The Trump administration’s efforts to weaken a mining safety rule was reversed last week by the U.S. Court of Appeals for the District of Columbia. A three-judge panel ruled that allowing mine operators flexibility in when they can conduct inspections of mines for hazardous conditions would violate the Mine Act’s no-less-protection standard.
In its ruling on the 2018 revision to the Examinations of Working Places in Metal and Nonmetal Mines standard, the panel wrote: “Because the 2018 Amendment allows miners to work in an area before the examination is completed, there is the likelihood that miners may be exposed to an adverse condition before it is discovered.”
The judges said the Mine Safety and Health Administration’s (MSHA) reason for the rule change was “arbitrary and capricious” because it could not be reconciled with factual findings that the agency made in support of the 2017 Standard.
The judicial action came in response to a petition brought by the United Mine Workers of America International; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union; and the AFL-CIO/CLC.
“This is a victory for miners everywhere,” said UMWA International President Cecil E. Roberts. “Metal and nonmetal miners can now be more confident that their workplace is as safe as it can be before their shift starts, instead of learning about a safety hazard after they are already in the mine.
MSHA has required examinations of mine workplaces of mine operators for decades. From 1979 to 2017, the agency required “[a] competent person designated by the operator” to “examine each working place at least once each shift for conditions which may adversely affect safety or health.” The examination could occur anytime during the shift.
In 2017, MSHA decided to impose more stringent requirements that mandated a competent person examining each working place before miners begin work in that place, for conditions that may adversely affect safety or health.
The 2017 Standard was originally slated to take effect on May 23, 2017. MSHA twice delayed the effective date, then allowed it to take effect for three days, in October off 2017. The agency then temporarily withdrew the 2017 Standard and delayed its effective date for a third time.
In April 2018, under Labor Secretary Alexander Acosta, MSHA promulgated a final rule that gave mine operators the option to conduct examinations as miners begin work in an area.
The no-less-protection standard
The judges noted that the MSHA’s regulatory authority is subject to a unique limitation: a mandatory no-less-protection health or safety standard that prohibits rulemaking that would reduce the protection afforded miners by an existing mandatory health or safety standard.
“The no-less-protection standard occupies center stage in the case before us,” they wrote.
The judges were not swayed by the MSHA’s preamble to the 2018 Amendment, which expresses the agency’s intention that miners receive notification before being exposed to adverse conditions. “Mine operators must comply with the notification requirements of the 2018 Amendment, not MSHA’s statements “from the preamble, which itself lacks the force and effect of law.”
The court ordered the MSHA to reinstate the 2017 Standard.