MSHA Announces Reinstatement of 2017 Obama-Era Rule on Workforce Examinations

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On Monday, September 30, the Mine Safety and Health Administration (MSHA) reinstated an Obama-era rule imposing heightened requirements for health and safety workplace examinations in surface metal and nonmetal mines. The reinstatement represents yet another volley in an already protracted regulatory process spanning two presidential administrations and multiple lawsuits.

The 2017 Obama-era rule, marking one of the administration’s final acts, required that:

  1. workplace exams had to be completed before miners begin work in the area examined;
  2. operators had to notify miners in the affected areas of conditions that might adversely affect health and safety;
  3. operators had to promptly initiate action to correct those adverse conditions;
  4. the workplace exam records had to include specific information, including, among other things, a description of all conditions found that might adversely affect health or safety and a notation as to when the corrective actions were complete; and
  5. records of the workplace exams had to be made available to MSHA and miner representatives upon request.

The rule initially went into effect on October 2, 2017. Just three days later, however, MSHA withdrew the rule, delaying the effective date to June 2018.

Following the 2017 election, the Trump administration published a revised rule that featured two key changes. First, examinations could be carried out either before work starts or as work was getting underway. Second, exam records no longer had to document adverse conditions, so long as the conditions were promptly corrected.

The tumultuous regulatory development spurred litigation, and both the 2017 Obama-era and 2018 Trump administration rules were challenged in court. A lawsuit seeking to invalidate the 2017 rule was stayed pending the D.C. Circuit Court of Appeals ruling on the 2018 rule.

In June 2019, the D.C. Circuit ruled against MSHA, concluding the 2018 rule failed to meet the Federal Mine Safety Act’s “no-less-protection standard”—the requirement that no health or safety standard can reduce protections already afforded to miners under existing standards. See United Steel Workers v. MSHA, No. 18–1116 (D.C. Cir. 2019). Most concerning, the 2018 rule “d[id] not allow for notification before exposure,” thereby “allow[ing] miners to work in an area before the examination is completed,” and posing “the likelihood that miners may be exposed to an adverse condition before it is discovered.” Thus, the court vacated the 2018 amendment and ordered MSHA to reinstate the 2017 iteration of the rule.

On September 30, 2019, MSHA issued notice in the Federal Register that the agency is reinstating the 2017 provisions, consistent with the D.C. Circuit’s holding. 84 Fed. Reg. 51400 (Sept. 30, 2019). The notice explains that the Obama-era rule is effective immediately and that MSHA will fully implement the changes over the next 90 days. During this time, MSHA will hold informational stakeholder meetings and provide in-person compliance and technical assistance to ensure that miners and mine operators understand the rule’s requirements. Revised compliance assistance materials, including MSHA’s inspector training materials, will be available on the agency’s website at www.msha.gov.

The lawsuit challenging the 2017 rule remains pending in the U.S. Court of Appeals for the 11th Circuit, and we expect the court will shortly schedule oral argument or request further briefing in light of the D.C. Circuit’s invalidation of the 2018 rule.

For now, mine operators should plan to comply with the reinstated 2017 rule, ensuring that workplace exams are carried out before miners begin work, and that exam records reflect all adverse conditions found, even if those conditions are fixed immediately.

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Ariel Stavitsky
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