United States: Unions Challenge MSHA's New Workplace Exam Rule For Metal And Nonmetal Mines

Last Updated: March 25 2019
Article by Lauren M. Marino

On March 12, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Mine Safety and Health Administration, USCA Case No. 18-1116.

The case involves whether the Mine Safety and Health Administration (MSHA), subsequent to the change in presidential administrations in January of 2017, improperly made two substantive changes to the recently promulgated Examinations of Working Places in Metal and Nonmetal Mines regulation. Counsel for the petitioners, representing union miners and steelworkers, argued that MSHA had amended the regulation in violation of (1) the Administrative Procedure Act's (APA) requirement of "reasoned decision-making" and (2) Section 101(a)(9) of the Federal Mine Safety and Health Act of 1977, which prohibits MSHA from promulgating a new regulation that would "reduce the protection afforded miners by an existing" mandatory health or safety standard."

The unions asked the court to vacate the current "2018 rule"—which allows workplace exams to be conducted as miners begin work and requires records only of those adverse conditions that have not been immediately corrected—and reinstate the "2017 rule" version of the regulation. The unions argued that the 2017 rule afforded miners more protection and that MSHA did not provide adequate reasoning for the changes it made in turning the 2017 rule into the 2018 rule.

The 2017 Rule

In the summer of 2016, MSHA issued a proposed rule that would replace the existing workplace examination standard at 30 C.F.R. §§ 56.18002 and 57.18002 that applied to metal and nonmetal mines. After a notice-and-comment period, the > final rule was published on January 23, 2017. The new 2017 rule was supposed to take effect on May 23, 2017, but MSHA delayed the effective date of the rule until October 2, 2017.

The 2017 rule had added new requirements to the existing regulation, including directives that workplace exams take place "before miners begin work" and that operators "promptly notify miners" of adverse conditions found, record any "adverse conditions" found, and record subsequent corrective action taken.

The 2018 Rule

Before the 2017 rule could take effect, however, MSHA announced two substantive changes to the rule that (1) permitted workplace exams to occur either before work began or as miners began work and (2) exempted from the recordkeeping requirements those conditions that the operation had promptly corrected. With those two changes, the 2017 rule became the "2018 rule."

In the preamble to the 2018 rule, MSHA explained that the "as work begins" option would give operators more flexibility to schedule exams and be as protective of miners as the 2017 rule. Moreover, MSHA explained that the "promptly corrected hazards" recordkeeping exception would incentivize operators to correct hazards immediately because, if a hazard was corrected, it need not be recorded.

On October 2, 2017, the 2017 rule technically went into effect, but three days later, on October 5, 2017, MSHA delayed the effective date of the 2017 rule to June 2, 2018, and, in the interim, reinstated the pre-2016 regulation. On April 9, 2018, MSHA published the 2018 rule in the Federal Register. The 2018 rule is current law and is codified at 30 C.F.R. §§ 56.18002 and 57.18002.

Oral Argument on the Workplace Examination Rule

At oral argument, the unions argued that the 2018 rule should be vacated: first, because MSHA did not engage in "reasoned decision-making" in making the two changes to the 2017 rule, in violation of the APA, and, second, because the 2018 rule afforded miners less protection than the 2017 rule—in violation of Section 101(a)(9) of the Federal Mine Safety and Health Act, which mandates that any new regulation afford the same or greater protection to miners as any existing regulations.

MSHA argued that the 2018 rule was, in fact, the 2017 rule with only "minor revisions" and asserted that the agency record adequately supported its decision to make the changes. MSHA heavily relied on its status as the federal agency with the "expertise needed to develop rules that protect miners" and said the court should afford the agency its due deference and not "second-guess" the agency's determination that the changes to the "2017 rule" were warranted.

One particularly interesting question came from Judge Katsas, who pondered how it could have been that in the 2018 rule, MSHA had required operators to "promptly" notify miners of any hazards (and MSHA defines "promptly" to mean before miners are exposed) while allowing mine operators to perform workplace exams as work began. In other words, if miners are already working in an area while it is being examined, are not the miners already exposed to any hazards found during the exam?

The court suggested that MSHA's definition of "promptly" actually means that operators may not send miners into an area until after the miners have been informed of any hazards—and that an operator may only inform miners of the hazards after the area has been inspected. MSHA seemed to concede that there must be some period between the time of an examination, the time during which an operator notifies miners, and the time miners enter an area. This discussion certainly raises the real possibility that the court will reject the 2018 rule's authorization of competent persons performing workplace exams as miners begin work in an area. The judges opined that the more prudent option might be to advise competent persons to perform the workplace exams before work begins so that notification may occur prior to any entry in the working place. This, of course, would be contrary to the flexibility that the industry had fought hard to obtain after the 2017 rule was promulgated.

The court concluded by asking about the potential of severing the two 2018 rule changes. One judge hinted at retaining the 2018 rule's exception relieving operators of the need to record hazards that are promptly corrected, while striking the 2018 rule's addition of "as work begins" from the clause defining when a workplace exam should be performed. This severance would leave the requirement of the 2017 rule that workplace exams should be done before work is performed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions