An Apparent Change In MSHA Enforcement Policy Could Have Relatively Far-Reaching Consequences.
By Mark Savit
Once again, we find ourselves in the midst of an apparent change in MSHA enforcement policy that could have relatively far-reaching consequences even though the policies are simply “announced” or the citations that prompt them do not have significant penalties.
Several of those ongoing issues (i.e. escapeways in separate drifts from “every workplace” rather than from the “lowest levels” of the mine and refuge chambers) are already being widely discussed and also apply only to underground mines, but one issue, grounding and continuity testing, appears to be morphing before our eyes and has yet to have much discussion beyond one district.
At this point, everyone has to be familiar with the regulation (§ 56/57.12028). It is remarkably simple, stating only that:
Continuity and resistance of grounding systems shall be tested immediately after installation, repair, and modification; and annually thereafter. A record of the resistance measured during the most recent tests shall be made available on a request by the Secretary or his duly authorized representative.
It sounds fairly easy to deal with when you read it, but as you look around, you realize that there are thousands upon thousands of items that potentially need to be tested. It took me only a minute or two to find more than 200 items potentially subject to continuity and resistance testing just in the one section of our office where our group is located. Given the pervasive use of electrically powered equipment on a mine site, the number gets into the thousands very quickly.
Okay, so maybe it turns out that we really don’t have to test things like extension cords because they’re not grounding “systems” as referred to by the regulation. Unfortunately, the U. S. Circuit Court of Appeals for the District of Columbia Circuit answered that question in the negative and confirmed that extension or power cords are “grounding systems” within the meaning of the regulation. In doing so, however, it appears that they may have implicitly found that two-prong plug extension cords are not. [832 F3rd 317 at 323 (D.C.Cir. 2016)]
Surprisingly, there appears to be some relief in the Program Policy Manual. It says that “conductors in fixed installations, such as rigid conduit, armored cable raceways, cable trays, etc. that are not subjected to vibration, flexing or corrosive environments may be examined annually by visual observation to check for damage in lieu of the annual resistance test.” It also exempts circuits protected by certain GFIs as well as double insulated circuits and those with fail safe ground wire monitors.
Sounds like these exemptions cover quite a number of circuits, reducing the testing burden down to a more manageable number. But, like everything else, the devil is in the details. The PPM makes it clear that, if you do visual examinations in lieu of testing, you must record those examinations along with your actual resistance testing records.
In this case, it’s the meaning of the phrase “not subjected to vibration, flexing or corrosive environments” that is causing confusion. The reason for that is that MSHA has never defined what it means by “vibration” or “corrosive atmosphere.” The current prevailing philosophy is that only circuits inside of buildings fall into the “visual inspection” category – but that greatly diminishes the scope of the language MSHA uses in the PPM.
If you think about it, everything vibrates at some level. (Remember Brownian motion from high school?) Once you understand that, then the issue is the degree of vibration, rather than the presence or absence of it. Further, MSHA simply asserts that certain pieces of equipment are subject to vibration rather than actually measuring any. If ever MSHA actually measures vibration, then and only then can MSHA begin to describe, or even better, quantify the amount of vibration that actually requires a test.
The same is true of the “corrosive environment” exception. Like vibration, everything in the environment, whether indoors or out is subject to some degree of corrosion or deterioration. So the question is not one of whether a component is subjected to a corrosive environment but rather, the degree to which it is. MSHA simply takes the position that any equipment located outside is subjected to a corrosive environment. Corrosion is a very specific chemical term.
There are numerous reactions that appear to compromise the conductivity of a given metallic component but which, in fact, actually coat the component with scale which actually protects the metallic component from compromise through oxidation or corrosion. Once again, MSHA has yet to describe what it means by “corrosive environment” and, once it does, MSHA will have to tell us how to measure the extent of exposure that causes a given component to fall into the category where visual examination is no longer acceptable.
Further, we routinely coat metallic components with corrosion resistant chemicals (paint being one of the most common) so that the metallic component won’t be “subjected” to a corrosive environment. The issues that would arise from compromises in those coatings would be easily addressed and corrected through visual examination.
Finally, we need to understand the effect that annually taking a component apart to test it has on the component. Components that are fully enclosed must be at least partially disassembled in order to be tested. The text of the rule itself makes it clear that such action requires a re-test. So we are left wondering whether repeated disassembly for testing has more potential deleterious effect than the unquantified potential for vibration or corrosion.
The bottom line is that for most permanently installed components a visual examination should be more than sufficient. That examination can be made even more effective if it is incorporated into workplace examinations and then periodically recorded in order to comply with the rule.
With the transition still in progress, we are all waiting to see what approach MSHA will take to issues like this one. Given the pervasive nature of this rule, this issue is one that deserves to be addressed once things are settled.
Mark Savit is senior counsel at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He has extensive experience in mining and oil and gas; health, safety and environmental law; industrial disaster response; and regulatory and legislative services. He can be reached at [email protected].