On June 11, the U.S. Court of Appeals for the D.C. Circuit issued a decision ordering the Mine Safety Health Administration (MSHA) to restore two key provisions of the workplace examination rule that MSHA had published in 2018. This case was brought about by concerns from United Steelworkers, United Mine Workers of American and other labor unions, and requires MSHA to revert to the rule as it was issued in 2017.
The D.C. Circuit decision is not yet final, however, and the 2018 version of the workplace exam rule remains in effect, according to the National Stone, Sand and Gravel Association (NSSGA).
The 2017 version of the rule requires that each working place be examined at least once each shift “before miners begin work” in that place and that the examiner record “each condition found [in the examination] that may adversely affect the safety or health of miners.” NSSGA and member companies have said that this would increase administrative tasks without requisite safety benefits and undercut operator ability to manage for safety.
MSHA revised the rule in 2018 in response to industry concerns to broaden the time in which a competent person could conduct workplace exams from just before the shift to include “as miners begin work in that place.” It also reduced the type of hazards found during exams that require documentation to just those hazards that cannot be “corrected promptly,” which MSHA interprets to mean those hazards that are not abated before workers are potentially exposed to the hazard. While NSSGA was somewhat pleased with MSHA’s changes to the rule in 2018, the association remains concerned that the rule over-reaches by dictating any specific times for conducting workplace exams or documentation requirements.
The court’s decision was based on a provision in the Federal Mine Safety and Health Review Act that prohibits MSHA from issuing any rule that reduces the protections afforded by an existing MSHA rule. The court examined MSHA’s rationale expressed in the rulemaking records for the 2017 rule and the 2018 amendment and held that MSHA did not adequately explain how the 2018 amendment did not lessen the protections provided by the 2017 rule.
NSSGA’s separate litigation challenging the 2017 rule remains pending at the 11th Circuit Court of Appeals. That case has been on stay awaiting this recent decision from the D.C. Circuit. NSSGA is evaluating options for proceeding with that challenge in light of the D.C. Circuit’s decision. It is unknown whether MSHA will seek further judicial review of the D.C. Circuit’s decision.
NSSGA will continue to monitor this situation and report further developments.