Matthew Korn presented this MSHA legal and regulatory update at the 2013 SE Mine Safety and Health Conference. Matthew reviewed the POV Final Rule, Part 50 Audits and medical records, recent Commission and ALJ decisions, miner's rights and whistleblower claims, the status of the backlog project, and the implementation of GHS/HazCom standards.

1. Fisher & Phillips LLP
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What’s New with MSHA:
Legal and Regulatory Update
Presented by:
Matthew R. Korn
C: (571) 455-6350; O: (803) 255-0000
mkorn@laborlawyers.com
www.workplacesafetyandhealthlaw.com
www.laborlawyers.com
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2. Who said the government never gets
anything done?
• POV Final Rule
• Part 50 Audits –
Medical Records
• Commission/ALJ
Decisions
• Miner’s Rights
• Backlog Project
• GHS/HazCom
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3. No More Warnings (or Due Process?)
MSHA’s Pattern-of-Violations Final Rule
(Effective March 25, 2013)
- No PPOV – Use Online Monitoring Tool
- No Final Order Requirement
- Moving Target for Screening Criteria
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4. POV Rule Under Attack
• NMA & NSSGA Challenge the POV Rule – 6th Cir.
•
POV rule exceeds Secretary’s authority under Mine Act
– Non-final citations and orders – 20-33% error rate
– 104(a) and S&S
•
Adoption of POV rule was arbitrary & capricious – impact on small businesses
•
POV rule denies operators due process of law
•
Screening criteria not subject to notice and comment rule-making
Fisher & Phillips LLP
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5. Part 50 Audits – Do I have to give MSHA
private employee medical records?
• According to the Commission and now the Seventh Circuit Court of
Appeals, the answer is YES – even without a warrant.
• 30 C.F.R. § 50.41 allows MSHA to “inspect and copy information
related to an accident, injury or illnesses which MSHA considers
relevant and necessary to . . . a determination of compliance with the
reporting requirements of this part.”
• Overall take-away – MSHA’s responsibility of ensuring the health and
safety of miners outweighs personal privacy rights and operator’s
Constitutional rights
Fisher & Phillips LLP
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6. Reporting Accidents and Injuries
• Part 50 Reporting
Requirements:
– Immediately Reportable
“Accidents” - 50.2(h)
– MSHA Form 7000-1 within 10
days
– MSHA Form 7000-1, Section D –
“Return to Duty Report” within 5
days
Fisher & Phillips LLP
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7. What’s the Commission been up to lately?
• Operator’s history of past violations may be
considered in determining whether a violation
is “flagrant” (up to $220,000 penalty)
• The term “flagrant” with respect to a violation
means a reckless or repeated failure to make
reasonable efforts to eliminate a known
violation of a mandatory health or safety
standard that substantially and proximately
caused, or reasonably could have been
expected to cause, death or serious bodily
injury.
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8. Commission Decisions Continued…
• Mach Mining - Unwarrantable failure
– “Good faith” belief is only the first step
– Was belief objectively reasonable?
• Performance Coal – Penalty determination
– ALJ must explain basis for penalty under 110(i)
– Secretary may seek higher penalties
Fisher & Phillips LLP
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9. ALJ Decisions
• Sunbelt Rentals – Workplace examination
– No adequacy requirement for 56.18002(a)
– Does not mean operator can inspect with eyes closed
• New NGC Inc. – Modification of standard
– Secretary sought to modify cited standard
– MSHA can allege multiple violations in citation
– Must be actual prejudice to operator
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10. Did he really get reinstated?
– Discharge for insubordination and use
of profanities.
– Complaint at safety meeting and
submitted safety issues on cards.
– Company argued that temporary
reinstatement should be tolled due to
layoffs.
– Not frivolously brought standard
applied, evaluations were subjective.
Fisher & Phillips LLP
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11. So you’re telling me not to sue our
former employee?
• Mine operator sued former miner
for filing “false” discrimination
complaint.
• MSHA decided not to pursue the
miner’s discrimination case
(after he was temporarily reinstated)
• Judge Feldman ordered Company
to withdraw complaint
Fisher & Phillips LLP
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12. New Guide for Miners’ Representatives
• Information regarding:
–
–
–
–
–
–
–
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Reporting hazardous conditions and imminent dangers
Accident investigations
Understanding the elements of discrimination under 105(c)
Health and safety training
Petitions for modification of a safety standard
Rights to information and records
Civil penalties
Requests under FOIA
• Designation of a miners’ representative
Fisher & Phillips LLP
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13. The end of the backlog, or just the
project?
MSHA backlog project
has suffered significant
cuts in funding . . .
What does this mean for
me?
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
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14. MSHA Permits Adoption of GHS
• PPL – August 13, 2013
– Operators who comply with OSHA’s HazCom standard are also in
compliance with MSHA’s HazCom Standards under Part 47
• OSHA Standard can be found at 29 C.F.R. § 1910.1200
• MSHA still requires compliance with all aspects of Part 47
– Update written HazCom program
– Conduct miner training
Fisher & Phillips LLP
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15. Fisher & Phillips LLP
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Q&A Period . . . Thanks!
Join us next week!
November 13, 2013 at 2:00 pm (EDT)
Guest Speaker: Karen Hilliard – Business Safety Services – Contractor Liability
Presented by:
Matthew R. Korn
C: (571) 455-6350; O: (803) 255-0000
mkorn@laborlawyers.com
www.workplacesafetyandhealthlaw.com
This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for
general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have.
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