MSHA Says Its Workplace Examination Rule Is Fully Cooked and Ready to Serve. But Is It?
By Avi Meyerstein
No one could have predicted the long and tortured road traveled so far by MSHA’s 2017 “Final Rule on Examinations of Working Places in Metal and Nonmetal Mines.” The prior administration’s proposal to replace a successful decades-old rule led many to react by saying, “If it ain’t broke, don’t fix it.” MSHA itself wrote that it was “unable to quantify the benefits” of the new rule. Yet, in just six months in 2016, MSHA held hearings and took comments, receiving strong opposition and many questions.
Some thought the rule might not resurface following this opposition and the change in administration. But, three days after taking office, the new administration allowed publication of the final rule. Over the next 15 months, uncertainty prevailed. MSHA delayed the effective date of the rule repeatedly and sometimes suggested it might reconsider. Meanwhile, several industry associations challenged the rule in court.
Eventually, in 2018, MSHA adopted two changes to the 2017 rule, hoping to defuse objections: allowing workplace exams to occur “as miners begin work” in an area (rather than before work begins) and allowing miners to “promptly” correct a condition without having to document it. Even with these tweaks, most of the 2017 rule remained intact, which, MSHA conceded, the “majority of commenters” opposed. Another court challenge then began, this time by the unions. They preferred the 2017 rule without the two 2018 changes.
In the latest twist, the unions won their case, and the 2017 rule as originally issued is now technically in effect. Enforcement will begin at the very end of December. To help everyone comply, MSHA has now announced a schedule of public meetings and issued an updated FAQ to explain what the rule requires.
But, the saga is not necessarily over. First, the original trade association court challenge is still pending as of this writing. It had been on hold until last month, waiting for the outcome of the union court case. If the trade associations continue to press their case, the U.S. Court of Appeals for the 11th Circuit will get to decide the fate of the 2017 rule.
More importantly, though, even if the rule stays on the books as-is, there are still many unresolved questions. The FAQ has been increasingly helpful, especially as MSHA has expanded it. But, there are a number of situations it still does not address. For just some examples, here are some suggestions made in 2018 by the Mining Coalition (a group we represent) that still await a place in the FAQ:
No need to record or notify about conditions that arise after the initial exam is completed. MSHA’s FAQ explains that the rule “does not limit” how many examinations are done each shift. But, if after completing the official pre-work examination miners continually examine their work areas as they work, do they have to record what they find and make more notifications?
A competent person can list multiple areas examined on one record. The rule requires examining “each” working place and making a “record” of “each” exam. Yet, it also says that “the record” should list “areas” examined. MSHA could clarify that one record can list multiple areas.
Miners can examine travelways as they travel through them. For example, haul truck drivers could examine the haulage road ahead for safety conditions as they drive on it (carefully, of course); workers walking from one work area to another can do the same.
Travelways only need exam records for uncorrected conditions. Some mines have miles of road. Haul truck drivers should not need to record an exam of every road they travel unless a condition could not be corrected promptly.
Exam violations require actual evidence that exams were not performed. Too often, inspectors assume that no exam was performed simply because they find violative conditions. A citation for failure to examine should require some direct evidence (such as testimony) that no exam was done. Likewise, the lack of an exam record does not prove the lack of an exam, just the failure to document it.
Only one citation of 56/57.18002 per incident. In each instance, MSHA should either cite a failure to perform an exam, to notify, to correct, or to properly document, but not more than one.
No citing a competent person who examines or takes corrective action in good faith. The rule has no “adequacy” requirement. MSHA should not second-guess and penalize competent miners who examine or correct conditions in good faith by citing them just because the inspector would have made a different judgment call about what is a hazardous condition or what steps are required to correct it.
Descriptions that identify conditions are sufficient. MSHA should not cite an operator for “deficient descriptions” as long as conditions are identified. The standard does not require any particular amount of detail in describing a condition. Now that even issues corrected immediately must be recorded, MSHA should clarify that it’s good enough to note “housekeeping” or “debris cleanup” rather than list every extension cord that was moved in every area.
Computerized records that maintain change logs should comply. MSHA has said that electronic records must not be subject to alteration. But, records must be updated to reflect corrective actions, and no system is impenetrable. One compliant approach should be a transparent system that tracks changes.
Limits on time and scope for exam record requests. Many mines perform tens of thousands of examinations each year. Responding to requests could take time, and responding to multiple requests or those not limited to some time period or number of pages could be extremely costly and difficult. MSHA could explain better exactly what is required here. It could state that an operator has 14 days to provide records, for example. It could also limit how much material must be provided (such as only records for the up to the last 30 days or 100 pages per month).
Anyone who thinks they know how this story ends should read the beginning of this article again. No doubt, there may be more twists and turns ahead.
In the meantime, MSHA’s commitments to thorough and transparent rollout of the rule are promising. They will be especially successful if they continue to address pending questions like these so that everyone knows what it takes.
Avi Meyerstein is part of law firm Husch Blackwell’s Technology, Manufacturing & Transportation team, and focuses his practice on workplace safety and health matters, litigation and appellate law. He can be reached at [email protected] or 202-378-2384.