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New MSHA Workplace Exam Law A Disaster (And 1 Way To Stop It)

MSHA Workplace exam rule proposal is cause for concern

Newly Proposed MSHA Workplace Exam Law is Unnecessary, Counterproductive, and Ineffective. The Good News? We Can Still Stop It.

MSHA is pushing for new, unnecessary rules again. This time they’re holding public comment meetings for a potentially disastrous MSHA workplace exam law.

The proposed rule change was immediately met with a chorus of skepticism from industry leaders when it was introduced last month.

MSC co-founder, Kim Redding, attended the first public comment meeting in Salt Lake on July 19th with a representative of our partner organization CalCIMA. Both experts had an opportunity to ask questions in an attempt to clarify potential troubling points within the proposed rule change. Kim’s goal was to discern the agency’s goals and motives in pushing for the new MSHA workplace exam law.

Unfortunately, our suspicions were confirmed.

MSHA is honing workplace exams from a blunt instrument for handing out fines to a razor sharp axe. This new rule will affect everyone: mine workers, mine management, owners and even mine contractors.

How? I’ll go through that in detail in a bit.

First, we need to go over the current rule and how it compares to the proposed regulation.

 

MSHA workplace exam rule comment button

 

The Current MSHA Workplace Exam Law

Here’s a very clear summary of the current regulation from William Doran and Gwendolyn Nightengale of Ogletree Deakins:

The existing regulation requires that “a competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health” and then “promptly initiate corrective action to correct such conditions.” In addition to this examination and corrective action, the operator is also required to maintain a record that the examination was conducted. Under the existing rule, any imminent danger that the operator identifies must be brought to the immediate attention of management, and all persons are to be withdrawn from the affected area.

 

The current workplace examination rules (30 CFR Part 56 and 57) have also gotten significantly stricter over the past 2 years through program policy letters. Kim even addressed the Program Policy Letter changes to Workplace exam in a video update:

 

 

MSHA inspectors already lack consistency from one person to the next. The new MSHA workplace exam law would only make this problem worse.

 

What is the proposed MSHA Workplace Exam rule?

According to MSHA’s press release the new workplace exam rule would require that:

  • A competent person examine the working place before miners begin work in that location.
  • Mine operators promptly notify miners of any conditions that may adversely affect their safety or health.
  • A competent person sign and date the examination record before the end of each shift. The examination record must include a description of locations examined, conditions found and corrective actions taken.
  • Records must be made available for inspection by MSHA and miners’ representatives, and operators must provide a copy of the records upon request.

At the meeting, Kim and our partner CalCIMA representative attempted to get clarification on the glaring ambiguities within the new rule. Unfortunately, the Question and Answer session can be boiled down pretty easily:

Q: What is MSHA’s definition of “adverse conditions”?

A: MSHA representatives would not get specific.

Q: How are the mine operators supposed to inform everyone on site of an “adverse condition” discovered in a workplace exam

A: MSHA representatives did not have an answer

Q: Kim asked MSHA about the end game for this new rule. Why create a new rule when we already have one and it was the safest year ever last year?

A: MSHA’s representatives dodged the question.

The full transcript of the hearing will be online in 2 weeks. I’ll dive into more specific questions and arguments then. But for now, let’s look at the information we have.

 

What’s The Endgame?

MSHA claims they’re not changing the current rule but industry experts have been through this process before. If the rule wasn’t changing, why devote huge amounts of valuable time and government resources making this change?

MSHA’s goal is clear:

Don't Worry About It

 

There’s a long list of reasons this rule change is a bad idea. Keep reading for what a former MSHA inspector has identified as the 3 worst potential consequences of this law:

 

1. The “New” MSHA Workplace Exam Law Has Already Been Tried and Is Ineffective

This proposed “new” rule, has been tried before and history has shown it doesn’t accomplish the goals of lowering fatalities and injuries. As anyone on a coal mine knows, a worker must have an MSHA Blue card in order to complete a coal mine workplace exam.

Essentially, MSHA has been individually verifying who is competent to conduct a coal mine workplace exam for years.

How has that worked out?

There have been huge, deadly disasters under MSHA’s watch where MSHA’s own report cited “insufficient workplace exam” as a root cause.

MSHA approved every person conducting those “insufficient” workplace exams.

Joe Mains cited the 122 deaths on M/NM sites from 2010 to 2015 as a reason this new law is necessary. But how will this standard improve safety at M/NM operations when it hasn’t worked in coal mines? Insanity is trying the same thing over and over while expecting different results.

 

MSHA workplace exam law tell MSHA what you think button

 

2. The New Rule Could DECREASE Miner Safety

This law would not improve safety and may actually make workers less safe. Constant assessment of the work environment is the strength of the current MSHA workplace exam law.

But in the new rule, MSHA wants workplace exams conducted with documentation of all “adverse conditions” (the definition which was not clarified by MSHA, mind you) “before work can commence.”

Unfortunately, there’s a gaping hole in this thought process that could affect mines all over the country. What about the rest of the day?

A changing environment is in the nature of mining. Site terrain changes when you remove dirt. That’s a law of nature. That doesn’t even take into account constantly changing stockpiles or wear and tear on machines and tools.

 

MSHA workplace exam law mine Image from www.mining-recruitment-jobs.com

 

How is MSHA defining a competent person? MSHA would apply the Part 46 competent person standard to this rule change. This would force managers to declare anyone who is doing a workplace exam a “competent person.” Why? MSHA wants to “hold specific workers accountable” (read, heavily penalize) if anything changes between the time of workplace exam and work occurring. I’ll get into the specifics on that in a few seconds.

msha workplace exam law gavel-and-money

This New Rule Could Have Disastrous Results. Here’s How:

Let’s go through a scenario that will DEFINITELY happen if this new rule is put into place:

A miner in Wyoming conducts his workplace exam before beginning operations (as required by the new law). Let’s call him Jim. Jim’s boss wants to start work at 8 so Jim completes his workplace exam and paperwork at 6am.

It’s early fall in Wyoming, so the temperature is 25 degrees when Jim is conducting his workplace exam. But by noon the temperature jumps to 55 degrees. A temperature swing like that will dramatically change conditions at the quarry:

  • As temperatures rise, ice melts which causes water to seep and erode areas within the high wall
  • Large rocks are fall from the high wall face as erosion occurs and the center of gravity changes
  • The high wall naturally heaves as temperatures rise

All of these changes are dangerous, potentially even deadly.

But they can be observed and avoided with the proper procedures, training, and a constant workplace exam.

MSHA Workplace Exam Law high wall collapse from Elko Daily

What if an MSHA inspector shows up at noon and takes a look at the workplace exam Jim conducted at 6am? Conditions have definitely changed. Under the new rule, that’s a violation and a giant fine for Jim’s company and maybe his personal bank account.

Why should Jim and his company get fined for the earth’s response to temperature swings?

How big is Jim’s personal fine? What does that do to his family? The MSHA can use the IRS to enforce personal fines. Does that drain Jim’s college fund for his kids?

On top of that, Jim’s managers are all open to personal fines.

Think this is overly dramatic? Think again. Kim learned MSHA’s tricks and tendencies when he was an inspector. The ambiguity within this proposed rule would be used as a weapon whenever an inspector chooses. This “hypothetical” situation WILL occur.

 

3. New MSHA Workplace Exam Law Will Affect Every Employee (And Contractor) At Every Mine

As I mentioned at the beginning of this article, this new rule would open up every worker on a M/NM site to personal fines and liability. When the new rule proposal was announced last month, Doran and Nightengale pointed out that:

These new requirements present significant enforcement liability exposure for mine supervisors. Past enforcement experience has demonstrated that MSHA will focus closely on any conditions and issues identified in workplace examination records to evaluate management’s knowledge of hazards. Identified conditions that cannot be matched up with corresponding corrective actions will then form the basis for allegations of “aggravated conduct” to support the issuance of 104(d)(1) “unwarrantable failure” citations and orders.  MSHA will, in turn, use those citations to initiate 110(c) special investigations to determine if agents of the operator have “knowingly violated or knowingly authorized the violation of” a mandatory safety standard. The workplace examination record will likely be the primary evidence of this agent knowledge.

 

Jim’s scenario above? It could happen to:

  • Mine Workers
  • Mine Managers
  • Contracting Companies
  • Human Resources for both the mines and their contractors

If you think the mining industry has an issue attracting talent now… just wait until potential employees hear about a low-level worker having his financial savings wiped out for signing a piece of paper.

Or as Nick Scala put it on the MSHA Defense Report:

At a time when mines are already experiencing problems with finding miners willing to become agents of management because of the fear of prosecution by MSHA, the proposed rule could amplify that issue. The requirement to sign and date the examination report, and its potential to create unintended liability issues, will be a major hurdle, if this rule becomes finalized in the current form. As an examiner would be certifying that a working area is free of hazards, or that all hazards were recognized in an area, the likelihood of a Section 110 action, or personal lawsuit, in the event of an injury or death is more ominous than ever.

Every single person on a mine will have their financial stability in the balance – Every Day – if this new MSHA workplace exam law gets through.

MSHA workplace exam law would light money on fire

I think we’ve established this proposed rule is a potential disaster for both safety and mine workers. We need to stop the proposed new MSHA workplace exam law, but how? What can you do about it? 

 

Tell MSHA Why This Proposed Law Is A HUGE Mistake

Getting your opinion on the public record makes a massive difference in a rulemaking case like this. Telling MSHA what you think could be the difference between this proposal becoming law and not.

Here are the 5 ways you can help stop this rule change:

  1. You can comment on the proposed rule change here.
  2. Go to the final public comment meeting for this proposed rule. The meeting information is: August 4, 2016 – Sheraton Birmingham Hotel, 2101 Richard Arrington Jr. Boulevard North, Birmingham, AL 35203 – Contact Number: (205) 324–5000
  3. CALL MSHA Directly. The correct phone number is:  (202) 693-9400
  4. Mail MSHA at: MSHA, Office of Standards, Regulations, and Variances, 201 12th Street South, Suite 4E40
  5. Or our personal preference:

MSHA workplace exam law would be a disaster-email MSHA now

 

What do you think about the proposed rule change? Do you have a different opinion or thoughts to add? Add your voice to the conversation in the comments below.

 

 

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