Mining industry stakeholders have long advocated for more readily available compliance assistance from the Mine Safety & Health Administration (MSHA).
They also have been pressing for better consistency in MSHA’s interpretations of the laws it enforces. Fortunately, following a recent announcement from the Department of Labor (DOL), improved compliance assistance may be coming.
What you missed
The Department of Labor unveiled on June 2 that it is committed to providing enhanced compliance assistance resources for the laws it enforces, detailing how to obtain opinion letters and access other forms of agency guidance.
The initiative is being implemented by five DOL enforcement agencies: the Wage & Hour Division, the Occupational Safety & Health Administration (OSHA), the Employee Benefits Security Administration, Veterans Employment & Training Service, and MSHA.
Some of these agencies will respond to stakeholder requests for guidance by issuing formal opinion letters or interpretation letters. These are official written opinions addressing specific sets of facts and providing guidance on how the agency will apply the law under those circumstances. They are issued in response to a written request and can help stakeholders – including workers, employers and unions – to understand their rights and responsibilities under the law.
OSHA has had a practice of issuing interpretation letters from time to time. These are like opinion letters.
MSHA has not issued these up until now, though – and it does not appear the agency will be doing so. Instead, the DOL announcement indicates that MSHA will provide compliance guidance through the MSHA Information Hub on the MSHA website.
The Information Hub
MSHA recently launched the information hub to provide easier access to already prepared compliance guidance and safety and health best practices on a variety of topics.
Much of what’s on the hub thus far has been on MSHA’s website for a while. Still, stakeholders may have an easier time locating what they want to know on the information hub.
The hub contains links to things such as MSHA’s Mine Data Retrieval System, required reporting forms, training resources, hazard communication reporting guidance, and MSHA fatality and other statistical reports.
The MSHA Information Hub is what its name implies: a way to locate currently available information on MSHA’s website. For more tailored compliance guidance, operators will still want to contact MSHA officials directly.
When doing this, the agency will generally suggest that operators ask an inspector – or, if necessary, reach out to the local field office or district office when they have questions.
Mine operators may also request MSHA to perform a compliance assistance visit (CAV). This is sometimes done when a new mine is opened or there has been a significant change to an existing mine – such as installation of a large piece of new equipment or other facilities.
Compliance assistance visits
MSHA is not required to conduct a CAV, but this can be a helpful process for mine operators where the agency has the resources to do so. In a CAV, MSHA inspects the new area or equipment and provides the operator with guidance on what needs to be addressed to correct what would be a violation of MSHA’s standards if the visit was an enforcement inspection.
Any operator doing a CAV will want to be prepared to implement the corrective action or have a dialogue with the agency about why a different approach is appropriate. Otherwise, MSHA may issue a citation if the condition is found again in an actual inspection.
Whenever an operator obtains guidance from MSHA on any legal compliance matter, there is always the chance the operator may disagree with what MSHA says. It also sometimes happens that an operator with mines in multiple districts will be faced with conflicting guidance from those different agency offices.
If the matter cannot be resolved at the field office or district office, then the operator may need to bring the issue to MSHA headquarters.
In cases where an issue with the proper interpretation of a safety standard cannot be resolved with MSHA, operators have another recourse: They can contest a citation and litigate the issue before the Federal Mine Safety & Health Review Commission.
Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.
