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DC Circuit Vacates MSHA's 2018 Exam Rule Amendment

Posted By Mark Ellis, Thursday, June 13, 2019

In a decision handed down earlier this week, the U.S. Court of Appeals for the District of Columbia Circuit vacated MSHA’s 2018 amendment of the agency’s 2017 final rule governing examinations of working places in metal and nonmetal mines (see attached).  The successful challenge was filed by the United Steelworkers and the United Mine Workers unions.

You may recall that from 1979 to 2017, MSHA required operators of metal and nonmetal mines to designate a competent person to examine each working place at least once each shift for conditions that may adversely affect safety or health.  The examination could occur anytime during the shift.  Operators were required to keep a record of examinations that were conducted.

In 2017, MSHA decided to impose more stringent requirements.  A competent person now needed to examine each working place at least once each shift before miners begin work in that place.  The new rule also required that the record of the examination include a description of each condition found that may adversely affect the safety or health of miners.

In April 2018, MSHA promulgated a final rule amending the 2017 rule.  Under the 2018 amendment, a competent person must examine each working place at least once each shift before work begins or as miners begin work in that place.  The 2018 amendment also modified the recordkeeping requirement, mandating that a record of the examination shall include a description of each condition found that may adversely affect the safety or health of miners and is not corrected promptly.

The unions challenged the 2018 amendment on the grounds that it violated the Mine Act’s “no-less protection” standard.  The Mine Act provides that “[n]o mandatory health or safety standard . . . shall reduce the protection afforded miners by an existing mandatory health or safety standard.”  Court found that the 2018 amendment does not allow for notification before exposure.  Notification as soon as an adverse condition is discovered results in a diminution of safety or health.  The Court also found that MSHA failed in the 2018 amendment to offer a reasoned explanation of why the examination and recordkeeping requirements of the 2018 amendment satisfy the “no-less protection” standard.

The Court vacated the 2018 amendment, which automatically resurrected the 2017 final rule.  The Court nevertheless ordered MSHA to reinstate the 2017 rule.  We expect that MSHA will do so in due course.  In the meantime, prudence dictates that operators follow the 2017 final rule (see attached).

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Tags:  examinations of working places; U.S. Court of Appe  MSHA 

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