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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Photo of Ariel Stavitsky Ariel Stavitsky

Ariel Stavitsky is an associate in Stoel Rives’ Environment, Land Use and Natural Resources group, with focuses in environmental and natural resource-related litigation, project permitting, and regulatory compliance counseling. She advises and advocates for clients across multiple industries, including energy generation, natural resource…

Ariel Stavitsky is an associate in Stoel Rives’ Environment, Land Use and Natural Resources group, with focuses in environmental and natural resource-related litigation, project permitting, and regulatory compliance counseling. She advises and advocates for clients across multiple industries, including energy generation, natural resource production, and manufacturing.

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Photo of Willa Perlmutter Willa Perlmutter

Willa Perlmutter chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group, has more than 40 years of experience as a litigator, focusing for the last 25 on defending mine operators across all sectors of the industry in administrative enforcement…

Willa Perlmutter chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group, has more than 40 years of experience as a litigator, focusing for the last 25 on defending mine operators across all sectors of the industry in administrative enforcement proceedings brought by the Mine Safety and Health Administration (MSHA) for alleged violations of the Mine Act.

In addition, she regularly counsels clients on a broad range of issues that affect their mining operations, from personnel policies and actions to compliance with a broad range of federal statutes. Willa regularly defends companies and individuals facing investigations and formal legal proceedings for alleged safety and health violations under both the Federal Mine Safety and Health Act of 1977 and the Occupational Safety and Health Act of 1970, whether those arise out of a catastrophic event, such as an accident, or in the course of a regular inspection by MSHA or Occupational Safety and Health Administration (OSHA). She has successfully defended a number of mining companies in whistleblower cases brought under the Mine Act.

Click here for Willa Perlmutter’s full bio.