Workplace Safety and Health News Alert

The Final Rule, which seeks to significantly alter the existing Workplace Examination standard, was published on January 23, 2017. As has been well documented, it made the following changes to 30 C.F.R. §§ 56/57.18002: 

• Requires examinations of each working place before miners begin work in that place;
• Requires mine operators to notify miners of adverse working conditions in their working places;
• Requires the examination record to include: the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect safety or health and, when necessary, be supplemented to include the date of corrective actions taken for adverse conditions; and
• Requires operators to make examination records available to miners’ representatives, in addition to authorized representatives of the Secretary.

The Final Rule is currently scheduled to take effect June 2, 2018. It is the subject of a legal challenge in the United States Court of Appeals for the Eleventh Circuit.

On September 12, 2017, MSHA proposed to amend the Final Rule to address: 

• When working place examinations must begin; and
• The adverse conditions and related corrective actions that must be included in the examination record. 

With respect to the timing of examinations, MSHA proposed to amend the Final Rule such that a working place must be examined before work begins or as miners begin work. MSHA states that this proposed change “would allow miners to enter a working place at the same time that the competent person conducts the examination.”

With respect to records, MSHA is proposing to amend the recordkeeping requirement so that adverse conditions that are promptly corrected need not be recorded. Similarly, a record of corrective action would only be required for conditions that are not promptly corrected. For purposes of this provision, MSHA interprets “promptly” to mean “before miners are potentially exposed to adverse conditions.”

Further information on the Proposed Amendments and how to submit comments can be found on the Federal Register page at: https://www.federalregister.gov/documents/2017/09/12/2017-19381/examinations-of-working-places-in-metal-and-nonmetal-mines.

Mine operators are encouraged to submit comments and make their voices heard. In submitting comments, operators should consider whether the Final Rule with Proposed Amendments provides a workable Workplace Examination standard for their operations, or whether it presents unnecessary challenges. If the Final Rule with Proposed Amendments is problematic, operators should be specific in explaining why. Operators should consider whether the Final Rule with Proposed Amendments poses burdens, costs, changes to operations, and safety practices, etc. Operators should also consider whether any portions of the Final Rule with Proposed Amendments are vague or unclear.

Jackson Kelly will continue to monitor developments related to the Workplace Examination rule and provide updates as they unfold.
 

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

Responsible Attorney
Karen L. Johnston
303.390.0008
kjohnston@jacksonkelly.com

The Jackson Kelly PLLC Occupational Safety & Health News-Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety & Health News-Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

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