Jackson Kelly PLLC

Workplace Safety and Health News Alert


January 9, 2017

For clients and friends of Jackson Kelly PLLC
Volume 13, Number 1
©2017 Jackson Kelly PLLC

Happy New Year! Both the Occupational Safety and Health Administration (“OSHA”) and the Federal Mine Safety and Health Administration (“MSHA”) have been busy clearing out any lingering rulemaking or policy decisions before the end of the current Administration.

For the new Administration, here is our wish list of priorities:


  • Fill the vacancy on the Commission with a view towards establishing a check on the power and authority of MSHA.
  • Stop regulating through policy guidance and follow the established formal rulemaking process.
  • Establish a meaningful conferencing process prior to the issuance of proposed penalties.
  • Return the development and implementation of mine plans back to an operator?specific approach where there is a fair weighing of all evidence concerning the suitability of the plans for the particular mine, rather than a one?size?fits?all approach.
  • Rescind the respirable dust rule to review and consider the empirical data and suggested alternatives provided from industry that illustrated the unworkable nature of the rule and the better means of achieving the same results.
  • Redefine tests for: (1) what constitutes “interference” under § 105(c) of the Mine Act so an operator’s intent is considered; and (2) what constitutes “significant and substantial” to be consistent with the particular facts of a violation rather than the hypothetical “what-ifs.”
  • Establish and adhere to real timelines for special investigations.


  • Return to more collaborative programs that recognize excellence in safety instead of focusing solely on enforcement programs.
  • Return to a three-year look back for all repeat violations. The current policy of five years unnecessarily punishes employers making changes and improvements in their safety programs.
  • Do not restrict an employer’s ability to drug-test its workforce. A drug-free workforce should be everyone’s goal.
  • Fill the vacancy on the Commission in order for the Commission to make decisions that do not end in a 1-1 tie.
  • Overhaul the severe violator program to include only final orders so employers are not denied due process and provide employers with a clear path for exit.

While there are likely more “wishes” that could be included for each agency, we see these as key issues for the new Administration. Please contact Jackson Kelly PLLC for help with these or other safety and health concerns.

Denver, Colorado

Responsible Attorney
Karen L. Johnston

The Jackson Kelly PLLC Occupational Safety & Health News-Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety & Health News-Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

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