Citing 1989 case law under Part 57, the Commission ruled that examinations under §56.18002 must be “adequate” and pass the “reasonably prudent person test.” Violations under the examination standard will be judged as to whether a person familiar with the mining industry would have recognized the prohibition or requirement of the standard.
In September 2013, Judge Thomas McCarthy ruled that examinations need not be adequate. “[T]he standard does not contain an ‘adequate’ workplace examination requirement. Neither Commission decisions or program policy guidance contain any mention of ‘adequate’ exams,” the judge said in the case. But all five of the commissioners disagreed with Judge McCarthy’s finding.
The question of examination requirements stems from an accident at Roanoke Cement Co.’s raw-mix limestone heating tower in Virginia.
Roanoke contracted with LVR Inc. to perform annual maintenance of the towers, and LVR contracted with Sunbelt Rentals to install scaffolding around the towers. After scaffolding was installed inside the towers, a Sunbelt supervisor examined the area above the sixth level where the crew would be working and did not find any hanging or loose material. However, he listed the hazard of potentially falling material in the exam book. A Sunbelt employee was then struck by falling material above and knocked unconscious.
An MSHA inspector who examined the facility after the accident found loose material on the seventh level that could have fallen through a hole in the floor, onto the worker’s below on the sixth level. He issued a citation under §56.18002(a) for failing to perform an “adequate” examination that would have discovered a “latent” hazard.
Looking to the Standard
The ALJ said it has three requirements:
A daily workplace exam to identify safety or health hazards.
The exams must be made by a competent person.
A record of the exam must be recorded.
In this case, Sunbelt performed each of those requirements with its exam of the workplace, the ALJ said.
The Secretary argued that the examination was not “adequate.” But Judge McCarthy said the standard does not contain an “adequate” workplace examination requirement. Neither Commission decisions or program policy guidance contain any mention of “adequate” exams, the judge said.
It was noted that the examiner in this case was properly trained, and had listed falling objects as potential hazards on the pre-shift hazard assessment form. While the examiner may have performed duties in a negligent manner by failing to go to the seventh level, there was no adequacy requirement that he do so.
But even if he had such a duty, the ALJ would have still vacated the citation because MSHA did not provide fair notice that the Secretary’s interpretation of the standard included an adequacy requirement.
Exams Must Have ‘Substance’
In overturning the ALJ’s finding, the Commission said that examinations must meet a standard of adequacy, which is more than an average miner can recognize in terms of hazards (emphasis added), and “there must be substance to the examination.”
“Many miners could detect obvious or egregious hazards. The requirement that a ‘competent person’ examine the working place raises the substantive requirement for the examination to the level of a meaningful examination.”
The Commission also noted “the second sentence of §56.18002(a) mandates that, ‘[t]he operator shall promptly initiate appropriate actions to correct such conditions.” Therefore, the examination is to identify “conditions that may affect safety or health,” and the examinations must be “adequate, in the sense that it identifies conditions which may adversely affect safety and health.”
This is why, the Commission said, that it is also appropriate to apply a “reasonably prudent person test.” This entails that “a person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the mining industry, would recognize a hazard warranting correction within the purview of the applicable standard.”
SUNBELT RENTALS INC.; LVR INC.; ROANOKE CEMENT CO., 7/12/2016, FMSHRC Nos. VA 2013-275-M et al.; 23 MSHN D-2303