October 23, 2018

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October 22, 2018

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MSHA 2017 Year End Review

This article provides a brief review of MSHA enforcement data and a look at MSHA’s regulatory agenda.

MSHA Enforcement Data (data from January 1, 2017 to December 31, 2017)

MSHA issued 104,412 enforcement actions to mine operators in 2017, an increase of approximately 11,793 or 11.3 percent from 2016. Of these, 58,083 (or 55.63 percent) were issued to metal/nonmetal operators while 46,329 (or 44.37 percent) were issued to coal operators. The month of August had the most enforcement actions issued (11,006) followed by May (10,423). September (5,398) and December (6,264) were the two months with the smallest number of enforcement activity.

Of the 104,412 enforcement actions issued more than 22 percent (22,991) were issued as significant and substantial (S&S). August (2,564) and May (2,284) led the way with September (1,197) and December (1,409) being the two months with the least amount of S&S activity. Interestingly, six of the 12 months saw at least 8 percent of the enforcement actions issued as S&S in both metal/nonmetal and coal.

During 2017 a total of 28 standards comprised the most frequently cited standards for metal/nonmetal and coal. For metal/nonmetal, 14 standards accounted for 20,764 enforcement actions. 30 C.F.R. Section 56.14107(a) (moving machine parts) was the most cited metal/nonmetal standard – comprising almost 17 percent of the top 14 metal/nonmetal standards. 30 C.F.R. Section 56.12004 (electrical conductors) made up almost 15 percent of the top 14 metal/nonmetal standards. Finally, 30 C.F.R. Section 56.14100(b) (safety defects) made up more than 11 percent of the top 14 metal/nonmetal standards.

For coal, 13 standards accounted for 15,388 enforcement actions. Not surprisingly, 30 C.F.R. Section 75.400 (accumulations of combustible materials) made up approximately 28 percent of the top 13 coal standards while 30 C.F.R. Section 75.370(a)(1) (mine ventilation plan; submission and approval) made up almost 13 percent of the top 13 coal standards. Finally, 30 C.F.R. Section 75.1403 (safeguards) made up slightly more than 10 percent of the top 13 coal standards. The final standard, 30 C.F.R. Section 50.30(a) (preparation and submission of MSHA Form 7000-2 quarterly employment and coal production report), which pertains to both metal/nonmetal and coal operators, made up more than 5 percent of the top 28 standards cited by MSHA.

As in years past, MSHA issued the majority of enforcement actions under Section 104(a) of the Mine Act. For metal/nonmetal, 56,090 (96.57 percent) were issued under Section 104(a) while 44,937 (97 percent) were issued in coal. Of the 104,412 total enforcement actions issued to both metal/nonmetal and coal, 71.51 percent were issued as unlikely while 21.77 percent were issued as reasonably likely.

For type of injury, the data was somewhat telling. Of the total enforcement actions issued in metal/nonmetal, approximately 50 percent were issued with lost workdays or restricted duty compared to almost 70 percent in coal. The difference was made up in permanently disabling and fatal designations. For metal/nonmetal, 19 percent were issued as permanently disabling (compared to less than 12 percent for coal) and more than 21 percent issued as fatal (compared to approximately 11 percent for coal).

Approximately 74 percent of all enforcement actions were issued with moderate negligence. However, more than 23 percent were issued as low negligence to coal operators (compared to almost 15 percent for metal/nonmetal) while almost 10 percent of metal/nonmetal enforcement actions were issued as high negligence (compared to less than 5 percent for coal).

Comparing the 2017 data from the 2016 data shows some interesting trends in enforcement activity. There was an overall increase of approximately 11,793 enforcement actions (11.3 percent) which indicates the new administration is not slowing enforcement. The same trend is seen in S&S enforcement activity as 2017 saw an increase of approximately 1,775 (7.73 percent) S&S enforcement actions.

While the total number of enforcement actions increased in 2017 the relative percentage of enforcement actions issued under Section 104(a) of the Mine Act to both metal/nonmetal and coal operators remained constant (approximately 97 percent).

Likewise, the likelihood of injury percentages remained constant – approximately 70 percent were marked as unlikely for both metal/nonmetal and coal in 2016 and 2017 and approximately 22 percent were marked as reasonably likely for both metal/nonmetal and coal in 2016 and 2017.

For type of injury, in 2017 60 percent of the total enforcement actions issued to both metal/nonmetal and coal were marked as lost workdays or restricted duty, a slight increase from the 57 percent in 2016. Similarly, there was an increase of approximately 2,557 enforcement actions marked as fatal in 2017 to both metal/nonmetal and coal operators.

Finally, like 2016, in 2017 MSHA marked moderate negligence in approximately 74 percent of the total enforcement actions for both mental/nonmetal and coal.

MSHA’s Regulatory Agenda

MSHA’s Fall 2017 Regulatory Agenda was announced December 14, 2017. The Department of Labor’s agenda, in line with the Trump administration’s goal of deregulation, seeks to “finalize three deregulatory actions for every new regulatory action in FY 2018.”

MSHA’s specific agenda includes – in the pre-rule stage – exposure of underground miners to diesel exhaust, a regulatory reform of existing standards and regulations (retrospective study of respirable coal mine dust rule), and a request for information for alternatives to petitions for modification.

In the final rule stage, and where the industry might see the first action, are two important actions. First, for coal, a limited re-opening of the record for refuge alternatives for underground coal mines. MSHA is planning on having the final rule prepared by April 2018 according to the agenda. Second, for metal/nonmetal, the final rule on examination of working places. MSHA has marked June 2, 2018 as the effective date for the final rule (pending the current litigation by industry trade groups challenging the proposed rule).

© 2018 Dinsmore & Shohl LLP. All rights reserved.

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About this Author

Jason M. Nutzman, Dinsmore Law, Labor Lawyer, Mine Safety Attorney
Partner

Jason Nutzman is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Jason represents clients before the Federal Mine Safety and Health Review Commission in accident investigations, special investigations, and discrimination investigations conducted by the Department of Labor with respect to the
Mine Safety and Health Act.

In his practice, he works with human resource managers and in-house counsel providing employment advice and litigation support to employers. Jason also provides employment counseling to employers from the beginning...

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