Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/562664
AGGREGATES MANAGER September 2015 38 AGGREGATES MANAGER September 2015 38 Rock MSHA uses policy to substantively revise workplace exam standards. RULEMAKING? by Patrick W. Dennison Patrick W. Dennison is an associate in Jackson Kelly PLLC's Pittsburgh office, practicing in the Occupational Safety and Health Practice Group and the Coal and Oil and Gas Industry Groups. He can be reached at 412-434-8815 or via email at pwdennison@ jacksonkelly.com. Who Needs A major focus of the Mine Safety and Health Administration's (MSHA) fatality prevention initia- tive, announced on Jan. 30, 2015, is workplace examinations required under 30 C.F.R. §§ 56/57.18002. But MSHA's at- tention to workplace examinations was first publicized in the November 2014 Regulatory Agenda (Agenda) for the year 2015, which included a "prerule" intent for a "Request for Information" (RFI) "on the examination of working places in metal and non-metal mines to determine the adequacy of the Agency's existing standards." MSHA stated that it would seek information regarding: persons conducting the examination; the quality of the examination; and the recordkeeping pro- vision, among other provisions. The RFI was slated for June 2015. However, as a hint of things to come, the Agenda stated, "MSHA also is considering whether issuing guidance or disseminating best practices regarding the existing standards would effectively accom- plish the Agency's goal of providing miners a safe working place." On May 21, 2015, the 2015 Spring Uni- fied Regulatory Agenda for the Department of Labor was released, and it included the same RFI for workplace examinations described above, this time with a proposed date of September 2015. But now, rather than seek- ing information through an RFI, MSHA issued so-called "guidance" regarding workplace ex- aminations. In early July 2015, MSHA briefly posted Program Policy Letter No. P15-IV-01 (PPL), pertaining to examinations of working places, on its website. The PPL had an effec- tive date of July 9, 2015. However, shortly after posting the PPL to its website, MSHA removed it, indicating that it would be rein- troduced at a stakeholder meeting set for July 22, 2015. At the stakeholder's meeting on July 22, MSHA "re-issued" PPL No. P15-IV-01. The PPL's stated purpose is "to clarify that the examination of working places required un- der 30 C.F.R. §§ 56/57.18002 includes the requirement that the operator shall examine each working place at least once each shift for conditions which adversely affect safety or health, that the examination must be conducted by a competent person, and that a record of the examination must be main- tained and made available for review by the Secretary or his authorized representative." And while MSHA's Neil Merrifield has stated