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MSHA Workplace Exam Rules Just Got Harder

It’s official, the new MSHA workplace exam rule will go into effect May 23rd, 2017. We covered this rule change when it was proposed in July. Safety officials and managers across the country had a negative reaction to the proposal, to say the least (more on that later).

What’s in the “New” MSHA Workplace Exam Rule?

Let’s review what’s happening with the MSHA workplace exam rule. There are 4 main changes that will have a massive impact on how mines across the country conduct their workplace exams.

The updated Workplace Exam standard requires:

  1. The examination be conducted before miners are exposed to adverse conditions.
  2. Affected miners be notified when a hazardous condition is found.
  3. A record of the examination include the locations examined, the adverse conditions found and the date of the corrective action.

And:

The final rule also requires that the examination record include: the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect the safety or health of miners, and the date of the corrective action.

But the new rule isn’t new at all. This is from our article in July:

The “New” MSHA Workplace Exam Rule 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.

The most insane detail comes from MSHA in the proposal itself:

“MSHA is unable to quantify the benefits from this proposed rulemaking, including the proposed provisions that an examination of the working place be conducted before miners begin work in an area”

The people proposing this rule admit there is no evidence it will improve safety. And there is a reasonable argument this rule will make miners LESS safe which we also went over this summer:

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.

 

Won’t the New Administration Throw Out the Rule?

Here’s the deal:

No one knows how President Trump is going to handle this. He may choose not to enforce it but there are still a lot of moving parts and Senate confirmations before anyone can make a prediction.

Even if a Trump Administration decides to delay enforcement, he can’t throw out the regulation. There is no legal way for him to take it off the books now that it has gone through the public comment period. That means eventually when a Democrat takes the White House, this rule will be waiting for their Assistant Secretary of Labor for Mine Safety.

This new MSHA Workplace Exam rule will be implemented. It’s just a matter of when. And when it is enforced you NEED to have all your ducks in a row.

What’s So Bad About This Update To The MSHA Workplace Exam Rule?

Many mine safety personnel and managers across the country spoke out against this rule during the public comment period. Let’s take a look at what they have to say.

 

The proposed rule is focused on workplace conditions, but not the behavior of workers.

The proposal targets a false problem. The historically low injury rates achieved by industry demonstrate a collective commitment to safe practices. These rates are not achieved by luck or by fluke: aggregates operators take their safety responsibilities seriously, including the identification of hazards and unsafe conditions. What MSHA is overlooking is that the overwhelming majority of injuries and accidents are functions not of inherently unsafe conditions but of unsafe behavior of either management or workers. MSHA’s proposed workplaces examination rule will laden operators with costly additional administrative burdens while doing nothing about the predominant source of workplace injuries – the carelessness by some in the workplace. We have seen in recent years that safety improvements focused on improving behaviors of workers are more effective at reducing injuries than ones focused on workplace conditions.

Joseph Casper, VP of Safety, NSSGA

 

Saving miners’ lives is important; we’d just like to see the evidence out there that this particular rule is going to advance that cause.

A real concern, however, for mine operators is that the new rule may have unintended consequences of just being another way to cite mine operators. For this rule to have validity with the workforce, it needs to be seen as protecting workers, not just as a punitive tool.

These concerns are not that far-fetched, as some recent examples of MSHA’s citations might attest to. An operator was cited for a sign that stated “no smoking, matches, or open lights” in this area, because the standard requires the same sign to say “no smoking or open flames.” One word. An operator was cited for using the incorrect font on a site-specific training checklist, and an operator was cited for not including the middle name of an employee on a task training certificate.

 Brian Bigley, Safety Manager-Lehigh Southwest Cement Plant Tehachapi, Representing CalCIMA

 This image from our last post feels appropriate again:
msha workplace exam rule

There are hundreds of quotes like those in the public comments. We’re still grappling with the far-reaching effects of this rule change. Some of the initial issues are:

  • Will MSHA workplace examination forms need to completely change?
  • How will mine administrators keep up with this additional paperwork?
  • Who is going to complete these new workplace exams? Management? Workers? Do workers need to be listed as “Competent People”?
  • How will MSHA inspectors interpret “adverse condition”?
  • How will management make sure every “adverse condition” noted on a workplace exam form is then followed with when it was fixed?

 

We’ll try to answer all of those questions (and the dozens I’m sure will pop up) in future articles.

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