On October 17, 2018, OIRA published the fall regulatory agenda for MSHA. The major regulatory priority on MSHA’s agenda continues to be an examination of the protections provided to reduce underground miners’ exposure to diesel exhaust and refuge alternatives for underground coal mines. The MSHA/NIOSH Diesel Health Effects Partnership convened its third meeting in July 2018 and attracted 50 stakeholders from across the industry spectrum to chart an effective path for change.

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During its recent quarterly stakeholder call, the Mine Safety and Health Administration announced a new “Fire Suppression Safety Initiative” (FSS) to ensure that fire suppression systems on mobile equipment are in working order and capable of extinguishing equipment fires. The initiative appears to involve educating operators about FSS, including proper inspections and maintenance, as well as stepping up related enforcement.

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OSHA says it will increase enforcement with a revised National Emphasis Program (NEP) for trenching and excavation because of an increase in fatalities. According to the Bureau of Labor Statistics, trenching and excavation deaths nearly tripled between 2011 and 2016 (130 deaths in all in that time). The revised NEP will add enforcement, compliance assistance, and outreach programs.

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One unique challenge on mine sites is the rule requiring a phone call to MSHA within 15 minutes of certain serious accidents. Operators otherwise consumed with emergency response must make quick, on-the-scene judgments about whether a miner’s medical condition is life threatening. With 20/20 hindsight, MSHA often disagrees with their decisions and issues citations. A recent case vacating a 15-minute reporting citation is a reminder that there are often good grounds to contest such allegations.

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Summer may now be over, but the debate over how OSHA should regulate worker exposure to heat – indoors and out – may be getting hotter. Over the summer, both the National Institute for Occupational Safety and Health (NIOSH) and a coalition of private advocacy groups and individuals supported OSHA developing a heat stress standard. While OSHA has offered guidance on protecting workers from overheating and cited companies under the catch-all General Duty Clause, it does not currently have particular heat exposure limits or mandates.

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According to a recent court opinion, last month MSHA reached a settlement with a mining company that included removing the company from the list of operators with a “pattern of violations” (POV). While a 3-1 majority of the Federal Mine Safety and Health Review Commission agreed to dismiss the case, one commissioner dissented strongly.

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With the nomination of Judge Brett Kavanaugh to the Supreme Court, occupational safety and health professionals may be interested in the impact he may have on future cases involving OSHA, the Occupational Safety and Health Act, MSHA, and the Federal Mine Safety and Health Act. Judge Kavanaugh’s testimony before the Senate Judiciary Committee this week has shown him to be thoughtful and very well qualified (not to mention incredibly patient).  At this point, it seems apparent to all that he will soon be confirmed by the Senate.

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