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Questions persist on new mining safety rule

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Miner

Unanswered questions still surround the U.S. Mine Safety and Health Administration’s new rule on workplace safety examinations for mines, including its uncertain future under President Donald Trump.

MSHA’s final rule for examination of working places in metal and nonmetal mines, which was published in the Federal Register on Monday, is set to take effect May 23.

A primary concern surrounding this and other emerging regulations is the impact the new presidential administration might have on their progress. In one of his first official acts, President Trump stayed all new and pending federal regulations to give incoming secretaries time to review them.

Travis Vance, an attorney in the Charlotte, North Carolina, office of Fisher & Phillips L.L.P., said it is not clear whether the workplace examination rule might fall under a health and safety exemption to the stay, but opponents of the rule could use the changing administration as an opportunity to try to halt the rule.

“There is a provision that would allow certain rules to go forward if they have the benefit of affecting safety and health of individuals,” said Jason Nutzman, a partner at Dinsmore & Shohl L.L.P. in Charleston, West Virginia. “MSHA might make a pretty strong argument that this rule just does that. The industry now, with the change in administration, will be in a wait-and-see approach to see what happens. There is plenty of time for the Trump administration to pull it back, but it may not be high on their radar, so it may slip through the cracks.”

MSHA’s new rule builds on existing mine safety regulations by addressing the timing of workplace safety examinations and strengthening notification requirements. The rule also requires a record of the examination to include locations that were examined, which adverse conditions were found and the date of the corrective action.

The final rule includes five specific requirements, including conducting workplace examinations prior to miners beginning work, notifying miners of conditions that could adversely affect their safety or health, initiating corrective action promptly, properly recording the examination and making the examination record available to federal and miner’s representatives upon request.

“It’s not a big change for the industry, but the major issue for the regulated community was whether the change was actually necessary in the first place,” Mr. Nutzman said. “The rule adds a couple of requirements to metal and nonmetal operations, but largely the workplace examinations that were previously conducted will take place in much the same manner with a couple of caveats.”

Currently, safety examinations must occur sometime during a shift, which could mean at the end of a shift when workers have already spent hours exposed to an undetected hazard. The new rule specifies that examinations must occur before work begins in an area, but that requirement prompts questions such as how mines that operate multiple or overlapping shifts will schedule examinations.

When hazards are found, mine operators will now be required to notify miners working in the affected areas, which may create additional questions about whether miners working in areas near or adjacent to an affected area or those who traverse affected areas during their work must be notified, Mr. Vance said.

The new rule also requires the examiner to be named on the examination report. This represents a change from the proposed rule, which would have required examiners to sign workplace examination reports and raised concerns about the potential for them to be held civilly or criminally liable for injuries. The final rule also eliminated a requirement to provide a description of corrective actions, a provision that was thought by many commenters to create an overwhelming recordkeeping burden.

Mine operators should be diligent about communication among examiners about adverse conditions that might persist beyond shifts to make sure the appropriate people are aware of corrective actions that are in process and can ensure they are completed and properly recorded, Mr. Nutzman said.

Bruce Watzman, senior vice president for health and safety at Washington-based National Mining Association, said the association is pleased with the changes MSHA made to its proposed rule in response to industry concerns. MSHA received 74 comments in response to the proposed rule, which was released in June 2016.

One remaining concern is the potential for differing interpretations of the rule at the field level vs. at the headquarters level, especially with respect to questions of examination timing, he said. Mr. Watzman said he expects some remaining questions will be cleared up via stakeholder meetings with MSHA before the rule goes into effect.

Compliance with the rule should not be especially complicated, experts said. Re-training employees who will perform the safety examinations is likely to be the major action mine operators must take, in addition to ensuring hazards are promptly rectified, miners are kept aware of hazards and proper reporting takes place, Mr. Vance said.

In addition to training, mine operators would be wise to review their existing workplace examination forms and update them to comply with the new rule as many mine operations use forms created decades ago, Mr. Nutzman said.

“The forms are going to have to be filled out correctly to show they are taking it seriously and doing everything they need to do report hazards and notify miners,” Mr. Nutzman said.