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 robert.beatty@dinsmore.com 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.