With congressional, media, and MSHA pressure to focus on black lung disease, mine operators should expect stringent enforcement of coal dust standards and potentially new regulation, as well. In the latest edition of Coal Age magazine, I take a look at the latest developments and offer some thoughts on how MSHA may respond.

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Can mis-steps with OSHA land you in jail? Several recent cases are a reminder that the risk is real. While OSHA rarely makes a criminal case out of safety violations, it does pursue criminal charges when people mislead the agency through false statements, falsified records, or destroyed documents. A company that does not take great care in handling an investigation risks such costly errors, leading to criminal prosecution and stiff penalties under federal law.

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A report at the end of last year by DOL’s Office of Inspector General highlights what OIG considers major challenges for OSHA and MSHA in fulfilling their missions. The report also provides a window into where the workplace safety agencies may focus their energies in 2019 – and where employers may face increased risks of enforcement and other liability.

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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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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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As the Trump Administration pursues its agenda of de-regulation, OSHA issued a policy memo recently, reversing course on a key part of its approach to the Voluntary Protection Program (VPP). According to a May 30th memo, which revised a 2013 policy (“Memorandum #7”), OSHA will no longer automatically issue an Intent to Terminate Notice (ITT) to companies on VPP when certain events occur. Instead, the agency will take a more deferential and conciliatory approach to overseeing VPP participants. The changes implemented by the May 2018 memo took effect immediately.

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