Workplace Examinations
for Metal / Nonmetal
Workplace Examinations
for Metal / Nonmetal: a
Practical Approach for Mine
Operators
December 6 - 7, 2016
Virginia Transportation Construction
Alliance (VTCA) – Safety Seminars
Fredericksburg, Virginia
Roanoke, Virginia
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Max L. Corley, III
Presenter
707 Virginia Street East
Suite 1300
Charleston, WV 25301
Office ^ 304.357.9945
Cell ^
304.654.1393
Fax ^
304.357.0919
[email protected]
Robert H. Beatty, Jr., Esquire
Co-Author
2
Dinsmore uses reasonable efforts to include accurate, complete
and current (as of the date posted) information in this
presentation. The information herein speaks as of its
date. Accordingly, information may no longer be accurate as the
passage of time may render information contained in, or linked to,
this presentation outdated. Dinsmore is not responsible or liable
for any misimpression that may result from your reading dated
material. This presentation is not a substitute for experienced
legal counsel and does not provide legal advice or attempt to
address the numerous factual issues that inevitably arise in any
dispute.
RESPONSIBLE ATTORNEY: Max L. Corley, III
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Question:
When is the best time to defend an
enforcement action issued by MSHA?
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Answer:
Before MSHA issues the enforcement
action.
How?
Educate management to prevent violations
and assist in legal challenges.
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Safety Should Be More Than a Slogan!
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MSHA Enforcement – Metal / Nonmetal
Monthly Impact Inspections – repeat offenders / poor records
Fatal Accidents – MSHA’s Prevention Initiatives
MSHA’s proactive measures for operators include:
Provide training, including task training
Conducting proper workplace examinations / pre-op checks
De-energize power and lock-out/tag-out
Maintain mobile equipment
Provide/wear PPE
Rulemaking
Rise in Section 110(c) Special Investigations
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SECTION 110(C) SPECIAL INVESTIGATIONS
MSHA has authority to refer criminal prosecutions
against a director, officer, or agent.
The Mine Act provides criminal sanctions for:
1) knowing or willful violations of mandatory safety and
health standards;
2) giving advance notice of MSHA inspection activity;
3) falsification of documents required by the Mine Act.
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SECTION 110(C) SPECIAL INVESTIGATIONS
Knowingly -- "A person has reason to know when he has
such information as would lead a person exercising
reasonable care to acquire knowledge of the fact in
question or to infer its existence." MSHA v. Richardson,
3 FMSHRC 8 (1981).
Under this standard, aggravated conduct is required.
The conduct must be at least high negligence.
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SECTION 110(C) SPECIAL INVESTIGATIONS
MSHA must prove a willful violation of a mandatory
health and safety standard “beyond a reasonable
doubt.”
Willfully -- "…done knowingly and purposely by a
[person] who, having a free will and choice, either
intentionally disobeys the standard or recklessly
disregards its requirements." U.S. v. Consolidation Coal
Co. & Kidd, 504 F.2d 1330, 1335 (6th Cir. 1974).
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SECTION 110(C) SPECIAL INVESTIGATIONS
Increase in criminal sanctions possible.
“Memorandum of Understanding” between DOJ / DOL –
12/17/15
Purpose: “. . . [t]o provide for coordination of matters
pertaining to worker safety that could lead to criminal
prosecution by DOJ.”
DOJ / DOL “shall discuss periodically . . . worker
safety matters that may be appropriate for enhanced
investigation or criminal referral.”
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Workplace Examinations
“. . .a Riddle Wrapped in a
Mystery Inside an Enigma . . .”
Winston S. Churchill
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Chronology of the Proposed Rule
• In July 2015, MSHA issued Program Policy Letter
(“PPL”) No. P15-IV-01 relating to work place
examinations.
• This PPL was a precursor to the proposed rule.
• On June 7, 2016, MSHA issued the proposed rule
revamping the work place examination standards in 30
C.F.R. Sections 56/57.18002.
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Current Status of the Proposed Rule
• During the comment period, MSHA held four public hearings:
•
•
•
•
July 19, 2016, Salt Lak City, Utah;
July 21, 2016, Pittsburgh, PA;
July 26, 2016, Arlington, Virginia;
August 4, 2016, Birmingham, Alabama.
• Comment period ended on September 6, 2016.
• MSHA extended the comment period to September 30, 2016,
to further evaluate the proposed rule, and how it impacts
operators.
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MSHA’s Justification for the Proposed Rule
• “Recent fatalities and other accidents [in metal/ nonmetal] suggest miners would benefit from rigorous work
place examinations conducted by experienced and
trained examiners.” Joe Main, Assistant Secretary of Labor for Mine
Safety and Health
• MSHA contends the “modified” rule will ensure operators
identify and correct conditions that may “adversely affect
the safety or health of miners.”
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The Reality of The Proposed Rule
• Expansion of the obligations in the July 2015 PPL No. P15-IV-01.
• Comprehensive overhaul of workplace examination standards.
• According to MSHA data between 2000 and 2014, MSHA issued
over 14,500 citations and orders to metal/nonmetal operators related
to workplace examinations, including 81 issued for fatal and nonfatal accidents.
• If implemented, this number is expected to increase, along with
Section 110 special investigations against company “agents.”
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Current 56/57.18002
Examination of Working Places
(a) 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. The operator shall promptly initiate
appropriate action to correct such conditions.
(b) A record that such examinations were conducted shall be kept by
the operator for a period of one year, and shall be made available for
review by the Secretary or his authorized representative.
(c) In addition, conditions that may present an imminent danger
which are noted by the person conducting the examination shall be
brought to the immediate attention of the operator who shall
withdraw all persons from the area affected (except persons referred
to in section 104(c) of the Federal Mine Safety and Health Act of
1977) until the danger is abated.
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Comparison of Proposed Rule and Old Rule
a) 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. The
operator shall promptly
initiate appropriate action
to correct such conditions.
Current Rule
a) A competent person designated
by the operator shall examine each
working place at least once each
shift, before miners begin work in
that place, for conditions that may
adversely affect safety or health.
(1) The operator shall promptly
notify miners in any affected
areas of any adverse conditions
found that may adversely affect
safety or health and promptly
initiate appropriate action to
correct such conditions.
Imminent danger section is
essentially the same.
Proposed Rule
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Comparison of Proposed Rule and Old Rule
b) A record that such
examinations were
conducted shall be kept by
the operator for a period of
one year, and shall be
made available for review
by the Secretary or his
authorized representative.
Current Rule
(b) A record of each
examination shall be made
and the person conducting
the examination shall sign
and date the record before
the end of the shift for which
the examination was made.
(1) The record shall include the
locations of all areas
examined and a description
of each condition found that
may adversely affect the safety
or health of miners.
Proposed Rule
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Comparison of Proposed Rule and Old Rule
(b)(2) The record also shall include:
(i) A description of the corrective
action taken,
(ii) The date that the corrective
action was taken, and
(iii) The name of the person who
made the record of the corrective
action and the date the record of
the corrective action was made.
(3) The operator shall maintain the
examination records for at least one
year; shall make the records
available for inspection by
authorized representatives of the
Secretary and the representatives
of miners; and shall provide these
representatives a copy on request.
Proposed Rule
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Competent Person Standard
• Current §56/57.18002(a) permits the operator to designate a
“competent person” as the work place examiner.
• A “competent person” is defined in 30 C.F.R. §56.2 as:
“a person having abilities and experience that
fully qualify him to perform the duty to which
he is assigned.”
• Should the “competent person” be a supervisor or hourly
person?
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Competent Person Standard
• MSHA’s July 2015 PPL suggested (as a best practice) that operators
designate a foreman or supervisor.
• The proposed rule does not require the “competent person” to be a
supervisor.
• Can designate hourly miners, if they have experience and ability to
recognize “hazards” predictable to someone familiar with the
mining industry in the particular work area.
• The test is one of competence – not job title.
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Competent Person Standard
• This raises several critical questions:
• Will an hourly examiner be an “agent” of the operator when
MSHA alleges an inadequate exam?
• Will the supervisor who assigned the hourly examiner be
responsible for an alleged inadequate exam?
• Will both the hourly examiner and the supervisor be
responsible?
• These questions are important given the potential for civil and
criminal sanctions against agents under §110(c) of the Mine
Act.
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Secretary of Labor v. Sunbelt Rentals, Inc. 7/20/16
• The Secretary argued that workplace examinations must
be “adequate,” but failed to define “adequate.”
• On appeal, MSHA argued that to be “adequate” a work
place examination “must identify all of the conditions that
a reasonably prudent examiner would identify that may
adversely affect safety and health.”
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Secretary of Labor v. Sunbelt Rentals, Inc. 7/20/16
• The Commission agreed with MSHA and issued two
important holdings on this topic:
• The requirement [in §56.18002] that a “competent person”
examine the working place raises a substantive requirement
that the examination be meaningful.
• An examination of working places must be “adequate” in the
sense that it identifies conditions which may adversely affect
safety and health that a reasonably prudent competent
examiner would recognize.
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Secretary of Labor v. Sunbelt Rentals, Inc. 7/20/16
• The Reasonably Prudent Person test is based on conclusions made
by an objective observer after reviewing relevant facts which were
gathered prior to the violation being issued.
• The test must be applied to all the facts, and not just those which
favor one party or the other.
• The test requires a Judge to determine the validity of MSHA’s citation
by comparing not only the inspector’s facts, but also the facts
established by a reasonably prudent work place examiner.
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Competent Person Standard
• MSHA sought comment on whether the “competent
person” should have a minimum level of experience or
particular training or knowledge to identify hazards.
• Based on Sunbelt Rentals, Commission ALJs likely will
evaluate competency of examiners to detect adverse
conditions.
• Developing comprehensive training programs for
examiners benefit compliance efforts and challenges to
inadequate examination citations.
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PPL: Scope of “Working Place”
The phrase working place is defined in 30 C.F.R.
Sections 56/57.2 as: “any place in or about a mine
where work is being performed.”
PPL No. P15-IV-01: Applies to those locations at a mine
site where persons work in the mining or milling
process.
This includes areas where work is performed on an
infrequent basis, such as areas accessed primarily
during periods of maintenance or clean up. All
such working places must be examined by a
competent person at least once per shift.
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PPL: Scope of “Working Place”
Neil Merrifield: “If nobody’s been working in those
locations then they are not required to do an examination
because there is nobody working in those places.”
Patricia Silvey (MSHA Deputy Assistant Secretary for
Operations): “If a person is not in an area for two weeks,
no examination is required.”
Solving the Riddle: How are operators to determine
what an “infrequent basis” means?
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MSHA Notice: Scope of “Working Place”
MSHA Notice: definition of “working place” is the same
Not necessary to examine entire mine – only actual work
areas
“Before work begins in any area” – depends on when
work starts
Includes roads traveled to and from a work area.
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MSHA Notice: Scope of “Working Place”
Does not include:
roads not “directly involved” in the mining process,
administrative buildings,
parking lots,
lunchrooms,
toilet facilities, or
inactive storage areas
Isolated, abandoned or idle areas – only if work performed in these
areas during a shift
Areas not subject to exam, could still be inspected.
Arguably, any place traveled could be considered a “working place.”
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Scope of “Working Place”
Keep an open dialogue with MSHA in your district
Seek clarification of questionable areas – does the
agency deem them to be “working places”
What areas does MSHA consider to be “directly
involved” in the milling process?
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Timing of Work Place Examinations
• Proposed rule dictates that exams be conducted before
miners begin work in a place.
• Modeled after preshift examination standards in Part 75
for underground coal.
• Dilemma: one size does not fit all.
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Timing of Work Place Examinations
• Comments raised M/NM issues not always present in
underground coal (i.e., nine different starting times in a
single day).
• Comment questions included:
• Do I need an examiner for each shift?
• Can an examiner overlap his exam with those on
another shift?
• Can a 12 hour shift examiner use the work place
examination of an 8 hour examiner if the 8 hour shift is
over, but the 12 hour shift is not?
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Timing of Work Place Examinations
The inclusion of a time frame is to make record keeping
more than an exercise.
Impact will vary among operations.
MSHA sought comment on whether an exam should be
conducted within a specified time period before miners
begin working in an area.
Agency seems eager to establish time frames and
certification and record keeping requirements imposed
on coal in 30 C.F.R. § 75.360.
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Conditions That “Adversely Affect” Safety or Health
• The proposed rule fails to define the phrase “conditions
that may adversely affect safety or health.” Vague.
• In Part 75, Coal mine examiners are required to find and
record “hazardous conditions.”
• Is a condition that may “adversely affect safety or health”
the same as a “hazardous” condition? Broad.
• PPL No. P15-IV-01 directs examiners to recognize
“hazards.” Phrases seem interchangeable.
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Conditions That “Adversely Affect” Safety or Health
Inadequate exam citations are based solely on the
inspector’s subjective observations.
Does existence of a condition = Inadequate exam
(?)
No legal definition, so a “hazard” becomes any violation.
Violations of “Rules to Live By” = “hazardous conditions.”
Inspectors compare recent examination reports to their
observations to support violations. (CATCH – 22)
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Conditions That “Adversely Affect” Safety or Health
• Key terms not defined, what is an examiner to do?
• Upside – examiners have discretion, USE IT.
• Take exam duties seriously - allocate adequate time.
• If unsure about a condition, err on the side of caution.
• If competency not questioned, then examiner’s
subjective opinions and findings are relevant to the
“reasonable prudent person test.”
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Conditions That “Adversely Affect” Safety or Health
• Operators should seek clarity from agency.
• Examiners must pay attention to “Rules to Live by
Standards,” MSHA’s top twenty list and history of
violations.
• MSHA inspectors are creatures of habit.
• Respectfully question arbitrary enforcement.
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Conditions That “Adversely Affect” Safety or Health
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Prompt Notification of Miners in Affected Areas
• Proposed rule requires operators to “promptly notify”
miners in any affected areas of any adverse conditions
found.
• Concern: the obligation to notify could exceed the area
of the “working place” being examined!
• Examiners may be expected to consider areas beyond
the “working place” in evaluating who to notify.
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Prompt Notification of Miners in Affected Areas
• How and when is the examiner to document his notice?
• Proposed rule requires a record of the exam – it does
not address the “notice” requirement.
• Documentation of the notice given, to whom and when is
critical.
• Clarification of the scope of the notice requirement is
needed.
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Prompt Notification of Miners in Affected Areas
MSHA Notice: “To promptly notify miners” means any
effective form of notice to alert miners of adverse
conditions in their “working place” before they begin
work in the area.
Before potential exposure
ASAP after work begins, if discovered while working
Can be verbal, written or descriptive warning signage.
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Prompt Notification of Miners in Affected Areas
As a practical matter, examiners can report conditions
before a shift begins.
Communication between supervisors of concurrent shifts
needed before the next shift begins.
Pre-shift safety meetings / review of examination records
from previous shifts.
This approach requires the start and finish of exams
prior to a shift change – similar to coal.
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PROMPTLY INITIATE APPROPRIATE ACTION
After “notification,” the operator must promptly initiate
appropriate corrective action.
What is appropriate action? Vague and Subjective.
Reporting the condition?
Dangering off the area?
Complete abatement?
Based on circumstances / nature and extent of condition.
Case by case basis. Judged by inspector subjectively.
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PROMPTLY INITIATE APPROPRIATE ACTION
How long does an operator have to “promptly initiate
appropriate action?”
“Promptly” is not defined. Vague. Depends on
circumstances.
The issues of when and to what extent corrective action
is needed – differences of opinion likely.
Quality documentation is crucial to prevent enforcement.
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Reporting and Corrective Action
• The exam record must be made before the end of the
shift and include:
•
•
•
•
•
•
•
signature of the examiner;
the date of the examination;
locations of all areas examined;
a description of each condition found;
a description of the corrective action taken;
the date the corrective action was taken;
the name of the person who made the corrective action
record;
• the date the record of the corrective action was made.
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Reporting and Corrective Action
• MSHA expects the person correcting the condition to
create the record.
• What if the person correcting the condition is someone
other than the examiner?
• Is the examiner responsible if the person correcting
does not make a record?
• MSHA takes the signing of examination records
seriously.
• Clarification is needed.
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Reporting and Corrective Action
MSHA also expects the examiner to sign and date, before the
end of the shift.
Comment concerns: signing requirement would increase
potential liability under 110(c).
MSHA Notice: “agent” liability under the Act relates to the
“substantive duties and delegated responsibilities.”
Does not change “competent person” qualification.
MSHA sought comment on alternative approach of simply
identifying the “competent person” in the record.
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Reporting and Corrective Action
Comments: recordkeeping for immediately corrected
conditions.
MSHA Notice: not burdensome, such record would
increase operator awareness of potential dangers and
make them more proactive.
MSHA sought comment on how operators use records to
identify and correct “systemic adverse conditions” and
possible limitations on using such records.
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Reporting and Corrective Action
Proposed rule significantly increases examiner’s duties.
Concern: record must be made, signed and dated before
end of shift – any variance could be viewed as falsification,
such as:
signing on a later date or time;
having someone else sign in your absence;
having someone else complete the record from a verbal
report;
Examiners must adhere to the standard – potential civil
and criminal liability.
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Reporting and Corrective Action
“Locations of all areas examined”:
How specific must the report be? Breadth of areas?
Should descriptions be general or specific? How specific?
Potential enforcement action for reported, unreported, or
different conditions.
Examiners must avoid being too descriptive or not
descriptive enough. (Avoid overstating conditions and
admissions against interest).
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Reporting and Corrective Action
Record of corrective action:
Caution: the record may enable MSHA to track the time period
for abatement of reported conditions.
MSHA may scrutinize the timing and extent of corrective action.
The lack of a follow-up exam = failure to abate “within a
reasonable time” = 104(b) failure to abate order.
Management must hold examiners and miners accountable for
abatement – follow-up, confirm, document efforts.
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Maintaining Examinations Records
Must maintain records for at least one (1) year –
consider longer retention when litigation is possible.
Must make the records available for inspection to
Secretary’s and miners’ representatives.
Must provide copies to them upon request.
Concern: company records will belong employees –
possible impropriety in use and disclosure.
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Task Training
Inadequate task training citations possible each time an
inspector finds “multiple safety hazards” (i.e. citations or
orders).
Orders likely under Section 104(g)(1).
Operators may be required to modify training programs.
Task train miners on new tasks and changes in tasks
and on different, but related equipment.
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Tips on Examining Working Places
Carefully select competent examiners (consider previous
abilities and experience).
Provide comprehensive training on hazard recognition
(tailored / focused), examiner’s right and responsibilities,
miner’s rights and Section 110(c) special investigations.
Understanding that dereliction of duty = personal liability
risk = improved performance and safety culture.
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Tips on Examining Working Places
MSHA’s focus will be on quality of examinations:
Be vigilant in identifying adverse and reoccurring conditions.
Promptly initiate corrective action.
Conduct follow-up examinations – failure to do so could be
viewed as a failure to correct reported conditions “within a
reasonable time”.
Ensure that follow-up examinations and reports are made for
conditions requiring more than one (1) shift to correct. Note
progress made.
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Tips on Examining Working Places
Use MSHA’s “Rules to Live By” to assist the examiner.
Violations = hazards / affect safety and health!
Be aware of frequently cited conditions at the mine /
repeat violations.
Be aware of MSHA’s “top twenty” list of frequently
cited conditions (creatures of habit).
Ensure prompt correction / follow-up. Accountability!
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Tips on Examining Working Places
Think beyond abatement - are there systemic or
latent hazards to address? Why are they
reoccurring?
Communicate with employees about examinations,
citations, and enforcement trends and include them in
safety meetings.
Devise ways to prevent reoccurrences.
Review MSHA regulations, citations and inspection
notes with employees to increase compliance
knowledge.
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Tips on Reporting Examinations
Never fill out or sign a report you did not conduct.
Keep personal notes with accurate dates, times, areas
and conditions examined.
Do not disclose personal notes to inspectors – direct
request to safety director - consult counsel.
If you do not think a condition is a hazard (but you
believe an inspector might), make a note of this.
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Tips on Reporting Examinations
The Reasonably Prudent Person Test: a “competent”
examiner qualifies
MSHA inspectors do not have final say on whether a
“hazard” exists. These decisions are fact based.
The examiner’s opinion matters, if supported by facts
and evidence.
Document conditions that need reported and those you
decide not to report.
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Tips on Reporting the Examinations
Expect increased MSHA scrutiny of records to support
inadequate examination citations.
Train examiners on proper reporting methods.
Avoid “over-writing” conditions in the record.
Avoid editorials, opinions, speculation, and over
generalizations of conditions – be strictly factual!
If you have doubts, err on the side of reporting.
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ACCOUNTABILITY MATTERS
Management should conduct periodic, random safety
audits – review results with miners
Conduct random follow-up examinations – review results
with miners
Evaluate examiner performance – promptly address
deficiencies – retrain
Create an open safety dialogue with employees
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ACCOUNTABILITY MATTERS
Craft thoughtful safety and disciplinary policies – provide
training – document it.
Actively and consistently enforce those policies.
Scrutinize inadequate examination citations and conduct
necessary follow-up (communication, retraining,
discipline, fact gathering, preservation of evidence).
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The Inadequate Examination Citation/Order
When was examination done compared to the inspection?
MSHA must prove the condition existed at the time of the
examination.
Speculative - unless inspector obtains a statement.
BE AWARE: Inspectors routinely obtain statements from
management to support arguments that the condition existed
at the time of the examination, that it should have been
observed or that management was aware of it.
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The Inadequate Examination Citation/Order
Management should immediately investigate enforcement
action to preserve vital evidence.
Consider requesting an informal conference with MSHA to
present evidence to justify a paper or penalty reduction.
Be aware: All 104(d) unwarrantable failure citations /orders
will be considered for possible Section 110(c) special
investigation.
All foremen should be advised of their rights in a special
investigation – but, do not interfere.
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Dual Liability for Contractors
Concern: dual liability of operators and contractors
Contractor employees’ lack of training, knowledge of
safety regulations or PPE
Operator’s lack of knowledge of contractors on site,
where, how long, why and activities
Failure to conduct pre-op examinations on equipment
Failure to communicate responsibility for examinations
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Questions?
Max L. Corley, III
Partner
DINSMORE & SHOHL LLP
Charleston, West Virginia
Direct dial: 304.357.9945
Cell phone: 304.654.1393
[email protected]
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