The Long and Winding Road to the New Workplace Safety Exam Rule for M/NM
You would have to be living under a rock to not have heard about the changes instituted to the workplace exam rule 30 C.F.R. § 56.18002/57.18002. The new rule states:
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 a period of one year, and shall be made available for review by the Secretary or his authorized representative.
(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons 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.
The concern with the modified regulation to both large and small mines is MSHA’s apparently expanding (and ambiguous) interpretation of what constitutes a “working place” and how to define exactly when work will be done in such an area. The agency made multiple unsuccessful attempts to expand the definition through litigation. During this process MSHA sought to define a working place as not only any place an employee physically performed work or other duties associated with work but also ANY place throughout the entire mine site where there might be a reasonable expectation of work. This latter interpretation might not have succeeded in litigation but you can bet MSHA inspections will employ this subject approach when enforcing the rules.
That means that any place a miner may work or travel throughout a shift, including stairways, elevators, and seemingly off the path places of a mine that an employee may access but not actually perform work is open to scrutiny. So far it remains unclear as to how this may affect your bottom line in training and manpower costs, and the onus could always shift now that a new director for the agency is in place.
MSHA has stayed the rule again, this time until June 2, 2018, so the agency can address operators’ apprehensions on the compliance component of the rule. The key as always is holding MSHA to a consistent interpretation of how it intends to enforce the rule. A one-size fits all enforcement approach may simply create the opposite result placing heavy burdens on operators and potentially costly fines. MSHA is holding informational compliance assistance visits to M/NM mines. You might consider reaching out to your local MSHA’s field office and request one of these visits if you are looking to enhance your understanding of the rule’s requirements. Our experienced MSHA attorneys also conduct compliance audits and will discuss any concerns you may have regarding the rule and how MSHA intends to enforce it.
New Year Brings MSHA and OSHA Increase in Penalties
The old saying “only two things in life are for certain – death and taxes” has a couple of new additions. With the passing of each new year, regardless of which political party holds the most sway in Washington D.C. you can bet MSHA and MSHA fines will keep creeping higher.
On January 2, 2018, the Department of Labor, issued its final rule to adjust for inflation (pursuant to the Federal Civil Penalties Inflation Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Improvement Act of 2015, if you need to know the regulatory trigger) the civil monetary penalties. Thus, any MSHA or OSHA citations or orders issued after this date will be assessed at the adjusted level. All citations and orders issued prior to this date and not yet assessed will remain at last year’s monetary levels. Ultimately, the inflation adjustment is the government’s method of keeping the deterrence mechanism associated with penalties intact and encourage regulated employers to continue to strive to ensure work places are safe.
NEW MSHA PENALTIES
MSHA penalties decreased slightly in the last couple of years in some areas (maximum penalties), but that did not equate to a trend as they are on the rise again. As you can see from the Penalty Conversion Table below, penalties are up on average approximately $20 per point, with the minimum fine (for 60 points or below) moving from $114 to $132 and he maximum penalty (140 points or more) at $70,834. MSHA calculates points based on a mine’s s size, history, negligence, and gravity and converts these points to a dollar amount.
Other penalties of note:
The Minimum Penalty for any order issued under 104(d)(1) of the Mine Act = $2,314.
Minimum penalty for any order issued under 104(d)(2) of the Mine Act = $4,627
Penalty for failure to provide timely notification under 103(j) (accident notification) of the Mine Act = $5,785
Flagrant violations under 110(b)(2) of the Mine Act = $259,725
NEW OSHA PENALTIES
Not to be outdone, OSHA also increased penalties across the regulatory spectrum.
|2017 Penalties||2018 Penalties|
|Other than Serious violations:||$12,675||$12,934|
|Failure to abate (per day):||$12,675||$12,934|
Penalties are on the rise and thousands of OSHA inspections are calendared for the 2108 cycle. MSHA will continues its regime of two inspections a year for metal non-metal (non-intermittent) mines and four inspections a year for coal mines. Thus, you as a business owner or mine operator need to be vigilant about safety because you never know (especially with MSHA) when an inspector will come knocking.
If you feel vulnerable in any area of workplace safety, it is important to consult with an experienced OSHA/MSHA attorney to ensure you are in regulatory compliance and ready to endure an inspection cycle. This is especially true under the current wave of unpredictability within the agencies and trying to flip a coin as to the direction they will take – heavy handed enforcement or, as promised, a more compliance-focused approach.
MSHA Table XIV—Penalty Conversion Table
|60 or fewer||$132|
|140 or more||70,834|