This morning, MSHA posted advance copies of two rules, which it will formally publish tomorrow, to briefly delay and modestly amend its pending 2017 Workplace Examination Rule as expected since early August. The proposed changes appear to address two of the many concerns raised by industry regarding the 2017 rule. Continue Reading MSHA proposes delay and changes to new workplace examination rule

Out of the blue, MSHA cites an operator, claiming that the operator should have known that a condition or practice violated a standard.  MSHA itself—dozens of different inspectors and their supervisors—was unquestionably aware of the condition or practice for years or decades.  Now, the alleged violation must be abated.  Abatement will require significant changes, e.g. changes to the ventilation system, mine plan or to the type or equipment used at the mine. Continue Reading MSHA argues that its inspectors were “not intelligent enough”

In the last few months, mine operators around the country have seen individual MSHA inspectors and districts suddenly enforce new interpretations for a number of regulations. The latest rule evolving right before our eyes in one district could have widespread effect: grounding and continuity testing. Is MSHA’s new approach justified? Continue Reading Discontinuity: A new change in MSHA enforcement with far-reaching impact

MSHA will propose as yet undefined changes to the Workplace Exam Rule amendments adopted on Jan 23, 2017, that require exams prior to work, new records, and communication of exam results. We also expect MSHA will soon issue a further extension of the new rule’s current Oct, 2017 effective date.  In the interim, the industry association litigation challenging the rule is fully briefed and awaits an oral argument schedule. Discussions with key officials continue to emphasize the problems caused by the rule amendments and their improper publication, after the President’s regulatory freeze.

Isolated stack of folders, filesThe Sixth Circuit Court of Appeals recently held that MSHA could demand a miners’ personnel records to assist an investigation into a worker’s discrimination complaint. In Hopkins Coal, an operator refused to provide personnel records to an MSHA investigator on the grounds the agency had not identified any protected activity the miner engaged in. The request for documents included the personnel records for the complainant and other employees with similar discipline to that of the complainant.

The court of appeals held that MSHA had the right to the requested documents, even though those records were not required to be kept under the Mine Act, and that the files were “reasonably required” under Section 103(h) to conduct the investigation.

As noted in the dissent by one Circuit Judge, this records demand amounted to a “fishing expedition” where MSHA sought documents to support the miner’s complaint without the miner’s allegations being fully articulated. Essentially, MSHA’s document requests (particularly those related to the personnel records of other miners) amounted to an effort to help the miner allege a successful whistleblower complaint.

A few weeks back, MSHA announced a new “training and enforcement” initiative on “working alone,” which MSHA claimed was necessary because of five fatalities in 2017. But, I had to ask: do these incidents really have anything to do with each other or with working alone? Continue Reading Digging deep into MSHA’s working alone initiative – on solid ground?

by Kaileigh Fagan

Despite a proposed $2.4 billion (19.8%) cut to the Department of Labor’s annual budget in President Trump’s fiscal year 2018 budget proposal, the lead U.S. workplace safety agencies – the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) – would see only small budgetary changes. Continue Reading President’s 2018 budget impacts some safety agencies more than others