United States: MSHA's Proposed New Rules On Workplace Examinations May Increase Individual 110(c) "Agent" Exposure

The Mine Safety and Health Administration ("MSHA") recently proposed new rules on workplace examinations that may significantly impact mine operators and employers. In recent years, MSHA has been far more willing to use Section 110(c) of the Mine Act – under which monetary penalties and criminal actions can be assessed against individuals - to prosecute matters against lower level employees, increasing the anxiety felt in the mining industry.

MSHA's proposed new rules on workplace examinations may be a vehicle for even more individual liability.

Many of MSHA's proposed changes have been met with questions and skepticism from the industry, causing MSHA to extend the comment period until September 30, 2016.  Mine operators and employers who have workers subject to the Mine Act should critically review the proposed rules and give consideration to the comment process.

Here's what's at stake.

Some of MSHA's Potential Changes.

On June 8, 2016, MSHA published a proposed rule concerning the Examinations of Working Places in Metal and Nonmetal (MNM) mines.  MSHA's stated purpose for the proposal was to "ensure that mine operators identify and correct conditions that may adversely affect miners' safety or health."  After conducting public hearings on the proposed rule, MSHA received many questions and comments. 

The following is a list of the changes that may create the questions for employers in the mining industry:

  • An examination of each working place at least once each shift, before work begins in an area, for conditions that may adversely affect the safety or health of miners.
  • New requirements addressing the contents of the examination record including the continued requirement that a record of the working place examination be made.
  • A requirement that the competent person conducting the examination sign and date the record before the end of the shift for which the examination was made.
  • Requiring the signed record to include the locations examined and a description of any adverse conditions found.
  • Requiring the record to include, where any adverse condition is found: (1) a description of the action taken to correct the adverse condition; (2) the date that the corrective action was taken, and; (3) the name of the person who made the record of the corrective action and the date the corrective action was taken. 

What is "prompt" and sufficient notification under the proposed rule?

Under the proposed rule, MSHA seeks to require metal and nonmetal mine operators to "promptly notify" miners in any affected areas of any conditions found that may adversely affect safety or health and promptly initiate appropriate action to correct such conditions.  Understandably, during the public hearing phase, comments and testimony illuminated the need for MSHA to clarify its requirement as to what it means by "promptly notifying miners."  MSHA has attempted to clarify its position that "promptly notifying miners" is satisfied by "any notification to the miners that alerts them to adverse conditions in their working place so that they can take necessary precautions to avoid an accident or injury before they begin work in that area."

MSHA further muddied the waters by going on to opine that while the "notification could take any form that is effective to notify affected miners of the particular condition," including verbal notification, prominent warning signage, other written notification, etc., and that "verbal notification or descriptive warning signage would be necessary in most cases to ensure that all affected miners received actual notification of the specific condition in question."  Additionally, to be "prompt," the notification must occur before the miners are potentially exposed to the condition; e.g., before miners begin work in the affected areas, or as soon as possible after work begins if the condition is discovered while they are working in an area.  This requirement could prove to be subjective.  In MSHA's opinion, an example of compliance is notification that occurs when miners are given work-shift assignments (i.e., pre-shift).

It is important to also point out, that like the existing rule, the proposed rule requires the examination be made by a "competent person" designated by the mine operator.  MSHA emphasized that the competent person should be able to recognize any adverse conditions that are expected or known to occur in a specific work area or that are predictable to someone familiar with the mining industry. Again, this is another area that potentially leave employers open to being second guessed by MSHA. Nonetheless, MSHA has stated in various PPLs that while a "best practice" is to have a foreman or other supervisor conduct the examination, an experienced non-supervisory person may also be designated as a "competent person." As noted above, this is a potential area where MSHA could seek the expansion of 110(c) actions.  MSHA has requested comments on the requirements of "competent persons" under the Mine Act.

What is the extent of the workplace examination?

Regarding the extent of the proposed required examination, concern was expressed that the proposed rule would require mine operators and employers to conduct examinations of the entire mine before the start of each shift.  Again, MSHA put a haze over what might have been clear guidance.  Specifically, MSHA responded that it is not its intent to require mine operators to examine the entire mine before work begins, but instead, an examination of "each working place" . . . "before work begins in an area."  The proposed rule, like the existing rule, requires examinations only in those areas where work will be performed.

However, under the current and proposed rules, a "working place" is not the entire mine unless miners will be working in all areas of the mine during that particular shift.  Accordingly, the fundamental question in making this decision is determining when and where miners might be working during any particular shift. As one could imagine, scenarios could exist where mine operators are forced to examine the entire mine due to the nature of their operations and activities on any given shift.

The proposed rule – in MSHA's opinion – would not change the existing definition of "working place" since the existing rules define a "working place" as any place in or about a mine where work is being performed.  A "working place" applies to all locations at a mine where miners work in the extraction or milling processes.  MSHA has also clarified, that consistent with the existing definition of "working place," this includes roads traveled to and from a work area.  MSHA further explained that a working place would not include roads not directly involved in the mining process, administrative office buildings, parking lots, lunchrooms, toilet facilities or inactive storage areas. Unless required by other standards, mine operators would only be required to examine isolated, abandoned, or idle areas of mines or mills when miners have to perform work in these areas during the shift.

What is the significance of the signature requirement?

The proposed rules also require the "competent person" – who may be a non-supervisory employee – conducting the examination sign and date the record of examination before the end of the shift. In light of the increase in 110(c) actions by MSHA, many in the mining industry expressed concern that the proposed requirement to sign the record will increase the potential for "agent" liability under Section 110(c).  In response to some of these concerns, MSHA has stated that "agent" liability under section 110(c) relates to the "substantive duties and delegated responsibilities of the person in question." MSHA also claims the single act of printing one's initials or name, as opposed to signing one's name, adds no more and no less to the substantive duties and qualifications of the person who conducts the examination.  Nonetheless, many remain concerned that the signature requirement will actually discourage miners from conducting working place examinations and would actually have a negative impact on the quality of the examination.  As a result, MSHA now seeks comments on an alternative approach of simply requiring that the name of the competent person, rather than the signature, be included in the examination record.

MSHA's proposed new rule may significantly impact many employers and their individual employees. We will keep you updated on this development.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Travis W. Vance
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Ogletree, Deakins, Nash, Smoak & Stewart
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions