presented to vtca safety seminar december 1-2, 2015 by ... · presented to vtca safety seminar...
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Presented to VTCA Safety Seminar
December 1-2, 2015 by
Dave Hardy and Chris Pence
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� Metal/Non-Metal had 29 fatalities in 2014
� 15 so far this year
� Quarter of a million miners work in this
industry
� 1972 – 234 fatalities
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THE WORKPLACE
EXAM IS
POWERFUL
STUFF!
� Legal Standpoint
�Safety Standpoint
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Answers the most important
question in the law:
� What did he know?
� When did he know it?
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Company management
OR
MSHA and/or the State
OR
Worst of all, the family of an accident
victim
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� 56.18002 – 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.
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(b) A record that such examinations were
conducted shall be kept by the operator
for one year, and shall be available for
review by MSHA.
(c) Conditions that may present an
imminent danger which are noted shall be
brought to the immediate attention of the
operator who shall withdraw all persons
from the affected area until danger is
corrected.
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� Competent Person?
� Working Place?
� Scope of the Exam?
� Paperwork Needed?
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� FMC Wyoming (1989) – Person must be
capable of recognizing the hazards in the
work area. The hazard was “asbestos” and
the examiner was clueless.
� W.S. Frey Company (1994) – Experienced
hourly kiln burners (not supervisors) were
competent to do the exams.
� July 22, 2015 – MSHA Program Policy
Letter - A poor or inadequate exam may
indicate a lack of task training. Must task
train on the subject of exams.
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Key: What is a “working place”?
� Michael Vira (2008)
◦ Examined the pit and work area around 4:30
a.m.
◦ Gave dozer operator instructions on where
to work around 6:00 a.m. and again at 11:30
a.m.
◦ The operator went to top of ridge and hit a
gas line.
◦ The top of the ridge was not an area where
the miner was expected to work or travel
Takeaway: Communicate with your employees
about work area
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“Working place” includes “any place
in or about where work is being
performed.” This includes work to
be performed on an “infrequent
basis.”
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� Sunbelt Rentals (2013) – There is no adequacy
requirement in the regulation. It only requires
the performance of the exam.
� Lopke Quarries, Inc. (2000)
� FMC Wyoming Corp. (1988)
� MSHA PPL – 7/22/15◦ A poor exam (inadequate) may indicate that the
examiner is improperly task trained.
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Decided by ALJ McCarthy on summary
decision
� Facts:◦ Roanoke Cement operated a pre-heat tower with
six vertically connected vessels or cyclones
◦ LVR performed annual tower maintenance and
contracted with Sunbelt to erect scaffolding
within the tower
◦ On 1/8/13 Sunbelt was erecting scaffolding at
the sixth level of the tower
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◦ At the start of the shift, the Sunbelt supervisor
examined the area where his crew would be
working and visually inspected the interior area
of the tower above the sixth level
◦ He did not take the stairs to the seventh floor
because his employees were not working there
◦ He could look up and see the seventh floor
◦ He recorded the exam on a Hazard Assessment
Form
◦ Later in the shift, a Sunbelt employee was
struck by an object falling from above
◦ The supervisor told the inspector he did not go
to the seventh floor
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Citation issued for an inadequate exam
� Court ruling:◦ The exam was done
◦ The supervisor was competent
◦ A record was kept
◦ 56.18002 does not have an adequacy requirement
◦ MSHA offered no evidence of incompetence
◦ The regulation does not say “adequate”
Argued on appeal in June 2015
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� Record must include:◦ Date exam made
◦ Examiner’s name
◦ Working places examined
� Program Policy Manual, Vol. IV, page 5◦ Exam records may be on documents already used
◦ Such as:
� Computers
� Production sheets
� Logs
� Charts
� Time Cards
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� MSHA may use the 7/24/15 PPL to expand the requirements
� The Sunbelt case may clarify the issue
� Make the exam your best friend, not your worst enemy
� You and your employees must have clear communication on the scope of the “Working Place”
� The examiner must be “Competent”
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Presented to VTCA Safety Seminar
December 1-2, 2015 by
Dave Hardy and Chris Pence