Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/718149
AGGREGATES MANAGER / September 2016 39 Following up on reactions to substantive changes in its Program Policy Letter, MSHA issues a proposed rule on workplace exams. Patrick Wayne Dennison is an attorney in the Pittsburgh office of Jackson Kelly PLLC, practic- ing in the Occupational Safety and Health Practice Group. He can be reached at 412- 434-9915 or pwdennison@ jacksonkelly.com. Benjamin J. Ross is an associate in the Denver office, also practicing in the Occupational Safety and Health Practice Group. He can be reached at 303-390-0026 or bross@jacksonkelly.com. Workplace Exams Update I n the September, October, and No- vember 2015 editions of Aggregates Manager, Jackson Kelly attorneys ad- dressed the Mine Safety and Health Administration's (MSHA) July 2015 Program Policy Letter No. P15-IV-01 (PPL) regard- ing examinations of working places. As you may recall, the PPL's stated purpose was "to clarify that the examination of working places required under 30 C.F.R. ยงยง 56/57.18002 in- cludes the requirement that the operator shall examine each working place at least once each shift for conditions which adversely af- fect safety or health, that the examination must be conducted by a competent person, and that a record of the examination must be maintained and made available for review by the Secretary or his authorized representa- tive." And despite MSHA's Metal and Non- metal Administrator Neil Merrifield stating that there was "nothing new" in the PPL, the September 2015 article detailed the substan- tive changes contained in the PPL, which we viewed as MSHA's attempt to change a stan- dard without conducting formal rulemaking. Whether MSHA read any of the 2015 workplace examination articles remains a mystery, but the industry's concerns regard- ing the substantive changes to the workplace examination rule were apparently too com- pelling to ignore. On June 7, 2016, MSHA notified stakeholders of two initiatives, one of which included a proposed rule regarding workplace examinations for metal/non-metal mines. The proposed rule states as follows: (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. (2) Conditions noted by the person con- ducting the examination that may present an imminent danger 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. (b) A record of each examination shall be made, and the person conducting the ex- amination shall sign and date the record before the end of the shift for which the examination is made. (1) The record shall include the locations of all areas examined and a descrip- tion of each condition found that may adversely affect the safety or health of miners. (2) The record shall also include: (i) A description of the corrective action taken, (ii) The date that the corrective ac- tion 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. by Patrick W. Dennison and Benjamin J. Ross ROCKLAW