Here is a Look at the Differences M/NM Operators Can Expect.
By Charles M. Fleischmann
Back in November, MSHA head David Zatezalo indicated that MSHA’s initiative to “blur the lines” between coal and M/NM enforcement had ended. As an apparent follow-up, in late December MSHA released a new, unified M/NM and coal inspection handbook, and has now started training investigators on the new handbook.
This handbook replaces two previous handbooks – the 2016 version of PH19-IV for Coal and the 2009 version of PH09-IV-1 for M/NM – creating a single handbook for both coal and M/NM. Below are some of the key takeaways for mine operators as they encounter MSHA inspections under this new handbook, with a focus on the differences M/NM operators can expect.
By squeezing two longer handbooks into just 58 pages, the new handbook pares down, generalizes or cuts out a lot of material. To create one inspection handbook for all types of mines, MSHA believed that it needed to give more discretion to inspectors, noting: “Not all procedures and requirements are applicable for all mine types. Any deviation from the procedures outlined in this handbook should be based on the inspector’s professional judgment, and discussion with the inspector’s supervisor.”
Nonetheless, apparently recognizing that there are significant differences between coal and M/NM mines, the new handbook retains features unique to coal mines, such as for coal mine dust sampling, and also includes in its Appendices separate checklists for mine records and postings for different mine types. In some ways, the new handbook underscores, perhaps unintentionally, that “blurring” can only go so far.
Major Changes in the New Handbook
A. Abandonment of Three-Phased Approach to Regular Inspections
The previous M/NM handbook took a phased approach to regular MSHA inspections, dividing them into “activities done by inspectors prior to arriving at the mine, the physical inspection of the mine, and activities conducted after the inspection is completed.” Each phase also described subparts with specific inspection activities. The new handbook appears to abandon the phased approach, eliminating much of the content on the first and third phases and handling the physical inspection phase much more generally. In fact, the new section on regular inspections no longer even references pre-inspection and post-inspection conferences. Hopefully, that does not mean MSHA – or individual inspectors – will abandon these important practices.
The new handbook also seems to de-emphasize the walkaround rights of miners and operators. It only says that the inspector must notify the operator and miner representatives of the type of inspection and “afford them the opportunity to exercise their rights under Section 103(f) of the Mine Act.” Previously, the M/NM guide spelled out these rights in detail, which helped emphasize their importance. The new handbook adds that an inspection should begin immediately after a limited review of the most recent relevant examination records. Previously, the M/NM handbook stated that the “extended unavailability” of a miners’ or operators’ representative should not delay the inspection, but this language is now gone.
B. Separate Inspection Requirements for Underground and Surface Inspections
While the specifics on inspections are slimmer in the new handbook, it does introduce a new wrinkle – specific and different inspection requirements for underground and surface mines. While the prior M/NM handbook did contain some points that only applied to one type or the other, it did not adopt a structure separating the requirements. It is worth noting that the new handbook specifies that the surface facilities at an underground mine should be inspected as if they were surface mines.
Typically, the differences in inspection requirements appear to focus on items/conditions generally expected to be found exclusively at one type of mine. For instance, surface inspections include requirements for inspecting spoil banks, stockpiles, impoundments/retaining dams, and refuse piles, while underground inspections include air courses, escape facilities in shafts, self-rescue devices, diesel fuel storage systems, ventilations fans and facilities, material haulage facilities, and communication and tracking installations. Ultimately, however, the differences may not be noticeable since both types of inspections require observation of the complete mining cycle for all work areas.
C. Other Differences
While not a complete list, some additional differences that may be of interest include:
1. Expanding conflict of interest limits on inspecting a former employer. The new handbook adds the additional requirement that at least one year must pass after a mine inspector left employment at a mining company before the inspector could inspect any mines or facilities owned by the company. Previously, the limit only applied to the specific mine where the inspector had worked. This seems like a positive step forward since MSHA personnel inspecting their former employer has posed problems in the past.
2. Crossing the picket line. Previously, MSHA inspectors could not cross picket lines at a mine unless instructed to do so by their supervisor. Under the new handbook, inspectors are instructed discuss the purpose of their presence on the property with the individuals on the picket line and then only contact their supervisor if access to the mine is denied or delayed.
3. What is advance notice of inspections? The previous M/NM handbook included an entire section outlining the general prohibition on giving advance notice of inspections. The new handbook simply says inspectors should take precautions to not inadvertently disclose their intention to conduct an inspection. Giving advance notice is considered a crime, and MSHA has never settled on what constitutes advance notice. Unfortunately, inspectors will turn to the handbook for guidance and not find much, not even references to MSHA’s other guidance on the subject.
4. Abandoned or barricaded areas. The previous M/NM handbook contains several pages on how MSHA inspectors should deal with abandoned or barricaded areas of a mine, including allowing them to determine of whether an area is “legitimately” barricaded or abandoned. The new handbook says inspectors have the right to enter any area in performance of their duties, but that they should obtain information from miners and operators on why areas are barricaded and document the reason an area should not or cannot be inspected in their notes. This new provision could create challenges if it emboldens inspectors to insist on entering areas that are unsafe.
5. Omitting other types of inspections. The previous handbook included lengthy details and full sections on other types of inspections, including hazard complaint inspections, compliance follow-up inspections, compliance assistance visits, accident investigations, and 103(I) gassy mine inspections. References to and discussions regarding these types of inspections are either significantly shortened or totally absent from the new handbook.
These are just some of the highlights. How will the new handbook affect inspections, and how quickly? Inspectors have been using the old handbook for a long time. Some inspectors may take some time to catch up to the changes, while others may interpret the slimmer guidance as granting them more freedom. Some of our biggest legal cases started when an inspector combined too much discretion with poor choices.
Operators should take note: If MSHA is getting re-trained on how to handle inspections, so should the mine managers and supervisors who accompany MSHA inspections. They are the first line of defense in preventing unjustified enforcement. Every year, our Husch Blackwell MSHA defense team provides cost-saving, in-house training to mines around the country. The new MSHA handbook is a good reminder that now’s a great time to prepare your team.
Charles M. Fleischmann is an associate in the Washington, D.C., office of Husch Blackwell. He provides legal counsel to businesses and executives facing government investigations and also assists companies with their compliance needs prior to the government becoming involved. He can be reached at [email protected].