Where MSHA and the industry are right now

By Bill Doran and Margo Lopez| November 23, 2023

Lopez

Doran

As we close out 2023 and look to 2024, now is a good time to take stock of developments in mine safety and health law over the last year and consider what may be on the horizon.

Over the last year, we’ve seen the Mine Safety & Health Administration (MSHA) ratchet up enforcement with an increased emphasis on pattern of violations (POV) authority, as well as the resumption of impact inspections. Even so, there was an increase in fatal accidents that likely will direct much of MSHA’s enforcement emphasis in 2024, as well as the agency’s communications outreach to miners and operators.

Areas of emphasis

• Initiatives related to fatality and serious injury occurrences. MSHA has historically oriented its compliance emphasis and operator outreach toward reducing fatalities. With an increase in fatal accidents this year, the agency responded by issuing multiple safety alerts and best practice materials, and it informally solicited input from operators on what could be done to reverse this trend.

The agency’s enforcement decisions were also influenced by the fatality statistics, with agency inspectors and managers at times elevating findings on violations viewed as having similar causal factors to those seen in recent industry fatalities.

■ Rulemaking. Although we see no new MSHA regulations promulgated in most years, 2024 could be a significant year for rulemaking.

While the rulemaking process for any given new safety or health standard typically takes years to complete, MSHA may be nearing the end of that timeline for two significant rules: the crystalline silica rule and the mobile equipment safety program rule. Neither rule will be easy for operators to implement.

Particularly with the silica rule, many operators are already taking significant steps toward anticipated compliance requirements before the rule is even in place. This may be prudent, as the proposed rule is complex and it will take some time for operators to establish the mechanisms and administrative support for things such as new engineering controls, exposure monitoring and medical surveillance.

Once these rules are out, MSHA may turn its rulemaking sights onto other subjects.

■ POV and impact inspections. MSHA continued to exercise its POV authority this year and resumed impact inspections. MSHA used both to ratchet up pressure on certain mine operators to place increased attention on their safety programs and compliance.

Regarding POV, about 70 operations had implemented corrective action plans at the close of 2023. MSHA has clearly been using its POV authority to drive operator safety programs to implement focused compliance initiatives.

In January, MSHA resumed its impact inspections. None had been conducted since March 2020. The agency is again issuing monthly press releases about the impact inspections conducted, singling out mines and publishing the names of the operator and controlling entity. The releases include numbers and types of citations and orders issued, as well as MSHA’s cursory listing of what led the agency to conduct the inspections.

■ New inspectors. MSHA has been hiring more than 100 new inspectors to replace those who’ve retired or left the agency. Many of these inspectors are undergoing training and may begin inspecting in 2024.

Some of these inspectors may not have had a lengthy mining experience, and they may not be knowledgeable about the mines that they’ll be inspecting. This can lead to issues with inspector judgment when issuing citations and inconsistent enforcement.

■ FMSHRC developments. While developments coming out of the courts and the Federal Mine Safety & Health Review Commission (FMSHRC) may not be as top of mind to operators as MSHA initiatives, the developing case law under the Mine Act can be impactful regarding MSHA’s activities, as well as operators’ compliance requirements.

One of the high-profile cases in 2023 was the KC Transport decision out of the United States Circuit Court for the District of Columbia. The case concerned whether MSHA had jurisdiction to issue citations to a contractor for its trucks at its mobile equipment shop, which was not located directly on mine property.

The commission found that MSHA did not have jurisdiction over the trucks once they left the mine. The D.C. Circuit held that the Mine Act is ambiguous as to whether MSHA has jurisdiction over off-site mine equipment and shops, declining to uphold the commission’s decision. The court returned the case to the commission to further consider whether MSHA’s decision to exercise jurisdiction over the contractor’s trucks at its maintenance shop is entitled to deference as a reasonable interpretation of the Mine Act.

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