Presented to VTCA Safety Seminar

December 1-2, 2015 by

Dave Hardy and Chris Pence

� Metal/Non-Metal had 29 fatalities in 2014

� 15 so far this year

� Quarter of a million miners work in this

industry

� 1972 – 234 fatalities

THE WORKPLACE

EXAM IS

POWERFUL

STUFF!

� Legal Standpoint

�Safety Standpoint

Answers the most important

question in the law:

� What did he know?

� When did he know it?

Company management

OR

MSHA and/or the State

OR

Worst of all, the family of an accident

victim

� 56.18002 – 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 one year, and shall be available for

review by MSHA.

(c) Conditions that may present an

imminent danger which are noted shall be

brought to the immediate attention of the

operator who shall withdraw all persons

from the affected area until danger is

corrected.

� Competent Person?

� Working Place?

� Scope of the Exam?

� Paperwork Needed?

� FMC Wyoming (1989) – Person must be

capable of recognizing the hazards in the

work area. The hazard was “asbestos” and

the examiner was clueless.

� W.S. Frey Company (1994) – Experienced

hourly kiln burners (not supervisors) were

competent to do the exams.

� July 22, 2015 – MSHA Program Policy

Letter - A poor or inadequate exam may

indicate a lack of task training. Must task

train on the subject of exams.

Key: What is a “working place”?

� Michael Vira (2008)

◦ Examined the pit and work area around 4:30

a.m.

◦ Gave dozer operator instructions on where

to work around 6:00 a.m. and again at 11:30

a.m.

◦ The operator went to top of ridge and hit a

gas line.

◦ The top of the ridge was not an area where

the miner was expected to work or travel

Takeaway: Communicate with your employees

about work area

“Working place” includes “any place

in or about where work is being

performed.” This includes work to

be performed on an “infrequent

basis.”

� Sunbelt Rentals (2013) – There is no adequacy

requirement in the regulation. It only requires

the performance of the exam.

� Lopke Quarries, Inc. (2000)

� FMC Wyoming Corp. (1988)

� MSHA PPL – 7/22/15◦ A poor exam (inadequate) may indicate that the

examiner is improperly task trained.

Decided by ALJ McCarthy on summary

decision

� Facts:◦ Roanoke Cement operated a pre-heat tower with

six vertically connected vessels or cyclones

◦ LVR performed annual tower maintenance and

contracted with Sunbelt to erect scaffolding

within the tower

◦ On 1/8/13 Sunbelt was erecting scaffolding at

the sixth level of the tower

◦ At the start of the shift, the Sunbelt supervisor

examined the area where his crew would be

working and visually inspected the interior area

of the tower above the sixth level

◦ He did not take the stairs to the seventh floor

because his employees were not working there

◦ He could look up and see the seventh floor

◦ He recorded the exam on a Hazard Assessment

Form

◦ Later in the shift, a Sunbelt employee was

struck by an object falling from above

◦ The supervisor told the inspector he did not go

to the seventh floor

Citation issued for an inadequate exam

� Court ruling:◦ The exam was done

◦ The supervisor was competent

◦ A record was kept

◦ 56.18002 does not have an adequacy requirement

◦ MSHA offered no evidence of incompetence

◦ The regulation does not say “adequate”

Argued on appeal in June 2015

� Record must include:◦ Date exam made

◦ Examiner’s name

◦ Working places examined

� Program Policy Manual, Vol. IV, page 5◦ Exam records may be on documents already used

◦ Such as:

� Computers

� Production sheets

� Logs

� Charts

� Time Cards

� MSHA may use the 7/24/15 PPL to expand the requirements

� The Sunbelt case may clarify the issue

� Make the exam your best friend, not your worst enemy

� You and your employees must have clear communication on the scope of the “Working Place”

� The examiner must be “Competent”

Presented to VTCA Safety Seminar

December 1-2, 2015 by

Dave Hardy and Chris Pence