D.C. Federal Circuit Court Reinstates the 2017 Workplace Exam Standard
As we all have heard and (hopefully) complied with, MSHA instituted the new workplace examination rule almost exactly one year ago, on June 2, 2018. This rule added additional requirements to workplace exams and has caused confusion since inception. To add further to the confusion, just recently on June 11, 2019, the Court of Appeals for the District of Columbia issued an opinion vacating the 2018 Amendment to the new workplace exam rule and reinstating the 2017 version of the rule.
For a little background, the rule that MSHA began enforcing in 2018 was not the first change to the workplace exam standard. Rather, MSHA published the first final rule on January 23, 2017 (the “2017 Standard”). The 2017 Standard contained much of what MSHA currently requires, including:
1) Examination of each working place before miners begin work in that place;
2) Mine operators to notify miners of adverse working conditions in their working places;
3) Completion of a record of examination to include: the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect safety or health and be supplemented with the date of corrective actions when necessary; and
4) Operators to make these records of examinations available to miners’ representatives and authorized representatives of the Secretary.
The 2017 Standard, although slated to take effect in May 2017, did not become effective until October 2, 2017. After a three-day period of effectiveness, MSHA withdrew the 2017 Standard and delayed the effective date again, planning to reinstate it on June 2, 2018.
On April 9, 2018, prior to reinstatement, MSHA published an amendment to the 2017 Standard — the 2018 Amendment. The 2018 Amendment contained two key changes to the 2017 Standard: (1) examinations could occur before or as miners begin work, and (2) Completion of a record to include…a description of each condition that could adversely affect the health and safety of miners and is not corrected promptly. This rule became the standard on June 2, 2018.
Following the institution of the new workplace exam rule, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, and the United Mine Workers of America International Union (“Unions”) filed a petition for review of the 2018 Amendment before the U.S. Court of Appeals for the D.C. Circuit, arguing that the 2018 Amendment violated the Mine Act’s no-less-protection standard from 30 U.S.C. § 811(a)(9). This no-less-protection standard states that no standard promulgated by MSHA can reduce the protection afforded miners by an existing mandatory health or safety standard — essentially, any new rule must equal or exceed the safety provided by any existing standard.
The D.C. Court of Appeals panel of three judges concluded that both changes the 2018 Amendment made to the 2017 Standard violated the no-less-protection standard (relative to the 2017 Standard). First, the panel reasoned if miners are beginning work while the operator is conducting the exam, it “does not allow for notification before exposure” and “there is a likelihood that miners may be exposed to an adverse condition before it is discovered”. Second, the panel rejected the recordkeeping requirement of the 2018 Amendment by finding that, MSHA had “no basis for its conclusion that those supported benefits [of the recordkeeping requirement] will equal or exceed those yielded by the 2017 standard”.
Based on this reasoning, the panel concluded that the 2018 Amendment was unenforceable. Further, the court concluded that if the 2018 Amendment is unenforceable, then the unmodified 2017 Standard is automatically reinstated and applies.
What Does This Mean to Mine Operators?
Although we may wish this case overturned the new workplace exam rule in its entirety, it does not do that. In fact, this case makes compliance more difficult. A competent person must conduct a workplace exam for each area of a mine site before any miners begin work in that place. It may be wise to institute a company policy that no miners are to enter the work area until the designated competent person has inspected the area for any hazards that may affect health or safety. Additionally, when completing the workplace exam, the competent person may no longer only document the conditions that cannot correct immediately. The competent person must now document all hazards affecting health or safety, regardless of when the hazard is corrected. While it may be difficult to uphold a citation based on a lack of documentation of a promptly corrected hazard, it can still give an inspector reason to issue a citation if there is any evidence of such conduct.
 Examinations of Working Places in Metal * Nonmetal Mines, 82 Fed. Reg. 7680, 7682 (Jan. 23, 2017).
 See Examinations of Working Places in Metal & Nonmetal Mines, 82 Fed. Reg. 46,411 (Oct. 5, 2017).
 See Examinations of Working Places in Metal & Nonmetal Mines, 83 Fed. Reg. 15,055 (Apr. 9, 2018).
 30 U.S.C. § 811(a)(9)
 United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO-CLC & United Mine Workers of Am. Int’l Union v. MSHA, No. 18-1116, slip op. at 7 (D.C. Cir. June 11, 2019).
 Id. at 10-11.