US court decision could make workplace exams rule more stringent

The US Court of Appeals for the DC circuit has ordered the Mine Safety Health Administration (MSHA) to restore two key provisions of the workplace examination rule.

The National Stone, Sand & Gravel Association (NSSGA) says the case was brought about by concerns from United Steelworkers, United Mine Workers of American and other labour unions, and requires MSHA to revert to the rule as it was issued in 2017.

However, the DC Circuit decision is not yet final, and the 2018 version of the workplace exam rule remains in effect.

The 2017 version of the rule requires that each working place be examined at least once each shift ‘before miners begin work’ in that place and that the examiner record ‘each condition found [in the examination] that may adversely affect the safety or health of miners.’ NSSGA and member companies say this would increase administrative tasks without requisite safety benefits and undercut operator ability to manage for safety.

MSHA revised the rule in 2018 in response to industry concerns to broaden the time in which a competent person could conduct workplace exams from just before the shift to include ‘as miners begin work in that place’. Also, it reduced the type of hazards found during exams that require documentation to just those hazards that cannot be ‘corrected promptly,’ which MSHA interprets to mean those hazards that are not abated before workers are potentially exposed to the hazard.

The NSSGA emphasises that it was somewhat pleased with MSHA’s changes to the rule in 2018 but remains concerned that the rule over-reaches by dictating any specific times for conducting workplace exams or documentation requirements.

According to NSSGA, the court’s decision was based on a provision in the Federal Mine Safety and Health Review Act that prohibits MSHA from issuing any rule that reduces the protections afforded by an existing MSHA rule. The court examined MSHAs rationale expressed in the rulemaking records for the 2017 rule and the 2018 amendment and held that MSHA did not adequately explain how the 2018 amendment did not lessen the protections provided by the 2017 rule.

NSSGA’s separate litigation challenging the 2017 rule remains pending at the 11th Circuit Court of Appeals. That case has been on stay awaiting this recent decision from the DC Circuit. NSSGA is evaluating options for proceeding with that challenge in light of the DC Circuit’s decision. It is unknown whether MSHA will seek further judicial review of the DC Circuit’s decision.

NSSGA will continue to monitor this situation and report further developments.



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