October 22, 2019

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MSHA Workplace Examination Rule Delayed Once Again

On January 23, 2017, the Mine Safety and Health Administration (MSHA) published its long-awaited final rule regarding modified workplace examination requirements in non-coal mines.  The rule was originally scheduled to go into effect in May of this year, but implementation was delayed twice until October 2, 2017.

Over the past several months, operators have been widely implementing organizational changes in preparation for the October 2 effective date of the new requirements; however, on September 12, MSHA published two additional proposed rules—one rule proposing to again delay implementation of the final rule, and a second rule, once again, proposing additional substantive changes to the final rule.

The current final rule most notably requires workplace examinations to be conducted before work begins and ramps up notification, recording, and recordkeeping requirements associated with the examination.  For example, the current final rule requires that the examination be recorded prior to the end of the shift, that all miners working in the affected areas must be promptly notified of hazardous conditions, and that all discovered conditions that may adversely affect the safety and health of miners be recorded, even if they are corrected before work begins.  Other requirements can be found here.

The proposed further delay in effective date of the final rule is designed to allow time for public notice and comment on MSHA’s two substantive changes to the final rule.  First, MSHA is now proposing to change the timing of the workplace examination to occur either “before work begins,” as currently drafted, or “as miners begin work.”  Importantly, however, adverse conditions must still “be identified before miners are exposed,” thereby raising questions as to whether this modification practically changes an operator’s requirements.

Second, the proposed rule would require operators to only record hazards that have not been corrected before miners might be exposed to them, as opposed to allhazardous conditions under the current final rule.  Although this provision would lower the likelihood that MSHA could use an operator’s own examination records against them to issue citations for conditions promptly corrected, it does not remove this risk altogether.  The remaining provisions remain unaltered.

Appearing to change course from the rationale underlying the current final rule, MSHA has opined that substantively this modification will give operators greater flexibility to manage their safety and health programs without reducing protections associated with the examination.  MSHA has also stated that the change would save operators approximately $27.6 million in annual operating costs.  In addition to providing an opportunity for notice and comment, MSHA has also said the associated delay will “offer additional time for MSHA to provide stakeholders training and compliance assistance.”

The current proposed delay would extend implementation of the final rule until May 2, 2018.  Comments on the delay must be received by MSHA by September 26, 2017.  In the meantime, MSHA will take public comments regarding the substantive changes for 60 days following publication or until November 13, 2017.   Four public hearings will also be held in Arlington, Virginia (October 24, 2017), Salt Lake City, Utah (October 26, 2017), Birmingham, Alabama (October 31, 2017), and Pittsburgh, Pennsylvania (November 2, 2017).  Each hearing will begin at 9 a.m. local time.

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About this Author

Matthew C Cooper, Squire PB Litigation attorney
Senior Associate

Matthew Cooper utilizes his unique experience as a federal government trial lawyer and boutique employment firm litigator to provide pointed advice to employers dealing with environmental, safety and health (ESH) issues and general employment matters.

Matt’s ESH practice consists of helping employers navigate regulatory inspections, investigations, accidents and other crises management, as well as litigating a wide array of government enforcement actions, including both Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration...

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Anne Harrington Energy Attorney Denver Squire Patton Boggs
Associate

Anne Harrington counsels clients in the energy and natural resources industries on a wide range of regulatory, administrative and public policy concerns ranging from compliance with federal and state environmental, health and safety laws, to Western public lands laws, to obtaining regulatory approvals.

Additionally, she draws from her past experience as a legal analyst and compliance deputy for an international biopharmaceutical and vaccines company and her training in bioethics to represent healthcare and health data companies. She advises clients ranging from small physician practices to state health information exchanges on federal and state regulatory issues with a focus on data privacy.

Energy and Natural Resources

In her energy and natural resources practice, Anne regularly advises national and international companies on regulatory compliance with state and federal health and safety laws, helps to manage company responses to regulatory inspections, investigations, citations, accidents and whistleblower actions, and defends companies in resulting state and federal enforcement actions (primarily MSHA and OSHA). She has substantial experience in drafting state and federal legislation, advising clients on public policy implications of legislative efforts, participating in federal notice and comment rulemaking efforts, and working with clients to devise and execute public policy strategies, including Congressional outreach, to address federal agency matters.

Healthcare

Anne has deep experience in developing risk management strategies, drafting privacy and security policies; negotiating complex data agreements with unique data privacy questions; and ensuring compliance with state and federal laws such as HIPAA and HITECH; 42 CFR Part 2, state laws and guidance governing privacy, security and breach notification; and the Children’s Online Privacy Protection Act.

In addition to her work as a lawyer, she has taught medical ethics at a large state university and sits on the ethics committee of a nationally-ranked children's hospital.

Experience

  • Energy and Natural Resources Representing oil and gas, gold, silver, trona ore, potash, copper and nickel mining companies operating on BLM and USFS land in Colorado, California, Nevada, Minnesota and Arizona, on matters arising under federal land management and environmental statutes, the General Mining Laws, Mineral Leasing Acts and counterpart state laws.

  • Representing one of the world’s largest oil industry service companies in connection with development of hydraulic fracturing disclosure and methane emission regulations in Colorado. This included securing permits for a water recycling facility to serve oil and gas well drilling contractors – a first of its kind operation – under Colorado recycling regulations.

  • Successfully negotiating major settlement with Mine Safety and Health Administration to avoid a crippling “pattern violator” designation for large Western mining client.

  • Handling multiple unwarrantable failure and flagrant citations issued by MSHA and litigating multiple employment discrimination claims under Section 105(c) of the Mine Act.

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