By Willa B. Perlmutter
In my last column, I talked about MSHA’s plan to issue a new rule requiring surface mine operators to develop and implement written programs that would improve mobile equipment safety. The comment period closed in February and, at this writing, about a month later, MSHA hasn’t yet tipped its hand as to what, if anything, it plans to do next, and it’s not clear when, if at all, MSHA will take its next action regarding the rule.
Since we don’t know what’s going to happen with the mobile equipment rule yet, I’d like to talk for a few minutes about an older rule. As you might remember, after some legal wrangling, revisions went into effect back in 2019 to the previous, long-standing metal/nonmetal workplace examination rules found at 30 C.F.R. § 56/57.18002. (The new rule was the subject of litigation, a result of the 2017 presidential administration transition.) Once the new rule was definitively established, gone were the simpler days when an operator just had to arrange for a workplace exam once per shift, record that the examination had been done, and hold on to that record for one year or until MSHA asked to review it.
Under the new regime, a competent person now has to examine each working place at least once per shift, and that exam has to take place before miners start to work in the area. Not only does the operator have to make a record of the exam, but that record now has to include the name of the person who did the examination, the locations that were looked at, and a description of each condition found that might adversely affect health or safety. Once the adverse condition is corrected, the record has to be updated to show the date of correction. The records still have to be kept for one year, but now the operator has to make them available to MSHA, but also to miners’ reps who ask for copies.
Those don’t really look like big changes from the previous rule, but they are. And for operators, they can be both a sword and a shield when their impact on enforcement is considered. We know for a fact that MSHA inspectors routinely check workplace examination records, usually before they start the walkaround portion of their inspections. Looking at the records not only helps them plan the route the inspection will take and what the inspector will focus on, the records also help them know where they should be looking to find areas and conditions they might be able to write up later, once they’re out in the field.
Here’s why that’s particularly bad news for management. First, each workplace exam record has to include the name of the person who carried out the exam. In other words, MSHA knows who you are, examiners. They have your name. And remember that when deciding how much negligence went into a violation, MSHA looks at what the operator knew and when they knew it. That means that in the world of the Mine Act, where workplace examiners are considered agents of the operator and individual agents can be held personally responsible for knowing violations of mine safety regulations under § 110(c), failing to conduct a thorough exam, or failing to correct adverse conditions recorded on that piece of paper, could give MSHA written evidence to support its case if the agency decides to pursue individual penalties against the examiner in addition to penalties against the company.
The workplace exam record also has to describe each condition that might adversely affect miner health and safety. So, not only is the examiner telling MSHA who he or she is, they’re also saying “Hey, MSHA, look at this!” The workplace exam record in effect draws a big red arrow that points an inspector to exactly what he or she should be looking at when he conducts the inspection. And that, in turn, gives the inspector a road map for where they can expect to find violations to write up as citations. (Now, before you jump all over me … I know conditions that might adversely affect health and safety are not necessarily the same thing as violations, but they are often related, and there is certainly some overlap. Adverse conditions written down in examination records give an inspector a good idea where he might can look if he plans to write some paper.)
So, as I said, workplace exams can be both a sword and a shield. And I’ve pointed out that exam records will tell MSHA exactly not only where adverse conditions are to be found, but also who found them, which gives the agency a pretty big sword with which to come after the examiners. But workplace exams can be a shield, too. They are a legal requirement, sure, but they also give an operator the opportunity to get out ahead of the inspectors, at least once in every shift and in every working place.
Carrying out a conscientious, detailed exam requires the examiner to actually see things and note them for attention. Just writing them down isn’t enough, of course; the operator also has to fix what gets found. The rule requires appropriate, prompt action to address hazards in the workplace. By fixing an adverse condition, the operator deprives the inspector of a chance to write it up. Moreover, if the inspector sees conditions noted and then fixed, it says a lot about the operator’s safety culture. It tells your people about your safety culture, too. And of course, the most important thing of all: if your examiners are finding problems and fixing them, it enhances the overall safety of the people at your operation – and that’s good news for everyone.
Willa Perlmutter
Willa Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group. She can be reached at [email protected].