Acing the Test – Metal/Non-Metal Examinations under the Mine Act Ryan D. Seelke 35th Annual South Central Joint Mine Health & Safety Conference

Agenda A. The Big Four: B. Scenarios Workplace Examinations (56/57.18002) Examinations of Mobile Equipment (56/57.14100) Examinations of Ground Conditions (56/57.3401) Post-Blast Examinations (56/57.6306(g)) B. Scenarios

56/57.18002: Workplace Examinations

Workplace Examinations – The Current Law Until recently, the language of the “Examination of Working Places” standard has not changed since it was promulgated. It provides as follows (56/57.18002): (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. Competent Person: A person having abilities and experience that fully qualify him to perform the duty to which he is assigned. Working Place: Any place in or about a mine where work is being performed. Must be an “adequate” examination. Sunbelt Rentals, Inc. Identify conditions which may adversely affect safety and health that a reasonably prudent competent examiner would recognize.

Workplace Examinations – The Current Law (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. Record: To qualify as a record, the following elements must be present: Date: The date the examination was made; Name: The name of the competent person who conducted the examination; and Working Place: The identity of the working place examined.

Workplace Examinations – The Current Law (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.

Workplace Examinations – The Current Law What is the retention time for workplace exam slips? Pursuant to § 56/57.18002(b), operators must retain workplace examination records for the preceding 12 months. MSHA is no longer accepting an alternative to the 12-month retention period. What is the retention time for the “conditions” portion of the workplace exam slips? There is no legal authority requiring operators to describe the conditions found during a workplace examination. As a result, there is no required retention period for the bottom portion of the workplace examination. However, it would be “prudent” to retain the bottom portion of the form for 12 months. There are varying reasons to do this. Never give to MSHA, however

Workplace Examinations – The Current Law Warning You will be considered an “agent of the operator” during the window of time that you conduct workplace examinations. Nelson Quarries. Negligence imputed unto company operator; 104(d) unwarrantable failure ramifications; and Personal liability under Section 110.

Workplace Examinations – Current Requirements Required: “Adequate” exam conducted in each working area by a competent person at least once each shift Record detailing: Name of competent person; Date of examination; and Area examined Notification of imminent danger Retain record for 12 months Not Required: Specific form List of conditions found* Supervisor as the examiner Signature of supervisor Keep more than 12 months *Required under new proposed rule

Workplace examinations – Final Rule Changes Current Legal requirement(s): When conducted: At least once per shift (anytime during the shift). Competent person: A person having abilities and experience that fully qualify him to perform the duty to which he is assigned. 56/57.2 Notification: None, unless imminent danger. Record keeping: Name of examiner; Date of examination; and Work area examined. New Rule: When conducted: Before work begins in an area. Competent person: Not changing definition. However, initially proposed minimum level of experience and training. Notification: Must promptly notify miners in affected area. Record keeping: Name of Examiner; Date of Examination; Location of all areas examined; Description of any adverse conditions found; Date of corrective actions taken; and Complete prior to end of shift.

56/57.14100: Examining Self Propelled Mobile Equipment

Pre-Op Examination for Mobile Equipment – The Law § 56/57.14100: Safety Defect; Examination, Correction and Records: (a) Self-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift…(d) Defects on self-propelled mobile equipment affecting safety, which are not corrected immediately, shall be reported to, and recorded by, the miner operator. The records shall be kept at the mine or nearest mine office from the date the defects are recorded, until the defects are corrected… If no deficiencies are found, then no record is required. However, if you make a record MSHA is not legally entitled to it. If deficiencies are found, then the operator must retain the record until the issue is corrected.

56/57.3401: Examination of Ground Conditions

Examination of Ground Conditions 56/57.3401 Persons experienced in examining and testing for loose ground shall be designated by the operator. Such persons must examine and, where applicable, test ground conditions in areas where work is to be performed, prior to work commensing, after blasting and as ground conditions warrant during the shift. Examinations MUST be done. Testing is CONDITIONAL on ground conditions. Highwalls and banks adjoining travelways shall be examined weekly or as often as ground conditions warrant.

56/57.6306(g): Post-Blast Examinations

Post-Blast Examinations – The Law 30 C.F.R. § 56/57.6306(g): Work shall not be resumed in the blast area until a post-blast examination addressing potential blast-related hazards has been conducted by a person with the ability and experience to perform the examination. Blast Area: The area in which concussion (shock wave), flying material, or gases from an explosion may cause injury to persons. Consider following factors: Geology; blast pattern; burden, depth, diameter, and angle of holes; blasting experience of mine; delay system, powder factor, and pounds per delay; type and amount of explosive material and stemming. Blast Related Hazards: Loose ground; misfires; unspent rounds; gasses, etc. Examiner: DOES NOT HAVE TO BE A SUPERVISOR. I recommend someone from the powder or scaling crew . Always carry a gas detector for a sufficient examination (if underground). Determine “Blast Area” before shot(s) go off.

Falsifying Examination Records Section 110(f) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than five years, or both. Inspector review of examination books is a very hot topic with MSHA today. Supervisors/Agents must be aware of this and take extreme caution with work place examinations and recordings. This is true for any and all falsifications: i.e. workplace examinations, task training, etc.

Scenarios Putting lessons into practice

Scenario – James on the Loose James, a member of a two man DBS crew picks up his work assignment assigning him and his partner to scale three pillars in the 118 drift. Three shots were pulled in the area during the prior shift and James and his partner were assigned to hand scale the first three pillars in the drift. Upon arriving at the 118 drift James immediately begins conducting his workplace examination. Part of his examination focused on examining the loose ground conditions on the pillars that he was tasked with removing. Approximately two (2) hours into the shift the DBS foreman traveled to the 118 drift to check on the scalers. James spoke with the foreman and said that everything was going well and that he expected to get all three pillars scaled by shift end. The foreman then left the area. James was correct in his assumption because at the end of his shift all pillars were adequately scaled and no additional hazardous ground conditions existed. James documented his workplace examination and put his name, area examined, and date of examination. He did not, however, list the hazardous loose conditions because they were expected and they were taken down prior to the end of shift. He then turned his WPE record into the mine office and went home at shift change.

Scenario 1 – James on the Loose Did James violate 57.18002 under the current standard? No. James conducted a visual examination during the shift; James documented the examination by including the following: (1) Name of competent person; (2) area examined; and (3) date of examination. Did James violate 57.18002 under the new rule? Yes. Correctly conducted the examination prior to work beginning; Failed to document hazardous ground conditions; Failed to warn or notify supervisor of hazardous ground conditions; and Failed to document date of corrective action.

Scenario 2 – Rick and the Highwall Rick, a mine superintendent for the Wildflower Quarry gets to work at 6:00am. Prior to work commencing, Rick traveled to the pit and conducted a ground examination of the North highwall which is 250 feet high with three (3) catch benches. Rick noticed what appeared to be loose/unconsolidated material on the catch benches but determined the material was sloped to the angle of repose. He also noticed what appeared to be back break and vertical cracking along the top of the middle catch bench. He did not test the soundness of the back break because it had existed like that for two (2) months with no problems. He also did not have a safe way to test the ground. Later, an excavator was operating near the toe of the highwall. MSHA arrived and issued a citation alleging a violation of 56.3200 (hazardous ground conditions) because the inspector determined the back break was in fact loose and hazardous. He also issued a citation under 56.3401 because Rick failed to test the ground.

Scenario 2 – Rick and the Highwall Did Rick violate 56/57.3401? He examined the condition (MSHA may argue it was inadequate); May be a violation for not testing: Testing is only required “if applicable.” However, in this case MSHA will almost certainly require testing because the excavator operator was arguably exposed to the questionable ground. What if testing is impossible? Make sure it is taken down somehow: scaling; blasting, etc.

Scenario 3 – Jim’s “examination” Jim is a utility ground man assigned to operate a bobcat cleaning up spillage between the primary and secondary crushers. At 9:00 am Jim conducted his workplace examination and noticed that several rollers on the belt line had fallen off and a 2 foot section of guarding was missing. As a result, he witnessed fist sized rocks bouncing off of the belt line and landing 4-6 feet away. He did not, however, think anything of it during his workplace examination because no one other than himself was exposed to the hazard. No hazards or corrective actions were noted or taken. The record, however, was dated, indicated the area examined and contained Jim’s name as the competent examiner. At 10:00am Jim saw an MSHA inspector walking his way. Jim was concerned that he would get a citation for failing to do an adequate exam so he noted on his workplace exam record that at 9:00am no hazards were found.

Scenario 3 – Jim’s “examination” Did Jim conduct an adequate examination under 56.18002(a)? No. There was a hazard that needed to be corrected and he failed to do so. It does not matter that only he was exposed. Did Jim violate the record keeping requirements under current 56.18002(b)? No. Under the current standard the only things that are required to be recorded are (1) the date; (2) work area examined; and (3) name of the competent examiner. These were met. Did Jim violate the Mine Act by revising the workplace exam to say no hazards were found at 9:00am? Yes. This was a false statement under Section 110(f). Potential $10,000 fine and jail time. Would there have been a violation if Jim wrote on the record that no hazardous conditions were observed at 8:30am? ????

Scenario 4 – Unfortunate Timing At 7:30 am James, a FEL operator, conducted his pre-operational examination on the Cat 988K that he was going to use that shift. During this examination James found the following: (1) malfunctioning park brake, (2) a bent access ladder, (3) and a crack in the windshield near the line of sight. James wrote the park break issue on his examination record but not the bent step or windshield crack. He then went to his supervisor to check on the availability of an alternative piece of equipment. While James was speaking to his supervisor a MSHA inspector showed up and asked to see James' pre-op exam record. James handed him the record. The inspector then asked where the FEL was located. James told him it was still in the parking area. The inspector issued a citation under 56.14100(c) because the FEL had safety defects and was not taken out of service. He also issued a citation for a violation of 56.14100(d) because the bent step and windshield crack were not documented.

Scenario 4 – Unfortunate Timing Was there a violation of 56.14100(c)? Yes. James should have immediately tagged the FEL out of service. MSHA considers equipment to be “in service” or “in use” if it is in turn key condition. Given that the FEL was still in the parking area and not placed in a designated area or tagged it was “in service.” Was there a violation of 56.14100(d) because the windshield crack was not documented? What about the bent ladder? Yes, safety defects must be noted and a record kept until the issue is fixed. The only time you do not have to make a record is when you find no defects. Ladder: Depends on which access. What if there had been a latent manufacturer defect that was previously unknown? No violation under 56.14100(b) or (c) because Courts say you must first be aware of the defect before you can be charged with failing to take a piece of equipment out of service.

Scenario 5 – Inexperienced James James eventually got an alternative FEL. Following a 10:30am blast, James was tasked with going into the area and start loading from the muck pile. Being the first one in the area he was charged with conducting the post- blast examination. Usually, the blaster is the one who conducts the post- blast exam, however, following the blast he had a heart attack and was taken to the hospital. James, who had no prior blasting background, was sent in the area. James quickly observed and roped off hazardous ground conditions. He also checked the condition of the muck pile and found it to be acceptable. An MSHA inspector arrived and immediately noticed that four (4) charges had not gone off. He immediately issued a 107(a) imminent danger and pulled James, a supervisor and an excavator operator from the area. He also issued a violation under 56.6306(g) for an inadequate post-blast examination.

Scenario 5 – Inexperienced James Was there a violation of 56.6306(g)? Probably. First, James had no prior knowledge of blasting activities, therefore, he arguably had no clue regarding what to look for to determine that a blast went off correctly. Whoever is assigned to conduct the examination must be competent to find ALL blast-related hazards. Also, the fact that a blast-related hazard was missed (i.e. the charged rounds) indicates that an adequate post blast examination was not completed.

THANK YOU Mine Safety Compliance & Consulting Ryan D. Seelke 573-578-8240 (Cell) rseelke@gmail.com