The Mine Safety & Health Administration (MSHA) and Occupational Safety & Health Administration (OSHA) began to take shape this year under the Biden administration.
Both agencies confirmed assistant secretaries, and their enforcement and rulemaking goals are becoming clear. The agencies laid the groundwork for a number of areas in 2022. Expect these to be priorities in 2023.
MSHA
• Training for miners & contractors. Under the Obama administration, MSHA tended to issue a similar citation in almost every serious accident or fatality for an alleged failure to provide adequate task training to injured miners.
Even if the mine had a task training record for a miner, it was common to see this citation issued based on MSHA’s position that the accident would not have occurred had the task training been adequate. This was a bit of a self-fulfilling prophecy, as MSHA could – and largely did – claim it in all accident enforcement.
This trend cooled during the Trump administration. Task training was still a common citation – especially in accidents – but it was not an automatic violation issued to operators.
MSHA is now focusing on contractor training, and it has not forgotten about non-contractors. It is emphasizing miner training and task training as part of a special campaign.
MSHA is also ramping up efforts to empower miners to voice complaints about training – or a lack thereof.
• Silica. MSHA continues to draft a new respirable crystalline silica (RCS) rule, as well.
It is likely the administration will produce a proposed rule and push it through to a final state. While little is known about the details of the proposed rule – or if it will be two distinct rules for coal and metal/nonmetal – it is anticipated that MSHA will announce a permissible exposure level (PEL) of 50 micrograms per cubic meter.
Also, MSHA unveiled a silica enforcement initiative in 2022. Coupled with increased health sampling, the agency says it could inspect mines with overexposures beyond the MSHA PEL of 100 micrograms per cubic meter every 15 days.
Additionally, MSHA instructed inspectors to utilize 104(b) orders for failure-to-abate conditions when the overexposure could not be completed in the time MSHA set.
OSHA
• Severe Violator Enforcement Program (SVEP). OSHA’s “bad actor” category was modified to make entry much more likely for the nation’s employers.
Previously, an employer had to receive two willful or repeat violations of “high emphasis standards” to qualify for the program. The high emphasis standards almost always aligned with National Emphasis Program (NEP) standards, but that is no longer the case.
Now, any two willful or repeat violations will induct employers into SVEP. The violations no longer need to be of high emphasis standards. This change makes it much easier for employers to fall into SVEP.
Once in SVEP, employers can expect mandatory follow-up inspections, mandatory inspections at sister facilities, inclusions on OSHA’s publicly avoid bad actor list, and corporate-wide abatements with the likely inclusion of required third-party audits.
Employers must understand the importance of managing OSHA inspections and contest citations with SVEP in mind. Simply accepting a citation with a penalty reduction from the agency may be setting yourself up for a repeat citation.
• Heat-related illness & stress. OSHA is currently working to develop and finalize a rule for heat illness in outdoor and indoor workplaces.
Additionally, OSHA released an NEP on heat illness, augmenting the inspection and enforcement of heat-related injury and illness at workplaces while rulemaking progresses.
This is likely OSHA’s top priority in rulemaking and enforcement in the foreseeable future because the weather continues to deliver extreme temperatures and potential hazards.
In fact, combating heat illness is part of the Biden climate agenda. All construction operations are included in the OSHA NEP, and while MSHA does not have a rulemaking in progress on heat illness, it is beginning to warn employers of the need or expectation to consider heat hazards at MSHA sites.
Conclusion
The third year of an administration is usually the most active when it comes to rulemaking.
MSHA and OSHA now have confirmed leadership in place, and we can now see their priorities for the coming years. Typically, as with previous administrations, we are at a point where a spike in enforcement usually occurs. Employers must be ready for an active 2023 from both agencies as it relates to rulemaking and enforcement.
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.
Featured photo: iStock/gobalink