is performed on an infrequent basis seems highly problematic, and may constitute an improper expansion of the standard. Further, it appears likely that MSHA will be looking for significantly more detail in workplace examination records than is currently standard practice at most mines.

Copyright Holland & Hart LLP 1995-2020.National Law Review, Volume V, Number 204

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