Program Policy Letter could change workplace examination practices: MSHA's new interpretation of the 'examination of working places' standard raises some red flags.
The standard (30 C.F.R. [section] [section] 56/57.18002) requires that a competent person designated by the operator examine each working place at least once each shift. "Competent person" is defined as "a person having abilities and experience that fully qualify him to perform the duty to which he is assigned." Mines traditionally have trained, experienced and competent hourly miners perform their workplace exam as it gives miners ownership over their safety and because, logistically and practically speaking, supervisors cannot be everywhere at once.
Per the Program Policy, however, MSHA stated that a "best practice is for a foreman or other supervisor to conduct the examination; an experienced non-supervisor miner may also be 'competent.'" Interestingly, the policy's manual provides that a competent person is "any person, who in the judgment of the operator, is fully qualified to perform the assigned task."
Since the issuance of the new PPL, some MSHA Field Offices have taken the position that any hourly miner that performs a workplace inspection is an "agent" of the company and that any violation of the standard by an agent of the company is high negligence. These positions are flawed to say the least. In support for its position that an hourly miner performing a workplace examination is an agent of the company, MSHA cited two cases in which the employees in question either stated they were agents of the company, were the actual person in charge of the mine at the time the citation was issued, or were directing the workforce and being treated like a supervisor by other hourly employees. See Secretary v. Ambrosia, 18 FMSHRC 1552 (Commission); Secretary v. Nelson Quarries, 31 FMSHRC (Commission 2009).
Other cases cited by MSHA for this alleged authority relate to coal cases where an employee was performing a statutorily mandated duty of the operator (Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979) or where the standard cited specifically required the task be completed by a foreman or equivalent mine official or other certified persons specifically designated by the operator to perform the inspection. See Cumberland Coal v. Secretary, 31 FMSHRC 137 (Zielinski 2009). Mettiki Coal Corp., 13 FMSHRC 189 (Commission 1991), also cited by MSHA, can also easily be distinguished on the grounds the employee in question was designated the electrical examiner and was assigned to conduct monthly electrical inspections.
Last, MSHA asserts that Rochester & Pittsburgh Coal Co., 13 FMSHRC 189 (Commission 1991), stands for the principal that a rank and file miner can be an agent. In that case the Commission found that an hourly miner was an agent because he was designated to conduct required weekly examinations. However, in that case the hourly miner was a certified mine examiner under MSHA regulations and was charged with conducting weekly examinations of the coal mine--a task which requires more qualifications and seniority than a workplace examination under 30 C.F.R. [section] [section] 56/57.18002.
Moreover, during recent inspections MSHA has taken the position that all violations involving an agent of the company are high negligence, although they do not and cannot cite any authority for that principle; there is no such authority. In fact, several of the cases cited by MSHA above involved an agent of the company and the citations are moderate negligence. The high negligence standard is not reliant on an agent of the company being involved, but only whether the operator knew or should have known of the violative condition or practice and there were no mitigating circumstances. See 30 CFR [section] 100.
What is a Working Place?
The PPL seeks to require operators to do more workplace examinations than before. It said that working places "include areas where work is performed on an infrequent basis, such as areas accessed primarily during periods of maintenance or clean-up." This seemingly expands the definition of working place to areas only entered for clean-up purposes.
In fact, operators have reported getting citations for housekeeping in areas that are barricaded and signed that entry is only permitted once the areas has been cleaned. In an industry where material build-up is part of the operating procedures, MSHA seems to be creating a scenario where compliance is not possible, though the appropriate safety precautions have been taken.
MSHA also stated that if a trained, competent person fails to identify multiple safety hazards, this may indicate that task training as required under Part 46 and 48 was not adequate or did not occur. This implies that if an operator gets a violation for failure to conduct an adequate workplace inspection, they may also be looking at a training violation.
Records of Examinations
The current regulation requires that only the operators keep a "record that such examinations were conducted." 30 C.F.R. [section][section] 56/57.18002(b). However, PPL stated that "it is a best practice to include a description of such conditions in the examination record to facilitate correction and to alert others at the mine of conditions that may recur or in other ways affect them."
The PPL also conflicts with the Program Policy Manual, where it states operators must retain workplace examination records for the preceding 12 months. The manual allows an operator to discard these records after MSHA has completed its next regular inspection of the mine if the operator also certifies the examinations have been made for the preceding 12 months.
MSHA's position on workplace examination and hourly miners being agents of the company begs the question of whether it a wise position to take per public policy. Is the agency essentially trying to discourage miners from taking the responsibility of ensuring a safe workplace? Is this enforcement measure solely looking for increased negligence on citations and increased penalties for operators?
The PPL is already proving to impose new compliance burdens and create significant new liability for operators. Operators should be sure to have adequate training records for tasking training for workplace inspections and have regular toolbox safety meetings that go over what is required for performing an adequate workplace examination and completing the examination record.
Should MSHA continue to broaden the definitions and requirements of the regulation, operators should look for court decisions regarding these issues as they are likely to be litigated. In addition, operators should consult with counsel carefully consider whether to pay or contest citations issued under the new PPL that appear to go beyond the requirements of the standard itself or impose additional negligence based on a flawed view of the prevailing law so that damaging precedents are not established.
Donna Vetrano Pryor is a shareholder in the Denver office of Jackson Lewis P.C. She focuses on commercial litigation and administrative litigation related to mine safety and occupational safety, among other areas, and assists a diverse group of clients--including privately and publicly held corporations, large multinational companies, and individuals--in complex commercial litigation matters.
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|Author:||Pryor, Donna Vetrano|
|Date:||Oct 1, 2015|
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