A year of twists and turns with MSHA

We are close to wrapping up what has been another eventful year under the Mine Safety & Health Administration (MSHA), with surprisingly more rulemaking and enforcement policymaking activity than one might expect under the current administration.

Granted, some of these developments have been in response to court decisions, but mine operators nevertheless are preparing for more regulatory requirements than one would have predicted on election night 2016.

In this article, we review the key developments of 2019 and attempt to make a few predictions for 2020 – although, if the 2019 precedent holds true, there likely will be more unexpected shifts in direction to come.

Pivotal year for rulemaking

Without a doubt, the most immediately impactful MSHA development in 2019 was the rollback of the workplace examination standard from the 2018 revisions to the original 2017 form of the rule.

This change was the result of a June 2019 decision by the D.C. Circuit Court of Appeals holding that MSHA’s 2018 revision to the workplace examination rule does not pass muster under the Mine Act’s requirement that any changes to an existing safety standard must not diminish safety protections afforded by the rule.

In response to the D.C. Circuit’s decision, MSHA revoked the 2018 revisions, effective Sept. 30, and announced that it would provide for a 90-day period in which the agency would provide compliance information on the changes.

This put the workplace examination rule back in its original Obama administration form, requiring the exam to be completed before work begins in a working place (eliminating the “or as work is beginning” option) and requiring the record of the exam to include all adverse safety and health conditions found on the exam (not just those that were not corrected immediately).

What remains to be seen is whether industries’ currently pending challenge in the Eleventh Circuit Court of Appeals will be successful in requiring MSHA to revoke the 2017 rule, thus reverting back to the original workplace exam rule that had been in effect for decades.

Another critical rulemaking development has been MSHA’s first significant activity in reviewing possible options for revising its silica exposure standards. In August 2019, the agency issued a request for information, which may signal a possible agency interest in reliance on respiratory protection for compliance with a lower exposure limit. Time will tell what direction this takes.

MSHA also announced a comment period for a draft program policy letter that would revise its interpretation of the secondary escapeway standard with respect to mines in development or exploration. It likely was not a coincidence that this occurred close in time to the White House’s issuance of executive orders requiring agencies to be more transparent and obtain stakeholder input on regulatory guidance documents.

Also this year, the U.S. Supreme Court issued an important case for operator challenges of agency interpretations of regulations. In Kisor v. Wilkie. the court did not go as far as many had hoped it would in reining in agency regulatory power, but this decision does contain guidance for the courts in critically reviewing agency attempts to expand the meaning of a regulation beyond its original scope – which could be quite helpful in cases challenging inconsistent regulatory enforcement by MSHA.

Enforcement in the field

The most important development in terms of enforcement nationwide has not been so much in what citations have been written, as in who is writing the citations.

Over the course of 2019, MSHA has continued to advance its “One MSHA” initiative which, if carried out to its full extent, will be the most significant reorganization in the agency’s history.

A number of field offices already have been redistributed between the coal and metal/nonmetal district offices. Consequently, a number of nonmetal mines have been suddenly assigned to a coal district office, with inspectors and MSHA managers making enforcement decisions without having had any prior experience with that type of mining operation.

MSHA’s communication with operators about these changes has been uneven – something that the industry is advocating be improved with more “One MSHA” changes to come. Eventually, there may be fewer district offices overall along with changes in where they are located and what areas they cover.

What lies ahead

We can expect rulemaking initiatives to continue. The current administration has placed a strong emphasis on powered haulage safety, including soliciting comments in a pre-rulemaking request for information this year.

We may see something further on powered haulage safety, perhaps incorporating requirements for deploying new technologies into the current safety standards addressing guarding, seat belts and safe operation of mobile equipment or further guidance documentation under the existing standards.

We expect MSHA’s renewed interest in enforcement of health standards will continue in 2020 and the current reorganization efforts to streamline the district office footprint will continue.

In sum, it has been a year of unexpected twists and turns, with possibly more coming in the year ahead.

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