Key industry developments surfaced in recent weeks pertaining to the Occupational Safety & Health Administration (OSHA) and Mine Safety & Health Administration (MSHA).
Almost eight months after President Donald Trump announced their nominations, the Senate confirmed David Keeling (OSHA) and Wayne Palmer (MSHA) to lead their respective agencies, as well as other key appointees who will shape the administration’s enforcement priorities and its regulatory – or deregulatory – agenda.
To finalize these approvals, the Senate exercised the “nuclear option” to allow confirmation of nominees by a simple majority. After the rule change, the Senate advanced 108 nominees, including several key workplace safety and health positions:
■ Jonathan Berry (Solicitor of Labor)
■ Jonathan Snare (Commissioner of the Occupational Safety & Health Review Commission (OSHRC))
■ Marco Rajkovich Jr. (Commissioner of the Federal Mine Safety & Health Review Commission (FMSHRC))
Keeling and Palmer inherit rulemaking and deregulatory agendas to manage, while also managing agencies with much leaner enforcement ranks following the departure of many compliance, safety and health officers and inspectors over the past year. Balancing the agencies’ missions with reduced personnel and budgets will provide an ongoing challenge – especially to MSHA, as the agency is required to complete minimum inspections of every mine in the country at least twice annually (and four times per year for underground mines).
Snare and Rajkovich play essential roles at the administrative bodies that hear challenges to OSHA and MSHA enforcement. Snare is now the only commissioner for OSHRC, leaving the commission without a quorum to hear cases.
Still, his confirmation will at least return some function to OSHRC, giving it the ability to directly review an administrative law judge’s decision. Rajkovich joins three existing commissioners at FMSHRC, where he will likely be designated to serve as chair.
End-of-year compliance considerations
Construction and mining operations begin to slow during this time of year – especially in more northern states. Now is typically the time of year when employers conduct annual training/retraining and evaluate their programs for necessary updates. Assessing your program can help prepare for better compliance outcomes in the coming year and set your sights on success.
Under MSHA, miners must complete annual refresher training regardless of whether they operate under a Part 46 or Part 48 training program. While employers should evaluate each program type to determine whether updates are necessary, Part 46 programs are more fluid because they do not require approval from an MSHA district manager.
With these programs, employers should ensure the training program meets all minimum training topic requirements as outlined in 30 CFR Parts 46 and 48. Additionally, companies should examine their task training programs.
Task training citations continue to be among the most cited types of MSHA training violations – often because the training is not specific enough or does not include sufficient detail for the tasks the employee will perform. It is also critically important to document task training.
Workplace exams
Another frequently cited standard is MSHA’s rule on workplace examinations.
Per the standard, employers are required to inspect every working area each shift before miners begin work in that area of the mine. MSHA often cites this standard when multiple defects or citations are found in a working area during an inspection, although employers should contest citations when the agency overextends or misapplies the rule.
The agency also frequently cites the workplace exam standard in conjunction with task training. As part of training – whether task training or training for all miners – it’s vital that employers consider including hazard recognition and identification training for workplace exams.
Completing and documenting workplace exam training can go a long way toward defending against not only allegations of inadequate workplace exams, but also MSHA enforcement actions claiming miners were not trained to conduct workplace exams.
Training and workplace exams are often MSHA’s “root cause” determinations in accident investigations. They are also frequently cited together when MSHA issues multiple citations in a given area. Completing this training for employees will better equip them to identify and address potential hazards in the workplace and help protect against MSHA citations.
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 nscala@connmaciel.com.