As expected, the Occupational Safety & Health Administration (OSHA) and Mine Safety & Health Administration (MSHA) hit the ground running to start 2023.
OSHA announced its memoranda regarding instance-by-instance (IBI) enforcement, and MSHA updated its initiative on and announced rulemaking for respirable silica enforcement.
OSHA
Instance-by-instance citation policy. In late January, OSHA released two enforcement memoranda that will substantially sharpen OSHA’s enforcement teeth and increase the pain it can inflict on employers across the country. Specifically, OSHA dramatically expanded the circumstances by which it can issue IBI citations to employers, and also discouraged the grouping of similar citations under a single penalty.
IBI – or per-instance – enforcement is one of OSHA’s most powerful tools to ratchet up civil penalties. It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that requires individualized duties (such as training each employee, guarding each machine or requiring a hard hat for each employee).
As a result, rather than one citation with a single penalty for an employer’s failure to ensure that all employees wear a hard hat at a construction site, IBI enforcement allows OSHA to instead issue 10 citations with 10 separate penalties for each of the 10 employees observed without a hard hat.
OSHA’s announcement replaces the historical threshold for IBI citations with a much lower bar for OSHA to cite employers on a per-instance basis. Now, in addition to willful violations, OSHA can issue IBI citations for violations characterized as “serious,” and even some “other-than-serious” violations, so long as the violations are determined by OSHA to be or relate to “high-gravity” violations.
IBI citations still must legally be limited to standards that establish individualized duties rather than a general course of conduct. For now, OSHA’s enforcement memorandum limits IBI citations to violations involving certain high-emphasis hazards – falls from heights, machine guarding, lockout tagout, respiratory protection, permit-required confined space entry and trenching, as well as injury and illness recordkeeping violations that involve recordable injuries in those specific hazard categories.
MSHA
Silica rulemaking and enforcement plan update. MSHA’s silica rulemaking efforts have been in the making for quite some time. The most recent efforts have been ongoing since at least 2016 when OSHA’s rule on respirable crystalline silica (RCS) went into effect.
After waiting nearly a decade for a proposed rule from MSHA, employers may not have to wait much longer. On Jan. 18, MSHA sent its proposed rule on RCS in the mining industry to the Office of Management & Budget (OMB) for review. Submitting a proposed rule to OMB means MSHA has completed its proposal and is seeking approval to publish the proposed rule to stakeholders.
Based on historical precedence, employers and stakeholders should see MSHA’s proposed rule for RCS in the next few months. At that point, individual stakeholders, employers and industry associations, will have the opportunity to review the rule and submit comments to MSHA. Given the expected impact of this rule, the comment period and comment submission will likely be very active.
We still do not know if MSHA will propose different rules for coal and metal/nonmetal mines or surface and underground mines, or if there will be an action level or permissible exposure level (PEL) like the OSHA RCS rule. What we do know is that this proposed rule is likely to include a significant reduction in the PEL for miners, and use of personal protective equipment will not be a permanent solution to reducing exposure – meaning mines will need to work on engineering out exposure sources.
In the interim, MSHA continues its silica enforcement initiative. With this initiative, we are seeing enforcement tactics that could very well be memorialized in the RCS rule or guidance accompanying MSHA’s rule.
MSHA continues to target what they have deemed high-risk tasks, such as overburden removal or crushing operations, and are inspecting mines with repeated overexposures at 15-day intervals.
Conclusion
In our last column, we discussed that OSHA and MSHA would be very active in the coming year. While we are just a couple of months into 2023, we are seeing that prediction ring true.
Employers should keenly review their policies and safety practices to ensure compliance is met before they are in the position to challenge enforcement and prepare their sites and personnel for MSHA and OSHA inspections.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.
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