Reviewing MSHA in 2020, and a look to 2021

By and |  December 2, 2020
Headshot: Margo Lopez


Without a doubt, the pandemic brought with it unprecedented challenges for mine operators this year. 

First was the question of whether mines would have to close under state and local orders. Fortunately, this question was resolved in the industry’s favor, with determinations that aggregate and other types of mining operations were essential businesses for the country’s infrastructure.

Then came the questions of how to best protect miners from becoming infected at work. Operators quickly identified exposure risks and instituted protective policies and procedures to mitigate them. They also generously shared their best practices through industry associations. These continue to evolve as needed.

Last, but not least, was the issue of Mine Safety & Health Administration (MSHA) enforcement in the time of COVID. What would it look like, and would MSHA cooperate with operators in following their COVID-protection policies?

Headshot: Bill Doran, Ogletree Deakins


This is still very much a work in progress. Unlike the Occupational Safety & Health Administration (OSHA), MSHA was slow to issue any COVID-related enforcement guidance. This improved somewhat in recent months, when, for example, MSHA began granting extensions to complete training and certain certifications. 

Also, for the most part, local MSHA inspectors have been cooperative in following social distancing and other measures during inspections, but the agency has not mandated that inspectors do so.

MSHA was successful in resisting organized labor’s attempts through litigation to force the agency to promulgate an emergency temporary standard addressing COVID protections. MSHA responded by insisting that its current standards were adequate to protect miners. 

Were former vice president Joe Biden to become president, MSHA, as well as OSHA, may issue emergency temporary standards. In the meantime, states such as Virginia and localities have been filling the void by issuing their own emergency health standards and guidelines. Others will follow, adding to the patchwork of COVID requirements across the country.

The question remains as to how MSHA will apply its existing standards to address COVID hazards. Agency officials have said in stakeholder meetings that inspectors may issue citations for training, PPE, sanitation and workplace examinations, depending on the circumstances. It does not appear, however, that this has been done yet on any widespread basis, and there is no written guidance for operators on how these vaguely worded standards actually will be applied.

Rulemaking changes?

MSHA has long forecasted that it would issue, in 2020 at least, proposed rules addressing powered haulage hazards and silica. The dates have continued to slip, however, but we still expect something before the end of the current administration’s term – particularly if it looks like there will be a turnover in the White House.

We can expect that the substance of the rules will change considerably under a new administration, with more mandated technology implementation in the powered haulage rule, and perhaps no credit given for the use of respiratory protection in the silica rule.

There is also a high probability of even more rulemaking focused on new requirements not currently on the rulemaking agenda.

Changes in MSHA enforcement overall?

Last, and certainly not least, is the question of what MSHA enforcement will look like if we have a Biden administration. 

We wrote on this topic not long ago, noting that MSHA has been more active over the last four years than had been predicted. Even so, under a Biden administration, there definitely will be stepped-up enforcement, with a possible return of more aggressive use of “knowing and willful violation” allegations against individual supervisors and issuance Pattern of Violations closure orders. 

There is also concern that MSHA may return to its former practice of “public shaming” of operators by issuing press releases announcing citations, penalties and other forms of enforcement, as well as touting operator capitulation in high-profile settlements. Operators will also need to remain vigilant for instances where MSHA is impermissibly reinterpreting its standards and overextending its authority under the Mine Act.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at and

Featured image: P&Q Staff

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