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Volume XI, Number 266

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Eleventh Circuit Affirms Validity of MSHA’s 2017 Workplace Examination Final Rule

In a challenge to the U.S. Department of Labor’s Mine Safety and Health Administration’s (MSHA) 2017 final rule expanding the workplace examination requirements at 30 C.F.R. §§ 56.18002 (Surface) and 57.18002 (Underground), the U.S. Court of Appeals for the Eleventh Circuit found that the final rule had been promulgated and issued appropriately and denied the petition for review. The petition was brought by mining industry trade associations asserting, in particular, that “(1) MSHA failed to make the necessary finding of significant risk that would be eliminated or lessened by the Final Rule; (2) that MSHA failed to demonstrate that the Final Rule constituted an improvement over the preexisting standards; and (3) that the Final Rule was arbitrary and capricious.” The Eleventh Circuit majority rejected these arguments, as well as due process and executive order procedural arguments. One judge dissented, arguing that the rulemaking record indicated that the rule was arbitrary and capricious.

Citing rulemaking precedent under the Occupational Safety and Health Act of 1970 (OSH Act), the industry petitioners had asserted that MSHA was required to make a threshold finding that “significant risks” were present under existing rules and that a modified standard was necessary to eliminate those risks. The industry petitioners pointed out that such a finding could not be made with respect to the new workplace examination rule because industry safety statistics indicated that mining “is perhaps the safest it has ever been” and that there was no indication that the new standard would eliminate any hazard associated with the old standard. The Eleventh Circuit majority, however, declined to adopt this “significant risk” threshold requirement and asserted that the Federal Mine Safety and Health Act of 1977 “‘does not mandate the same risk-finding requirement as [the U.S. Occupational Safety and Health Administration].’”

The Eleventh Circuit also rejected the argument that the final rule was not an improvement over the existing standard. Specifically, the court credited MSHA’s position that the new rule (1) “avoids risks of miners’ exposure to hazards not discovered until later in the shift under the prior rule,” (2) provides prompt notification to miners of identified hazards, and (3) establishes “[a] new recordkeeping requirement [that] will facilitate … and incentivize prompt remedial action.”

Finally, the court’s majority determined that the new rule was not arbitrary and capricious because there was a rational basis for the new requirements. Among other things, the majority credited MSHA’s disputed “experience” that many workplace exams were conducted too late to protect personnel from exposure to hazards and that the new rule would correct this situation. The majority also cited fatal accidents in the record in which there was knowledge of conditions without prompt corrective action that potentially would have had different outcomes with miner notification. The lone dissenting judge disputed that the cited fatal accidents supported a link between compliance with the old standard and the occurrence of the accidents.

While it is too soon to know if any appeal will be initiated in response to this decision, the reality on the ground, at this point, is that the current workplace examination rules at 30 C.F.R. §§ 56.18002 and 57.18002 are here to stay. Operators will continue to have to meet those requirements. Specifically, those requirements include:

  • conducting an examination of each working place before miners begin work in any affected areas;

  • promptly notifying miners of any adverse conditions and initiating correction action; and

  • creating a record of the examination that identifies the adverse conditions found and the date corrective action was taken.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 29
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About this Author

William Doran, Ogletree Deakins Law Firm, Washington DC, Labor and Employment Litigation Attorney
Shareholder

Bill Doran’s practice is concentrated in safety and health law and litigation.

Bill represents and advises companies with respect to issues arising under Federal and State Safety and Health Statutes. He represents companies in accident investigations, special investigations, audits and discrimination investigations conducted by OSHA, MSHA, and state agencies. He also represents companies in litigation before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission and the federal courts.

202-263-0246
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