Workplace Safety and Health News Alert

MSHA WORKPLACE EXAMINATION RULE: D.C. CIRCUIT COURT OF APPEALS WALKS BACK THE 2018 RULE

June 14, 2019

By: Laura E. Beverage

For clients and friends of Jackson Kelly PLLC
Volume 15, Number 4
©2019 Jackson Kelly PLLC

After years of back and forth, public hearings, stakeholder meetings, and anxiety over the requirements of 30 C.F.R. §§ 56/57.18002, the D.C. Circuit Court of Appeals struck down MSHA’s currently enforced 2018 Workplace Examination Rule on June 11, 2019, in a challenge brought by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, the AFL-CIO-CLC, and the United Mine Workers of America International Union, in slip opinion No. 18-1116.

The changes to the original rule at §§ 56/57.18002 have a long and tortured history starting in 2016 and culminating in a final rule for metal and nonmetal mines published in the Federal Register on January 23, 2017. https://www.govinfo.gov/content/pkg/FR-2017-01-23/pdf/2017-00832.pdf. It was slated to become effective on May 23, 2017.

The 2017 Final Rule required, among other things, that:

a competent person designated by the operator examine each working place at least once each shift, before miners begin work in that place, for conditions that may adversely affect safety or health;
that operators notify miners in the affected areas of any conditions that may adversely affect their safety or health;
that operators promptly initiate corrective action; and
that a record be made of the examination.

Amid numerous delays to the effective start date of the 2017 Final Rule, MSHA reopened the record to consider amendments to the 2017 Final Rule. The agency accepted additional comments and held public meetings. MSHA ultimately replaced the 2017 Final Rule with the 2018 Final Rule (found at: https://www.govinfo.gov/content/pkg/FR-2018-04-09/pdf/2018-07084.pdf) which, among other things, clarified that:

The examination could be conducted as miners were entering the work area, but before they could be exposed to hazards; and
Conditions that could adversely affect safety or health that were “corrected promptly” could be left off the workplace examination form.

The June 11, 2019 opinion analyzed the provision of the Mine Act that requires that no rule may “reduce the protection afforded miners by an existing mandatory health or safety standard.” 30 U.S.C. § 811(a). The Unions successfully argued that MSHA offered an inadequate explanation as to why allowing the examination to be conducted as miners entered a workplace was safer than conducting an examination before they entered. In addition, the D.C. Circuit agreed with the Unions that allowing the examiner to omit recording adverse safety and health conditions which were “corrected promptly” would reduce the level of safety offered by the 2017 Final Rule. The effect of the appellate court’s decision is to vacate the 2018 Final Rule and re-instate the 2017 Final Rule’s regulatory requirements.

The upshot is that metal and nonmetal mining operations will need to revisit compliance measures developed following numerous stakeholder meetings held following the implementation of the 2018 Final Rule. The provisions of the 2017 Workplace Examination Rule now govern. The 2017 Final Rule was challenged by the National Mining Association, National Stone, Sand & Gravel Association, Portland Cement Association, American Iron & Steel Institute, Georgia Mining Association, and Georgia Construction Aggregate Association in Case No. 17-11207 pending in the 11th Circuit Court of Appeals. This challenge was stayed pending this decision of the Court of Appeals for the D.C. Circuit.

We will watch this issue and report on any further legal, policy, or enforcement changes in this complex matter.

WORKPLACE SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

Responsible Attorney
Karen L. Johnston
303.390.0008
kjohnston@jacksonkelly.com

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