Déjà Vu All Over Again

MSHA’s Latest on the Workplace Examination Rule.

Just when we thought the Workplace Exam rule would go into effect as published, at the 11th hour, the Mine Safety and Health Administration (MSHA) attempted to make it a bit more palatable with a couple of amendments and another postponement of the effective date.

While the proposed amendment addresses some of the issues inherent in the rule, it doesn’t come close to resolving the concerns that the industry has been raising since it was proposed. Looking at each of MSHA’s actions, however, I think you’ll agree that its proposal don’t come close to addressing the industry’s concerns.

Effective Date

First, MSHA proposed to move the effective date from Oct. 2, 2017, until March 2, 2018 – a period of five months. How MSHA came to this particular time period is a mystery, but it becomes even more puzzling when you read its explanation.

Of course, a postponement of the effective date was necessary to accommodate the time period necessary for going through the rulemaking process on its proposed amendments. But MSHA goes on to explain that the additional time is necessary to “collaborate” with industry and to produce training materials, hold outreach sessions and do compliance assistance inspections.

To begin with, it is difficult to understand what “collaboration” is going to occur after amendments to the rule have been proposed. The time to collaborate would have been before the proposals were put forward for comment. The comment procedure is hardly collaborative.

It consists of a one-sided process, where interested parties submit comments and the agency remains totally silent until the final rulemaking is published. If MSHA had truly wanted to collaborate, it should have done so before the rule, or at least the latest amendment, was proposed.

There is more to this issue than simply the opportunity for collaboration. When you deconstruct the timeline of MSHA’s proposal, it becomes obvious that March 2, 2018, does not provide enough time to do the sort of outreach, training and compliance assistance that MSHA professes is needed. The comments on the amendments are not due until Nov. 13.

Once received, MSHA will have to analyze them, prepare a summary of the comments and draft responses to them, determine whether any additional changes are necessary before submitting them to the Federal Register Office for publication.

Taking into account that there is, at best, sparse activity between Thanksgiving and the new year, it is hard to imagine that MSHA will be able to publish a new final rule before mid-January, leaving only about 45 days to distribute training materials, hold outreach sessions and conduct compliance assistance visits in enough time for about 12,000 mines to adjust their practices to MSHA’s expectations. It’s unrealistic.

The comment deadline on the extension of time will have expired before this is published, but we have advised clients to suggest to MSHA that the effective date should be 180 days after publication of the final rule, rather than a fixed date.

Substantive Amendments

As for the substantive amendments, MSHA proposed only two. First, they proposed that the examination record need not record adverse conditions that were corrected immediately and second, they proposed that the examination could take place “as work begins” as well as before work begins.

Taken together, these two amendments are puzzling. MSHA has said that “immediately” means “before workers are exposed to the condition.” One struggles to wonder how a condition can be corrected immediately if the examination is conducted concurrently with work beginning. At the very least, MSHA will have to clarify these two apparently competing, if not conflicting, directions. Each of them should be examined separately.

First, the issue of “immediate correction” raises a number of issues that are left over from the initial proposal. MSHA does not define “correction” in any of its material to date. This is actually more than a semantic question. The best example I can think of is loose ground on a highwall. In the normal course of events, the decision is often to berm off the area, keep everyone out of the zone of potential failure and operate normally until the “condition” itself can be “corrected.”

In many cases, the “condition” is not “corrected” at all, but rather, simply left in the bermed off area until the next shot is taken. The same is true for a number of other types of conditions that can simply be isolated from exposure to miners until the source of the problem is addressed.

Immediate Correction

MSHA uses the example of moving a hose out of a walkway. While that is a great example of immediate correction, it oversimplifies, and, in doing so, obscures the problem. MSHA will have to address this issue in much more detail in order for this proposed amendment to be meaningful. Unless and until this issue is addressed, the amendment runs the risk of simply increasing enforcement exposure rather than easing the recordkeeping burden, as MSHA intended.

Allowing the examination to take place as work begins is another well-intentioned amendment which, without clarification, can become just another problem for the unwary operator. The issue is this: Despite MSHA’s insistence that they are not trying to curtail the number of people doing workplace exams or create disincentives for multiple examinations, they have done just that.

What is more, the language in the preamble to both the final rule and the new amendments, is cast in such a way that one can’t help but conclude that MSHA envisions a single “examiner” responsible for carrying out the regulatory requirements. Obviously, having multiple examiners would require creation of multiple records, all of which would 1) have to be totally consistent and 2) would be subject to all of the recordkeeping requirements. For that reason, the single examiner would have to complete the examination of all of the work area before any miner is exposed to any adverse condition that “may” affect them. In other words, it is easy to envision enforcement issues arising from the timing of the exam if it is conducted as work begins, rather than before it starts.

To wrap up, MSHA said its amendments addressed on some of industry’s concerns. One has to wonder whether MSHA meant to imply that it would address other concerns that had been raised or that it knew that it had not addressed every concern, but did not intend to address them before the rule is finalized.

There is still an opportunity for the collaboration MSHA professes to favor, but in order to take advantage of it, MSHA would either have to withdraw the rule and begin a collaborative process to formulate a new one, or suspend the rulemaking process in order to allow for dialogue and create a real opportunity to come up with a rule that addresses the obvious problems with the existing rule without creating a morass of compliance issues that will inevitably overwhelm any real safety benefit in a storm of litigation.

Mark Savit is senior counsel at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He has extensive experience in mining and oil and gas; health, safety and environmental law; industrial disaster response; and regulatory and legislative services. He can be reached at [email protected].

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