Pit & Quarry • April 2024 • MSHA & THE LAW

The Mine Safety & Health Administration (MSHA) has issued an increasing number of workplace examination citations over the last few years under the standard at 30 C.F.R. § 18002.

Many are designated as “significant and substantial” (S&S), and some are even issued as “high negligence.” MSHA is clearly emphasizing workplace exams as part of its enforcement program.

Typically, workplace exam citations are issued along with a citation citing a standard specific to a particular hazard. Here’s how that can unfold.

First, an inspector sees a violation in the field, such as a spill of material on a walkway. The inspector observes that there are footprints in the material.

Now, the inspector has both a violation to cite and evidence that someone was there. The inspector will likely issue this as an S&S violation of the housekeeping standard because of the spill with the footprints in it.

At some point during the inspection, the inspector will ask to see the workplace examination records for that area. If the inspector does not see anything recorded noting the material spill, an accompanying citation under the workplace exam standard will be issued. The citation may designate that violation as S&S based on the footprints. And now, the mine essentially has two citations because of the same condition.

MSHA will argue that these are not duplicative citations because one is for the housekeeping issue and the other is for not recording it on a workplace exam – or promptly taking corrective action to address the hazard. But they are essentially overlapping citations.

MSHA’s “Program Policy Manual” has long stated: “Although the presence of hazards covered by other standards may indicate a failure to comply with this standard, MSHA does not intend to cite §§ 56/57.18002 automatically when the Agency finds an imminent danger or a violation of another standard.”

Still, inspectors frequently allege workplace exam violations under these very circumstances. They also issue multiple workplace exam citations during the same inspection if they find these circumstances in more than one location of a mine.

Below are some things operators should consider to prevent citations from being issued. Ultimately, operators should consider what the workplace examination standard requires:

■ Ensure a competent person does the examination. A competent person is one who has the abilities and experience to perform the workplace exam

■ Create a record of each workplace exam, documenting the name of the competent person who did the exam, the date and location examined, and any adverse safety or health conditions found

■ Once the adverse conditions found are fully corrected, record the date of correction

If operators do not have one already, they will want to establish a procedure for conducting workplace exams, starting with identifying locations and how they will be nomenclated on the workplace exam form.

Sometimes, citations result from a simple misunderstanding on the operator’s part as to what constitutes a “working place.” MSHA defines this as “any place in or about a mine where work is being performed.”

Sometimes, a miner may not clearly state on the workplace exam record the location examined, making it appear that a particular place was not examined, or confusing the names of where a condition actually was.

Operators will also want to be diligent about recording the date a condition was corrected. Many citations are issued on the assumption that something was not timely corrected when, in fact, they were. The workplace exam record can be good evidence of this.

Consider, too, there are many conditions that will take more than one shift to fully correct. In such a case, barricades or barriers with tags identifying the hazard can be used to protect people from exposure to a hazard. It is also a best practice to create a record on the workplace exam form, or some associated documentation, that this interim measure was done.

Yet another good practice is to do refresher training on how to conduct and record a workplace exam.

With daily procedures like these, people can become less focused and may eventually skip steps – particularly in recording the exam. But even if an exam is done well, inspectors may have doubts if it is not reflected in the records.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.