The Mine Safety and Health Administration (MSHA) appears to be readying a new policy that could significantly expand and re-interpret mine operator responsibilities in conducting workplace examinations.

If adopted, the new PPL could change workplace exam practices dramatically and redefine what MSHA considers a violation. The PPL appears to limit who can perform an exam, even while expanding the number of places that must be examined and requiring task training on how to perform exams.

Here are key highlights of the PPL’s potential implications:

• The PPL adds that the competent person who conducts exams should be able to recognize known or predictable hazards. Particularly significant is a recommendation that, while “an experienced non-supervisory miner” could be competent, “[a] best practice is for a foreman or other supervisor to conduct the examination.”

• The PPL could be interpreted to require that mine operators conduct exams in more locations than before. It expands the definition of “working place,” to "include areas where work is performed on an infrequent basis, such as areas accessed primarily during periods of maintenance or clean-up. All such working places must be examined . . . at least once per shift.”

• The PPL adds that being “competent” and adequately performing an exam requires that the competent person has been task-trained in how to perform workplace exams. The new policy says that “[c]onducting a working place examination is a ‘new task’ for which the examiner must be trained’ under Parts 46 and 48.” This new task-training requirement adds workplace exams to Part 46-training plans as a subject to be covered in training.

Under the new PPL, MSHA might try to add a new form of violation: failure to task train the examiner. The PPL hints, “If a trained competent person fails to identify multiple safety hazards or if multiple trained competent persons fail to identify similar safety hazards, this may indicate that task training as required under parts 46 and 48 was inadequate or did not occur.”

Mine operators should review the draft PPL, consider its effect on current practices and policies if this policy letter is adopted, and watch for further analysis and guidance following the expected announcement by MSHA.

Source: Jackson Lewis PC –Authors:  Avi Meyerstein and Ross J. Watzman