During the final months of 2019, the Mine Safety and Health Administration (“MSHA”) advised the mining community that it would pay attention to issues involving contractors working at mine sites, noting a disproportionate number of accidents involving contractor employees. According to information distributed by MSHA, 48% of mining fatalities in 2019 involved employees of contractors even though contractors made up only 25% of the mining workforce. As the New Year begins, MSHA has unveiled an initiative aimed at contractor safety and compliance. That initiative has consequences for both mine operators and contractors.
On Thursday, November 7, 2019, the Mine Safety and Health Administration (“MSHA”) held the second of five stakeholder meetings to discuss the implementation of the revised Workplace Examination standard for metal/non-metal mines, 30 C.F.R. §§ 56/57.18002 (“Rule”). The meeting focused on discussion of the two provisions from the January 2017 version of the Rule that were reinstated following the D.C. Circuit’s decision on June 11, 2019.
Unanimous decisions from the Federal Mine Safety and Health Commission are rare, but on July 11, 2019, the Commission ruled 5-0 to reverse an Administrative Law Judge’s finding of a fall protection violation in Sims Crane because the ALJ improperly shifted the burden of proof. Vacating the decision before it, the Commission found that the ALJ focused upon Sims’s counterarguments without determining whether the Secretary proved his claims by a preponderance of the evidence. The Commission then held that the Secretary failed to establish that a danger of falling existed as a violation of section 56.15005 requires. It vacated the Secretary’s citation without remand.
On June 11, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating the Mine Safety and Health Administration’s (“MSHA”) 2018 rule (“2018 Amendment”) entitled, Examinations of Working Places in Metal and Nonmetal Mines, codified at 30 C.F.R. § 56/57.18002, see 83 Fed. Reg. 15,055 (Apr. 9, 2018). In so doing, the D.C. Circuit ordered the reinstatement of MSHA’s January 23, 2017 version of the rule (“2017 Standard”), which revised the previously existing workplace examination standard at 30 C.F.R. § 56/57.18002.
The Mine Safety and Health Administration (MSHA) has launched a pilot program for Part 100 conferencing in the hopes of reducing the number of contested citations. Under the pilot program, which will run from April 1 – June 30, 2019, MSHA will hold conferences with operators with the understanding that the goal of the conference is to reach a negotiated settlement before the contest process begins. During the conference, the operator and MSHA would negotiate both paper changes and penalty amounts for all citations conferenced. If a resolution is reached, both parties would sign an agreement indicating the terms of the settlement and that the operator agrees not to contest the citations or assessments before the Federal Mine Safety and Health Review Commission (“FMSHRC”). If a settlement is not reached, the operator would retain its contest rights before the FMSHRC. The pilot program applies only to 104(a) citations that are not subject to a special assessment.