Renewable Energy Update

THE MSHA WISH LIST FOR THE NEW SECRETARY OF LABOR

January 10, 2017

By: Patrick Wayne Dennison and Kristin R.B. White

Happy New Year! The Federal Mine Safety and Health Administration (“MSHA”) has been busy clearing out any lingering rulemaking or policy decisions before the end of the current Administration.

For the new MSHA Administration, here is our wish list of priorities:

• Fill the vacancy on the Commission with a view towards establishing a check on the power and authority of MSHA.
• Stop regulating through policy guidance and follow the established formal rulemaking process.
• Establish a meaningful conferencing process prior to the issuance of proposed penalties.
• Return the development and implementation of mine plans back to an operator?specific approach where there is a fair weighing of all evidence concerning the suitability of the plans for the particular mine, rather than a one?size?fits?all approach.
• Rescind the respirable dust rule to review and consider the empirical data and suggested alternatives provided from industry that illustrated the unworkable nature of the rule and the better means of achieving the same results.
• Redefine tests for: (1) what constitutes “interference” under § 105(c) of the Mine Act so an operator’s intent is considered; and (2) what constitutes “significant and substantial” to be consistent with the particular facts of a violation rather than the hypothetical “what?ifs.”
• Establish and adhere to real timelines for special investigations.
• Reform the Part 50 immediately reportable accident rule to specifically address what must be reported to provide better and more meaningful compliance with the rule.
• Reform the relationship between operators and contractors, which would include rulemaking on when it is appropriate to cite one operator for the violation of another. MSHA should also seek to provide clarification for who needs to report accidents and injuries on the MSHA form 7000-1.
• Rescind and reform the work place examination rule to address M/NM industry concerns. The changes proposed in the new rule present concerns for operators, including but not limited to, the concern that MSHA will cite operators for violations it finds in examination records even if operators are in the process of abating or have already abated those conditions.

While there are likely more “wishes” that could be included for MSHA, we see these as key issues for the new administration. Please contact Jackson Kelly PLLC for help with these or other Safety and Health concerns.

This article was authored by Kristin R.B. White & Patrick W. Dennison, Jackson Kelly PLLC.