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Mine safety rule delayed one day before it was to go into effect
May 23, 2017

The U.S. Department of Labor delayed the agency’s Mine Safety and Health Administration’s (MSHA) rule that would change current rules for workplace examinations one day before they were to go into effect.

The rules which would have strengthened MSHA’s pattern of violations authority were issued on the final day of President Obama’s administration. They sought to build upon existing mine safety regulations by addressing the timing of workplace safety examinations and strengthening notification requirements.

The final rule includes five specific requirements, including conducting workplace examinations prior to miners beginning work (currently examinations can take place anytime during a shift), notifying miners of conditions that could adversely affect their safety or health, initiating corrective action promptly, properly recording the examination and making the examination record available to federal and miner’s representatives upon request.

The rules were put on hold following a joint motion by the industry plaintiffs and the U.S. Department of Justice, representing federal mine safety regulators.

“Rather than concurrently litigating and negotiating a possible settlement of the dispute, the parties are open to negotiating a mutually agreeable resolution that could avoid further litigation,” said the joint motion, filed earlier this month in U.S. District Court in Columbus.

The industry lawsuits, pending since late 2014 and early 2015, were filed to try to nullify changes the MSHA made to its “pattern-of-violations” authority, an enforcement tool that went basically unused for three decades. Efforts to reform MSHA’s use of its authority over repeat violators began after a series of mine disasters in 2006, but an actual rule change was not finalized until January 2013, under then-agency chief Joe Main.

Congress created the pattern-of-violations program in 1977, after finding that repeated citations and fines by federal inspectors weren’t enough to improve safety performance and prevent a series of explosions that killed 23 miners and three inspectors at the Scotia Mine in Kentucky in March 1976, The Charleston-Gazette reported.

Under the program, mines with a history of serious safety problems are kicked into a tougher enforcement bracket. Each time an additional serious citation is issued, that part of the mine is closed. Mines can have the pattern-of-violations designation lifted only if they go an entire quarterly inspection without a series violation.

Among other changes, the MSHA rule approved in 2013 would stop mine operators from using appeals of safety citations to avoid tougher enforcement and do away with MSHA warning letters that gave companies additional time to improve before facing enforcement.
The industry lawsuits allege that the MSHA pattern-of-violations rule goes beyond the scope of the agency’s legal rulemaking authority and deprives mine operators of due process of law.

In an earlier challenge of the MSHA rule, the 6th Circuit Court of Appeals said it did not have jurisdiction over the case, because the rule is not strictly speaking a health or safety standard. Challenges of MSHA health or safety standards would go directly to a federal circuit court, rather than district court, that 6th Circuit ruling said.

 

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