Workplace Safety and Health News Alert

MSHA WORKPLACE EXAMINATION RULE: IT IS SO 2017!

November 8, 2019

By: Laura E. Beverage

For clients and friends of Jackson Kelly PLLC
Volume 15, Number 6
©2019 Jackson Kelly PLLC

After years of back and forth, stakeholder meetings, and anxiety over the requirements of 30 C.F.R. §§ 56/57.18002, the Mine Safety and Health Administration (“MSHA”) is now gearing up for enforcement of the 2017 Final Rule commencing on or about December 30, 2019. The 2017 Final Rule is different from the 2018 Amended Final rule in two basic ways: 1) it requires that workplace examinations occur before work commences; and 2) that every condition that adversely affects safety or health be recorded regardless whether it is corrected immediately. MSHA has been enforcing the 2018 Amended Final Rule since June 2018. This change comes after the D.C. Circuit Court of Appeals struck down MSHA’s currently‑enforced 2018 Final Amendments to the 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.

For Those of you Interested in Regulatory History

The original, long-standing workplace examination rule at §§ 56/57.18002 required that a “competent person” examine each working place at least once each shift for conditions which may adversely affect safety and health. If found, prompt, appropriate corrective action was required. If an imminent danger was found, the condition was to be brought immediately to the attention of the operator and all persons affected were to be withdrawn except those required to correct the condition. The fact that the examination had been made was required to be recorded.

However, the prior Administration’s MSHA wanted more and embarked on rulemaking in 2016 to amend the requirements of the workplace examination rule. The 2017 Final Rule was published in the Federal Register on January 23, 2017, at: 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 before work begins;
that operators promptly initiate corrective action;
that a record be made of the examination that includes: the name of the person conducting the examination, the date, the location, a description of each condition and conditions discovered and be supplemented to include the date of the corrective actions taken; and
operators make examination records available to miners’ representatives, in addition to MSHA.

The 2017 Final Rule was challenged on March 17, 2017, by the National Mining Association, the National Stone, Sand & Gravel Association, the Portland Cement Association, the American Iron & Steel Institute, the Georgia Mining Association, and the Georgia Construction Aggregate Association in Case No. 17‑11207 which is still pending in the 11th Circuit Court of Appeals.

There were numerous delays and pauses to the effective start date of the 2017 Final Rule initiated by MSHA to allow “policy review” in a new Administration.

This launched another round of comments and public meeting that culminated in the 2018 Final Rule Amendments (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.

Which Brings us to Now

Since the D.C. Circuit Court of Appeals struck down the 2018 Final Rule Amendments based on 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.

So, MSHA is now holding additional public meetings currently through December 2019 to basically reiterate the 2017 Final Rule Requirements to conduct the examinations of the workplace before miners enter it and to record all hazards even if those are corrected immediately. The bottom line is that the 2018 Final Amended Rule is out and the 2017 Final Rule is in and the stuff that happened in the middle is history.

Unless, of course, the challenge to the 2017 Final Rule filed on March 17, 2017, by state and national trade associations is ultimately decided differently by the 11th Circuit. The appeal has been stayed since 2017 and a request has been made of the Court to move the case forward. Stay tuned, but be ready to comply with the 2017 Final Rule by the end of December.

WORKPLACE SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

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

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