MSHA Is Happy To Saddle The Industry With $276 Million In Additional Costs Over The Next Decade Or So For A Rule That May Not Be Beneficial.

By Brian Hendrix

On April 9, the Mine Safety and Health Administration (MSHA) finalized its Examinations of Working Places in Metal and Nonmetal Mines Rule (WPE Rule). For those who are keeping score, this is the second “final” version of the rule. MSHA rushed the first “final” version through the rulemaking process and published it on Jan. 23, 2017, just a few days after the inauguration.

Stakeholders rightly criticized the rule, and several challenged the it in court. MSHA delayed its implementation at least three times and proposed a few changes to it back in September. Among concerns raised by stakeholders were safety (diverting safety resources to record-keeping duties), feasibility (ability to examine vast mines at the beginning of each shift), compliance (uncertainty about when an exam was timely, when notification was required, etc.), and cost (MSHA admitted that it was “unable to quantify the benefits” of the rule).

Midnight rulemaking is a bipartisan tradition, but MSHA published this rule after the clock struck 12:00. MSHA didn’t ignore the new administration’s Executive Order expressly barring the publication of midnight rules after Jan. 20, 2017, but it certainly didn’t respect it. To MSHA, the president’s Executive Order was taken as more of a recommendation.

MSHA has cast aside stakeholders’ concerns and finalized the rule. It will be effective June 2. Here are the main provisions:

• Timing of Examinations: Examinations must be conducted at the beginning of the shift or “as miners begin work.”
• Notification of miners. Operators must “promptly notify miners” in “affected areas” of adverse conditions that are not “promptly” corrected. “[I]n most cases, verbal notification or descriptive signage would be needed to ensure that all affected miners received actual notification of any adverse condition.”
• Examinations recorded before shift ends. Examinations must be recorded or documented before the end of the shift.
• Detailed records of conditions. Examination records must be detailed and include – for any adverse conditions that are not promptly corrected – descriptions of the conditions and be supplemented to state when corrective action was taken.
• Record production and retention. Examination records must be made available not only to MSHA upon request, but also to miners, and kept for one year.

The most notable difference between the first final rule and the latest final rule is that the latter requires examinations to occur “at least once each shift before work begins or as miners begin work in that place.” This makes very little sense to me. Isn’t a miner working when he performs a workplace examination? If that’s not work, then a MSHA inspector performing a regular inspection isn’t working. So, I’d say the vast majority of MSHA inspectors and their union will agree that examining a workplace for hazardous conditions qualifies as work.

Second, hazardous conditions aren’t normally self-correcting. Correcting a hazardous condition is work. A miner must correct or address the condition. It’s usually the case that miners must take some action in the affected area to correct or otherwise address a hazardous condition after it is identified. That action is properly considered “work,” and it is usually performed by miners in an “affected area.”

Miners who inspect after a shot and then scale down the loose material they find or install support are working. If the mining cycle is drill, load, shoot, inspect/take down/support, muck and repeat, doesn’t the inspect/take down/support part of that cycle count as work? Shoveling material off a catwalk along a beltway is housekeeping – it addresses a potentially hazardous condition and it is work. If it takes a miner half a shift to shovel the catwalk and others miners don’t travel through or work in that area until it is clean, was the condition corrected before work began?

To be fair, MSHA has assured stakeholders that it will answer these and a host of other questions during several public meetings between now and June 2. We’ll see, but I am skeptical. If MSHA has all the answers, why wouldn’t it publish those answers in the final rule?

Is It In Writing?

In truth, MSHA’s WPE Rule has very little to do with safety or health. Rather, its purpose is to teach miners and the mining industry a couple of lessons. The first lesson is one that’s near and dear to the heart of every true bureaucrat – if it’s not in writing, it didn’t happen.

For MSHA, a day without paperwork is like a day without sunshine. As an attorney, I’m hardly one to complain about all the paperwork MSHA requires inspectors to do in order to document inspections and investigations, enforcement actions and the like. First, all those documents are typically quite useful to me in litigation. Second, I’m mindful of the fact that my own profession has consumed vast forests for notes, briefs and the like. I’ll not be the first to cast that particular stone.

In contrast, miners and the mining industry aren’t paperwork enthusiasts. It’s not 1:1, but you might say that the larger the pile of paperwork, the smaller the pile of concentrate, aggregate, sand, etc. No matter though. MSHA believes that more paperwork will make our mines safer and healthier.

How do we motivate miners to conduct thorough exams, identify hazards and correct them? MSHA’s answer: Paperwork! Lots of it! How do we get to zero? More paperwork. Who knew?

Second Lesson

The second lesson MSHA wants to teach us is that it can promulgate a new rule based solely by its belief that the rule is justified and while frankly and forthrightly admitting that it cannot quantify the benefits of the rule. Data? Actual experience? MSHA needs none of that to promulgate a new rule.

MSHA is happy to saddle the industry with $276 million in additional costs over the next decade or so (that’s MSHA’s estimate, not the industry’s) for a rule that may not be beneficial. MSHA cannot quantify the benefits of the rule, and it doesn’t care to. It wants industry to know that it can’t be bothered to even try. This is MSHA spiking the football.

So, what to do? Mine operators would do well to work with their counsel to develop compliance plans to meet the new requirements, particularly in light of some uncertainty in interpretation. In many cases, this will require new systems, procedures and even staffing for:

• Completing and handling additional paperwork.
• Checking records to be sure that proper follow-up occurs in documenting corrective actions.
• Retraining all miners on the new protocols.
• Auditing crews to ensure that they perform all required examinations of the right places at the right times (before or as work begins, and before exposure of miners to adverse conditions) and with notice to miners of adverse conditions found that are not promptly corrected.

Beyond that, the first final rule was challenged in court, and MSHA’s second final WPE Rule may yet see a challenge. Rulemaking challenges are always hard to win, but I can’t think of a rule that’s more ripe for a challenge.

Brian Hendrix, a member of Husch Blackwell’s Energy & Natural Resources group, advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He has extensive experience with federal and state agencies and has represented numerous clients in manufacturing, natural resource production and service-related industries. [email protected], 202-378-2417.