By: Nicholas W. Scala

On August 4, 2016 in Birmingham, Alabama, MSHA held its last of four open hearings on the Proposed Rule for Examinations of Working Places in Metal and Nonmetal Mines to receive feedback from the mining industry and expand upon the nuances of the proposed modifications.

During the hearing, industry concerns surrounding the proposed rule were echoed, including the additional workplace exam requirements the proposed rule seeks to enforce: the performance of workplace exams prior to the start of shift; the notification of all miners working in an area by the competent person of all hazards noted during the exam; the prompt initiation of corrective action; and signing and dating of the record by the competent person before the end of each shift.

Industry representatives commented on the level of detail related to the hazards found and the corrective action taken, mandated under the new rule. MSHA fired back that the need to address hazards leading to a rising level of fatalities in the Metal/Nonmetal sector drove them to propose a new rule. However, MSHA has previously acknowledged 2015 as the safest year in the history of the administration.

Despite the proposal, certain aspects of the rule would not change, including the definitions of a “working area,” and “competent person.” Yet, MSHA stated during the Birmingham meeting that a best practice recommendation, previously outlined in past Program Policy Letters, is to designate a foreman or supervisor as examiners the competent person completing workplace exams. Certain operators testified the rule would place too much emphasis on a written record and could ignore hazards that operators could correct in real-time during shifts.

Other comments pointed to the MSHA further exposing a “competent person,” designated to perform the workplace exam, to prosecution under Section 110(c) of the Mine Act and subjecting them to personal fines and potential criminal prosecution. Other consequences of looming 110(c) investigations were top-of-mind such as whether the investigation may motivate workplace examiners to report all potential (but not present) hazards on the exam – a practice in futility.

Mine operators present at the Birmingham hearing urged MSHA to clarify what level and type of communication would satisfy the proposed rule’s requirement of notifying miners of discovered hazards. For example, individuals asked whether the operator should individually notify miners in writing or verbally, or if he/she can post hazards in in a central location.

Mine operators also testified that performing workplace exams prior to shifts would often force them to do so in the dark, creating hazard to the examiner and not producing thorough exams.

Industry representatives questioned the retention of workplace exam records. MSHA fielded questions about whether mine operators would to receive citations for issues noted on previous workplace exams. MSHA Southeast District Manager Samuel Pierce stated that if a mine operator corrected or mitigated a hazard on a previous workplace exam, he/she would not receive enforcement action for former condition.

Due to the voluminous comments received from stakeholders up to this point, MSHA has extended the deadline to submit on the rule proposed rule for an additional 17 days until September 23, 2016. (CORRECTION – DEADLINE EXTENDED UNTIL SEPTEMBER 30, 2016)

Operators and other stakeholders interested in submitting comments can contact Nick Scala, nscala@connmaciel.com, from the MSHA Practice Group at Conn Maciel Carey PLLC for further information and assistance.