Jackson Kelly PLLC

Workplace Safety and Health News Alert


December 11, 2018

For clients and friends of Jackson Kelly PLLC
Volume 14, Number 16
©2018 Jackson Kelly PLLC

As 2018 comes to a close and we look to the start of a new year, many Americans are thinking about their New Year’s resolutions.  The top resolution among mine operators should be to push for meaningful agency reform within the Mine Safety and Health Administration (“MSHA”).  With the current Administration at the halfway point of its term, many industry leaders are wondering why there has been so little change within MSHA despite promises of regulatory reform.  Now is the time for the regulated community to redouble its efforts to push for agency reform.

On February 24, 2017, the President signed Executive Order 13777, which directed each federal agency to review existing regulations to assess compliance costs and regulatory burden.  In response to that Executive Order, MSHA requested that the regulated community identify regulations that could be repealed, replaced or modified without reducing miners’ safety or health.  MSHA requested that recommendations should be e-mailed to the agency at: zzMSHA-OSRVRegulatoryReform@dol.gov.

Mine operators should continue to make use of this opportunity and send recommendations to MSHA.  To have the greatest impact, mine operators should collaborate to identify key issues where reform would benefit everyone.  Some industry leaders have identified the following issues that are ripe for reform:

  • Rescind Program Information Bulletin ("PIB") 14-04:  In June 2014, with little publicity, MSHA issued PIB 14-04, which announced that, from that point forward, MSHA policy documents such as Program Policy Letters ("PPLs") and Procedure Instruction Letters ("PILs") would no longer contain expiration dates.  PIB 14-04 also removed expiration dates for certain PPLs and PILs that existed at that time.  Prior to the issuance of PIB 14-04, any MSHA policy document included an expiration date after which it was no longer considered valid.  As a result of PIB 14-04, policy directives from the past administration remain in effect and will continue indefinitely.  MSHA should rescind PIB 14-04 so that previously issued policy documents are assigned an expiration date and new policy documents do not remain in effect indefinitely.
  • Revise the Part 100 Conferencing Procedures:  Conferencing has long been an area where operators have sought improvement from MSHA.  The process varies district-by-district.  Some districts decline to even afford operators a conference while others refuse to make meaningful changes to citations and orders, even when factual information is presented.  The process, as currently constructed, operates at the whim of the particular District Manager.  MSHA should standardize the conferencing process, both by guaranteeing operators the right to a Part 100 conference and by removing the decision-making authority from the district for changes to enforcement actions.  Instead, the process should include an independent review of the citation or order from outside the district where the issuing inspector resides.

These issues, of course, are not the only ones that operators should consider raising to MSHA in pushing for agency reform.  Operators should take full advantage of the agency’s call for recommendations for ways that it can better serve the regulated community.

Denver, Colorado

Responsible Attorney
Karen L. Johnston

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