By Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced its Final Rule on Examinations of Working Places in Metal and Nonmetal Mines. 83 Fed. Reg. 15055 (April 9, 2018).

The Final Rule, which will be effective on June 2, 2018, requires that:

  • Each working place be examined at least once each shift for conditions that may adversely affect safety or health of miners before work begins or as miners begin work in that place;
  • Mine operators promptly notify miners in affected areas of any conditions that may adversely affect their safety or health and promptly initiate appropriate corrective action. Notification is only necessary when adverse conditions are not promptly corrected before miners are exposed;
  • A record of the examination be made before the end of each shift, including the name of the person conducting the examination; the date of the examination; location of all areas examined; a description of each condition found that may adversely affect the safety or health of miners that is not promptly corrected, and the date of the corrective action (when that occurs); and
  • The record be made available to MSHA and miners’ representatives upon request.

The new rule imposes new requirements on mine operators, but is notably less burdensome that previous iterations of the workplace examination rule that has been in process for several years. For example, a previous proposed version of the rule would have required operators to examine workplaces before work began, whereas now the rule adds on “or as miners begin work in that place.” Also importantly, a previous version of the rule would have required operators to notify miners of all identified conditions, even if those conditions had been corrected before work began. Now, under the final rule, notification will only be required with respect to conditions that are not corrected. On a related note, operators need only make a record of conditions that are not promptly corrected.

Although the new rule is less burdensome on the regulated community than previous versions of the rule would have been, operators need to be mindful of potential pitfalls. The new rule appears to leave open the opportunity for MSHA to use operator examination records as “evidence” of a violation, or to support higher negligence findings. And of course the new requirements will provide MSHA with more bases to issue citations, since it will be a violation to not complete the various requirements under the new rule, including documentation of the date corrective action is completed for issues not promptly corrected.

MSHA is holding stakeholder meetings at six locations across the country to provide “outreach and compliance assistance materials on the Final Rule.” In addition, that Agency plans stakeholder meetings in Seattle, Washington, and at MSHA’s district offices by way of video teleconferencing at a later date.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Workplace Safety and Health (OSHA/MSHA) Team.