october 2015 newsletter - bmi.state.nm.us · ed by the operator to conduct work place examinations....
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Bureau of Mine Safety August 2015 Newsletter 1
October 2015 Newsletter Guest Column
Bob Beatty is a Partner in the law
firm of Dinsmore & Shohl LLP
where his practice focuses exclu-
sively on representing mine opera-
tors in the coal and metal/non-metal
sectors of the mining industry. Dur-
ing his tenure with Dinsmore, Bob
has been responsible for overseeing
litigation in over 1400 cases before
the Federal Mine Safety and Health
Review Commission, and state regulatory enforcement
agencies. Between 1997 and 2004, Bob served as a
Presidential appointee, twice confirmed by the United
States Senate, as a member of the Federal Mine Safety
and Health Review Commission. He has also served as
the Administrator of Legal Services for the West Vir-
ginia Office of Miners‟ Health, Safety and Training. In
addition to litigation, Bob provides comprehensive pre-
enforcement awareness training for mine operators cov-
ering the Mine Act, MSHA regulations, and a host of
other MSHA related matters.
For more information, contact the author by
electronic mail at [email protected] or
304.225.1412 or www.dinsmore.com. Also join Bob
for 2 law seminars that are occurring on November 3
and 4 in New Mexico.
Navigating the Post PPL No. P15-IV-01
Workplace Examination
In Section 2 of the Federal Mine Safety and
Health Act of 1977 (“Mine Act”), Congress declared
that mine operators, with the assistance of the miners,
have the primary responsibility to prevent the existence
of unsafe and unhealthful conditions in the nation‟s
mines. In furtherance of this Congressional mandate,
the Mine Safety and Health Administration (“MSHA”)
promulgated work place examination regulation rules in
both the coal and metal/non-metal sections of the mining
industry designed to detect and correct such conditions.
In metal/non-metal, the work place examination regula-
tion is set forth in 30 CFR §§56/57.18002
(“§§56/57.18002”), and states as follows:
(a) A competent person designated by the opera-
tor shall examine each working place at least once each
shift for conditions which may adversely affect safety
or health. The operator shall promptly initiate appropri-
ate action to correct such conditions.
(b) A record that such examinations were con-
ducted shall be kept by the operator for a period of one
year, and shall be made available for review by the Sec-
retary or his authorized representative.
(c) In addition, conditions that may present an
imminent danger which are noted by the person con-
ducting the examination shall be brought to the immedi-
ate attention of the operator who shall withdraw all per-
sons 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.
Recently, in response to a rise in metal/non-
metal fatal accidents, the Assistant Secretary of Labor
for Mine Safety and Health opined that “recent fatalities
and other accidents [in metal/ non-metal] suggest min-
ers would benefit from rigorous work place examina-
tions conducted by experienced and trained examiners.”
It is certainly the case that thorough work place exami-
nations, conducted by competent examiners, are vital to
work place safety.
Recognizing the lack of specificity in the current
metal/non-metal work place examination regulation,
MSHA unilaterally chose to invoke an administrative
fix to this important issue by announcing Program Poli-
cy Letter (“PPL”) No. P15-IV-01 to the regulated com-
munity on July 22, 2015.
During a stakeholder‟s meeting with concerned
operators that same afternoon, MSHA officials assured
industry attendees the PPL would not create a change in
the workplace examination regulation. MSHA‟s offi-
cials were true to their word – the written language of (Continued on page 2)
Bureau of Mine Safety August 2015 Newsletter 2
the work place examination regulation has not changed.
What MSHA officials did not discuss during the meeting
was the profound impact the PPL will have on the way
MSHA inspectors interpret the current work place exami-
nation regulation through the lens of the new PPL.
In spite of MSHA‟s best effort to put a positive
spin on the future impact of the PPL, a close reading of
the document brings to mind the age old idiom that “to
be forewarned is to be forearmed.” MSHA‟s decision to
avoid notice and comment rule making, thereby keeping
the regulated community out of the equation, is sure to
create confusion in the months ahead as MSHA inspec-
tors span out across the United States to explain their
versions of the PPL‟s mandate. A comprehensive analy-
sis of the PPLs impact cannot be accomplished in the
space allotted for this newsletter. However, a short dis-
cussion of key points in the PPL, listed below, will hope-
fully assist metal/non-metal operators in navigating the
rough waters ahead.
1. The examiner should be able to recognize “hazards”
… that are known by the operator to be present in the
work area; or predictable to someone familiar with
the mining industry.
The current language in the work place examina-
tion regulation requires examiners to identify conditions
which may adversely affect safety or health, a phrase
which is not defined in the Mine Act or the regulations.
MSHA‟s new PPL adds to the examiner‟s responsibility
by requiring identification of hazards in the work place.
And, you guessed it; the term hazard is likewise not de-
fined in MSHA regulations or the Mine Act. One thing
is certain; the terms are extremely subjective and open to
multiple interpretations by MSHA inspectors. The addi-
(Continued from page 1) tional responsibility of examiners to identify yet another
“undefined” term will vastly expand MSHA‟s current
practice of citing operators for alleged inadequate work
place examinations based on the inspector‟s subjective
determination of a hazard, or something which may ad-
versely affect safety or health.
In light of MSHA‟s new PPL, operators would
be wise to conduct additional training for work place
examiners. In this vein, it is crucial that an emphasis
be placed on reviewing and understanding the oper-
ation’s MSHA compliance history, MSHA’s top-
twenty list of citations issued, and MSHA’s Rules to
Live By. These categories often provide a road map for
what the MSHA inspector considers a hazard, or a con-
dition which may adversely affect safety or health at
your operation.
Finally, all work place examiners should be
trained, and become familiar with, the importance of the
“reasonably prudent person test” as it relates to con-
ducting work place examinations. Properly document-
ing the examiner‟s subjective opinion relating to a par-
ticular condition could be the difference between suc-
cess and failure in challenging an inadequate work
place examination citation or order, or a proposed civil
penalty against the agent of the operator under Section
110 of the Mine Act.
2. A best practice is for a foreman or other supervisor
to conduct the examination; an experienced non su-
pervisory miner may also be competent.
MSHA‟s best practice language in the PPL is
contrary to their Program Policy Manual, and does not
legally require operators to use a foreman or supervisor
to conduct work place examinations. As stated above, (Continued on page 3)
October 2015 Newsletter
Bureau of Mine Safety August 2015 Newsletter 3
§§56/57.18002(a) requires a competent person designat-
ed by the operator to conduct work place examinations.
§§56/57.2 defines the competent person as a person
having abilities and experience that fully qualify him to
perform the duty to which he is assigned. MSHA sug-
gests as much in the language of the new PPL.
This begs a simple question: Why is MSHA en-
couraging operators to use foreman and supervisors to
conduct work place examinations? The answer can be
found in the definition of the term agent in Section 3(a)
of the Mine Act that states:
Section 3(a) of the Mine Act defines the term
“agent” as “…any person charged with the responsibil-
ity for the operation of all or part of a coal or other
mine or the supervision of the miners in a coal or other
mine.”
Section 3 (a) relates to MSHA‟s authority to ini-
tiate civil and criminal sanctions against agents pursuant
to Section 110 of the Mine Act. MSHA understands
that foreman and supervisors are agents of the operator,
and therefore vulnerable to the threat of personal re-
sponsibility under Section 110 of the Mine Act. Accord-
ingly, it is imperative they have the experience and the
ability to conduct the work place examination, and to
properly evaluate the experience and ability of those
they assign the task of conducting work place examina-
tions. It is a safe bet that MSHA will be closely scruti-
nizing all work place examiners in the months ahead. If
you are unsure of your experience or your ability to
conduct a particular work place examination it is best to
find someone else for the assignment.
Lastly, it is quite common for MSHA to issue
elevated enforcement actions for inadequate work place
examinations. Those same elevated enforcement actions
often spin off special investigations under Section 110
of the Mine Act. Going forward, it is critical that super-
visor and foreman conducting, or assigning, work place
examinations fully understand MSHA‟s authority and
limitations under Section 110, as well as the supervisor
and foreman‟s rights during a Section 110 investigation.
3. If a trained competent person fails to identify multi-
ple hazards or if multiple trained competent persons
fail to identify similar safety hazards, this may indi-
cate that task training as required under parts 46
and 48 was inadequate or did not occur. Evidence
of inadequate training may be a basis on which
MSHA may require training plan revisions under
Part 46 (30 C.F.R. Section 46.3(a) and (b)(3) or
(Continued from page 2)
October 2015 Newsletter
Part 48 30 C.F.R. Sections 48.3(c)(8)/48.23(c)(8))
Task training and training plan revisions related to
work place examinations.
Prior to MSHA‟s July 22, 2015, introduction of
the current PPL, the agency canceled an earlier version
of the document on July 9, 2015. The difference in the
(Continued on page 4)
Miners in New Mexico are indebted to our mine rescue teams and the companies that sponsor them. Team members train for countless hours to prepare for an emergency we all hope never comes. As State Mine Inspector I am very appreciative of the co-operation
that I have received when emergencies have arisen. It has been a prime example that “we are all in this to-
gether.” Please take the time to thank the mine rescue team members at your operation for the dedication
they have exhibited for the safety of us all. Terence Foreback, State Mine Inspector
Bureau of Mine Safety August 2015 Newsletter 4
October 2015 Newsletter
earlier version of the PPL involved MSHA‟s decision to
remove the mandatory language in the earlier version
and replace it with discretionary language.
MSHA‟S attempt to soften the PPL‟s language
should not be construed as punting on the task training
and plan revision requirements. To the contrary, it ap-
pears MSHA was simply trying to shore up its position
in any future legal argument that the PPL is a legislative
rule versus a general statement of agency policy. The
former, of course, would have required the PPL to pass
through notice and comment rulemaking under Title 1,
Section 101 of the Mine Act thereby allowing comment
by the mine operators.
During the run up to MSHA‟s enforcement of
the PPL, operators would be wise to assure hourly and
supervisory work place examiners are properly task
trained on the work place examination requirements
irrespective of whether the regulation requires task
training. You can bet MSHA inspectors, using the new
language in the PPL, will be issuing inadequate work
place examination citations and orders by comparing
their inspection findings with the findings in the work
place examination record. If they do not match, the
MSHA inspector will argue the examiner was not
properly trained to identify the hazards he discovered
during his inspection, and therefore not competent.
Likewise, given the new language in the PPL on task
training, it is very likely operators will begin to see
MSHA issuing enforcement actions for inadequate task
training based on the results of the MSHA inspection.
Finally, pre-enforcement awareness training can
be a valuable tool in leveling the playing field with
MSHA. Educating work place examiners, supervi-
sors, and company escorts on MSHA’s authority,
and limitations, is imperative in today’s regulatory
climate. It is also a great opportunity to train manage-
ment personnel on the importance of effective docu-
mentation during work place examinations and MSHA
inspections. Knowledge is power. A little education
and proper documentation of the facts during an inspec-
tion can be the difference between success and failure
in a challenge to MSHA enforcement actions.
4. It is a best practice also to include a description of
such conditions in the examination record to facili-
tate correction and to alert others at the mine of
conditions that may recur or in other ways affect
them.
(Continued from page 3) Subpart (b) of §§56/57.18002(b) states “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.” The regulation‟s language is silent on
what the record must include. MSHA „s Program Policy
Manual (Volume IV- Metal and NonMetal Mines, Sub-
part Q, Safety Programs) attempts to fill in the gaps stat-
ing the record must include (1) the date the examination
was made; (2) the examiner‟s name; and (3) the working
place examined.
A truncated version of the new PPL‟s language
requiring a description of conditions in the examination
record was present in predecessor PPL No. P14-IV-01.
The new PPL expands the language in PPL No. P14-IV-
01 suggesting a description of the conditions will facili-
tate correction and alert others at the mine of conditions
that may recur or in other ways affect them. Oddly
enough, subpart (a) of §§56/57.18002 contains language
directing exactly what the operator‟s responsibility is
when conditions are discovered during a work place ex-
amination - the operator must promptly initiate appropri-
ate action to correct such conditions. Certainly nothing
in §§56/57.18002(b) suggests that MSHA, when drafting
the work place examination regulation, expected the re-
cording requirements to facilitate correction or alarm oth-
ers of the conditions.
For those familiar with MSHA‟s lengthy track
record of issuing inadequate examination citations and
orders in underground coal, it is tempting to peak behind
MSHA‟s intentions in expanding the PPL‟s language in
this area. What we know for sure is MSHA inspectors
routinely seek copies of work place examination records
prior to inspections, and often use the findings in the rec-
ord to judge the competency of the examiner.
Just to be clear, I am not suggesting examiners
omit the recording of the conditions they find during
work place examinations. Obviously, conditions must be
recorded to facilitate correction. My point is experience
teaches us that over rambling descriptions and personal
opinions about the conditions, particularly by supervisors
and foreman, are often characterized by MSHA as admis-
sions of the inspector‟s gravity, negligence, or unwarrant-
able failure findings in an enforcement action. Supervi-
sors and foreman who routinely perform work place ex-
aminations must take this obligation seriously, and under-
stand that the primary goal of the work place examination
(Continued on page 5)
Bureau of Mine Safety August 2015 Newsletter 5
October 2015 Newsletter
is to find conditions that may adversely affect safety
or health, and promptly initiate corrective action. An
examiner‟s over editorializing of the conditions found
during work place examinations will likely have little
impact on improving health and safety.
During the July 22, 2015, stakeholders meet-
ing, MSHA officials announced the new PPL would
not be enforced until the agency conducts a nation-
wide explanation of its content. This time frame will
hopefully provide an opportunity for metal/non-metal
operators to try and understand the mandates in the
PPL, and how they will impact future work place ex-
aminations. My suspicion is there will be many more
questions asked than answered by MSHA during
their cross country explanation tour.
Robert Huston Beatty, Jr.
(Continued from page 4) Mining Safety Board News
The Mining Safety Board held a hearing regarding
the recent mining statute changes passed by the legisla-
ture. Specifically, the board reviewed the legislation (SB
146) and made revisions required in the New Mexico Ad-
ministrative Code (NMAC) 19.6.2 Emergency Notifica-
tion. These changes were made at the Mining Safety
Board meeting held on September 9, 2015 that included a
regular session, and the hearing on the recommended
changes to the NMAC. The changes were identical to the
proposed changes that were posted on this website prior
to the hearing with one spelling correction. The changes
will be effective on September 29, 2015.
The Board also received information from the
Governor‟s Office relative to reappointments of members.
Currently there is an opening for a non-management
member. Anyone interested should contact SMI Terence
Foreback or Board Chair Randy Logsdon for information.
We are sad to announce that the longest serving
member of the MSB is retiring from United Nuclear Corp
and moving away from NM. The Board will greatly miss
Larry Bush‟s experience on the Board, his widespread
mining knowledge and his advice on technical matters.
Board Chair Randy Logsdon presented a certificate of
appreciation from Governor Susana Martinez at the Sep-
tember 9th meeting.
Our next MSB meeting will be held in Belen, NM
on January 15, 2016 as follows:
Belen City Hall
100 S. Main St.
9 AM
Lunch will be provided
A tour of New Mexico Travertine will follow the
meeting
• Store chemicals properly in tightly closed containers.
• Read labels and MSDSs for the fire hazards related to
the chemicals you use.
• Keep flammable and combustible materials away from
ignition sources.
• Keep incompatible chemicals away from each other.
• Check containers regularly for damage or leaks.
• Clean flammable liquid spills right away, and dispose
of liquids and cleanup materials properly.
• Make sure cords and plugs are in good condition be-
fore using electrical equipment.
• Don’t overload electrical circuits.
• Keep hot equipment away from combustible materials.
• Shut down electrical equipment that smokes or sparks.
• Obey smoking rules and “No Smoking” signs.
• Extinguish cigarettes and matches completely in desig-
nated containers.
• Handle compressed gas cylinders carefully and keep
them away from heat.
• Keep your work area free of trash, combustible scrap
materials, and other debris.
• Place oily rags in metal containers with lids.
• Keep machines free of dust and grease.
• Report fire hazards you can’t correct yourself.