By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”

We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”.  Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..”  The new section was effective in December 2018.

Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.

The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.”  The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.”  Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.

By Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced a Request for Information (RFI) on safety improvement technologies for mobile equipment and for belt conveyors, both at surface mines. 83 Fed. Reg. 29716 (June 26, 2018).

In its RFI MSHA notes that “mining safety could be substantially improved by preventing accidents that involve mobile equipment at surface coal mines and metal and nonmetal mines and belt conveyors at surface and underground mines.”  As part of an “Awareness Campaign” on mobile equipment and conveyor belts, MSHA is seeking information on the role of engineering controls that that might (1) increase the use of seatbelts, (2) enhance the equipment operator’s ability to see all areas near the machine, (3) warn operators of potential collision hazards, (4) prevent operators from driving over a highwall or dump point, and (5) prevent entanglement hazards near moving or re-energized conveyor belts.  MSHA indicates that it is requesting this information and data to reduce the risk of accidents and to improve miner safety.

MSHA is also indicating that it will hold stakeholder meetings to provide interested stakeholders with an opportunity to discuss and share information about the issues raised in the RFI.  It will publish a separate notice announcing the stakeholder meetings in the Federal Register at a later date.

Comments and responses to the RFI are due by December 24, 2018.  Submissions and responses to the RFI may be found at docket number MSHA_FRDOC_0001.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced its Final Rule on Examinations of Working Places in Metal and Nonmetal Mines. 83 Fed. Reg. 15055 (April 9, 2018).

The Final Rule, which will be effective on June 2, 2018, requires that:

  • Each working place be examined at least once each shift for conditions that may adversely affect safety or health of miners before work begins or as miners begin work in that place;
  • Mine operators promptly notify miners in affected areas of any conditions that may adversely affect their safety or health and promptly initiate appropriate corrective action. Notification is only necessary when adverse conditions are not promptly corrected before miners are exposed;
  • A record of the examination be made before the end of each shift, including the name of the person conducting the examination; the date of the examination; location of all areas examined; a description of each condition found that may adversely affect the safety or health of miners that is not promptly corrected, and the date of the corrective action (when that occurs); and
  • The record be made available to MSHA and miners’ representatives upon request.

The new rule imposes new requirements on mine operators, but is notably less burdensome that previous iterations of the workplace examination rule that has been in process for several years. For example, a previous proposed version of the rule would have required operators to examine workplaces before work began, whereas now the rule adds on “or as miners begin work in that place.” Also importantly, a previous version of the rule would have required operators to notify miners of all identified conditions, even if those conditions had been corrected before work began. Now, under the final rule, notification will only be required with respect to conditions that are not corrected. On a related note, operators need only make a record of conditions that are not promptly corrected.

Although the new rule is less burdensome on the regulated community than previous versions of the rule would have been, operators need to be mindful of potential pitfalls. The new rule appears to leave open the opportunity for MSHA to use operator examination records as “evidence” of a violation, or to support higher negligence findings. And of course the new requirements will provide MSHA with more bases to issue citations, since it will be a violation to not complete the various requirements under the new rule, including documentation of the date corrective action is completed for issues not promptly corrected.

MSHA is holding stakeholder meetings at six locations across the country to provide “outreach and compliance assistance materials on the Final Rule.” In addition, that Agency plans stakeholder meetings in Seattle, Washington, and at MSHA’s district offices by way of video teleconferencing at a later date.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJames L. Curtis, Ilana R. MoradyPatrick D. JoyceAdam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

Ann Rosenthal, Associate Solicitor for the Occupational Safety and Health Division, delivered remarks from the Solicitor’s Office and stressed that the change in administrations would not lessen enforcement efforts by OSHA.  Ms. Rosenthal discussed highlights from the Solicitor’s Office from the last year that included cases involving workplace violence, fall protection, and criminal penalties for employers.  It is anticipated that the Department of Labor will continue to focus its efforts on prosecuting these types of cases.  Ms. Rosenthal also indicated, while responding to questions, that the new administration is considering eliminating regulations under the beryllium rule and record-keeping rule.

Tom Galassi, Director, Directorate of Enforcement of OSHA, is also here and discussed key enforcement initiatives. Generally, Mr. Galassi echoed the general tone of Ms. Rosenthal’s remarks, emphasizing that OSHA is not slowing down in its enforcement efforts.  Accordingly, Mr. Galassi covered rising penalties, which continue to sharply increase.  Mr. Galassi highlighted that severe injury reports also continue to rise steadily, up from 10,887 to 11,590 reports last year.  Additionally, Mr. Galassi discussed two standards that were recently updated and have begun to be enforced by OSHA – the silica standard and walking work surfaces standard.  Both standards implement substantial burdens on employers and create compliance issues that impacts employers in a wide array of industries.

Mr. Galassi also stressed OSHA’s increasing budget and goal to increase the agency’s reach.  To that end the agency added over 70 employees last year comprised of enforcement and compliance personnel.  As such, employers should be sufficiently prepared for enforcement efforts that will continue to rise from these additional resources.

More to come from the conference tomorrow.…

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Bureau of Labor Statistics (BLS) has found a seven percent increase in 2016 fatal injuries reported over those reported in 2015. BLS noted that this was the third consecutive increase in annual workplace fatalities.  The statistics show an ongoing struggle for employers with a number of occupational safety and health health hazards.

By industry or workplace, BLS found that work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 40 percent of all industries.  Workplace violence and other injuries by persons or animals increased 23 percent, becoming the “second-most common work related fatal event in 2016.” For more information about workplace violence we have frequently blogged on the topic.  See for instance, Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know, OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence, Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers.

In addition, exposure to harmful substances or environments rose 22 percent.  “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since Census of Fatal Occupational Injuries (CFOI) began reporting data in 1992.”

Stunnningly, overdoses from the non-medical use of drugs or alcohol while on the job increased from 73 in 2011 to 217 in 2016. “Overdose fatalities have increased by at least 25 percent annually since 2012.”  Fatal injuries in the leisure and hospitality sector were up 32 percent and reached an “all-time series high in 2016.”  BLS concluded that this was largely due to a 40-percent increase in fatal injuries in the food services and drinking places industry.

Occupations with increases greater than 10 percent in the number of fatal work injuries in 2016 include:

  • Food preparation and serving related occupations (64 percent);
  • Installation, maintenance, and repair occupations (20 percent);
  • Building and grounds cleaning and maintenance occupations (14 percent); and
  • Sales and related occupations (11 percent).

Foreign-born workers made up about one-fifth of the total fatal work injuries. Thirty-seven percent of the workers were born in Mexico, followed by 19 percent from Asian countries.  Workers age 55 years and over had a higher fatality rate than other age group.

In response to the BLS Report, Loren Sweatt, Deputy Assistant Secretary for OSHA, commented that “[a]s President Trump recognized by declaring opioid abuse a Nationwide Public Health Emergency, the nation’s opioid crisis is impacting Americans every day at home and, as this data demonstrates, increasingly on the job.”  “The Department of Labor will work with public and private stakeholders to help eradicate the opioid crisis as a deadly and growing workplace issue.”

Employers in the industries identified in the CFOI Report, including oil and gas, construction, retail, mining, and others need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to ensure that company safety and health policies and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: President Trump’s selection for Administrator at MSHA has been confirmed this week by the Senate.

In a 52-46 vote, David G. Zatezalo, of West Virginia, was confirmed by the U.S. Senate this week, on November 15, 2017, to be Assistant Secretary of Labor for Mine Safety and Health (MSHA). The vote was along party lines, with Zatezalo  getting 52 Republican votes.

Zatezalo has deep roots in the mining industry, including a Mining Engineering degree from West Virginia University in 1977, and having become a Professional Engineer and received an award for high grade on the mining exam in 1981.  According to the Whitehouse press release, “Zatezalo began his mining career in 1974 with Consolidation Coal Company as a UMWA Laborer, became a foreman and subsequently General Superintendent for Southern Ohio Coal Company and General Manager of AEP’s Windsor Coal Company. He later rose to be Vice-President of Operations of AEP’s Appalachian Mining Operations.”  He had also served as Chairman, President, CEO, and COO of Rhino Resources GP, LLC, and as President of Hopedale Mining, LLC.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark and Ilana R. Morady

iStock_000009254156LargeSeyfarth Synopsis: The proposed MSHA rule would require mine operators to examine their mines and to notify miners of dangerous conditions.

MSHA announced today that it has formally submitted a proposed mine examination rule for publication in the June 8, 2016 Federal Register.  81 Fed. Reg. 36818.

The proposed mine examination rule (RIN:1219-AB87) would require metal and nonmetal mine operators to: (1) examine their facilities before a shift begins; (2) explicitly notify miners of any dangerous conditions found; and (3) record their examinations and establish processes to fix hazards.  The current rule allows operators to examine mines during a shift.

MSHA will gather input on this proposed rule in four meetings to be held in Salt Lake City, UT (July 19), Pittsburgh, PA (July 21), Arlington, VA (July 26) and Birmingham, AL (Aug. 4).

Last year, MSHA chief, Joe Main, stated that tightening mine inspection requirements was one of his highest regulatory priorities.

By Benjamin D. Briggs, Ilana R. Morady, and Kerry M. Mohan

To cap off the winter ABA conference, on Friday the conference discussed recent OSHA Review Commission decisions involving deference given to the Secretary’s interpretation, heat illness, and combustible dust.

Chief Judges Rooney (OSHRC) and Lesnick (MSHRC) discussed ethical and professional behavior before the Court, reminding attorneys to act appropriately and honestly in all circumstances. However, the main focus of today’s sessions was on MSHA’s Pattern of Violation program and OSHA’s proposed supplement to the recordkeeping regulations to enhance anti-retaliation protections for employees reporting injuries. Regarding MSHA’s Pattern of Violation program, the panel discussed the very real issue of being placed in the program without any citations being affirmed by the Judge, somewhat similar to OSHA’s severe violator enforcement program. Regarding the proposed supplement to the recordkeeping regulations, there was much discussion as to an employer’s ability to enforce safety rules even if an employee is injured, as well as an employer’s ability, and sometimes legal duty, to drug test employees following a workplace injury.

The day’s sessions, as with the rest of the conference, further demonstrated the sometimes deep divide that exists between employers, on one side, and OSHA and unions, on the other. Whereas OSHA and unions believe that further regulations are necessary to protect workers from potential retaliation, employers argued that the anti-retaliation provisions are sufficient as they currently exist. Nonetheless, employers will continue to face OSHA’s attempt to increase regulatory burdens.

Further, throughout the conference, employers repeatedly stressed the importance of OSHA’s consistence and predictability in issuing guidance and enforcement. OSHA, on the other hand, rejected employers’ request to provide bright line guidance, expressing its need for flexibility to address different factual situations. Consequently, we can expect seemingly inconsistent positions to continue to come from OSHA over the next year.

By Brent I. Clark, Kerry M. Mohan, and Craig B. Simonsen

The U.S. Mine Safety and Health Administration (MSHA) recently sent three mining operations notices of a pattern of violations (POV) of health or safety standards under section 104(e) of the Federal Mine Safety and Health Act of 1977 (Mine Act).  The MSHA POV screening this year was the first one conducted since MSHA’s revised pattern of violations rule (78 Fed. Reg. 5056 (Jan. 23, 2013)) went into effect on March 25, 2013.

Under the Mine Act, MSHA is authorized to issue a POV notice to mine operators that demonstrate a disregard for the health and safety of miners through a “pattern of significant and substantial” (S&S) violations and employee injuries. A POV notice is reserved for the mines “that pose the greatest risk to the safety of miners.” MSHA defines a significant and substantial violation as one that is reasonably likely to result in a reasonably serious injury or illness.

The Mine Act requires mines that receive POV notices to be issued withdrawal orders –effectively ceasing their mining operations – for all S&S violations. After no mine was placed on POV for the first 33 years after the Mine Act went into effect, these POV notices mark MSHA’s significantly enhanced and aggressive enforcement activities.

Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health, indicated “MSHA’s new POV rule, which we will vigorously enforce, enhances protections for miners and shifts the responsibility for monitoring compliance and taking action to prevent POV enforcement actions to the operator.” Among other things, the new rule shifted responsibility for monitoring compliance to the mine operator, and mandated that operators submit corrective action programs to proactively address issues that could lead to a POV.

Mine operators under this new age of MSHA enforcement need be ever vigilant in monitoring its compliance status and ensuring employees are properly trained to reduce injury rates.

By James L. Curtis and Craig B. Simonsen

The Bureau of Labor Statistics (BLS) recently released its preliminary “Census of Fatal Occupational Injuries.”  The findings show an increase of twenty-three percent in the oil and gas extraction industries, a fourteen percent increase in the mining sector, and a five percent increase in the construction industry.

The BLS Report indicates that 767 workers were killed as a result of violence and other injuries by persons or animals, including 463 homicides and 225 suicides. The total number of fatal work injuries after being struck by objects or equipment increased by seven percent.

As noted above, the number of fatal work injuries in the construction sector increased five percent in 2012. BLS says in its news release that “construction accounted for the highest number of fatal work injuries of any industry sector in 2012.”

Fatal work injuries in the mining sector increased fourteen percent from 2011. The number of fatal work injury cases in oil and gas extraction industries rose in 2012 by twenty-three percent — which represents a series high. This may be attributed to the increasing numbers of employees working in fracking operations. Fatal work injuries in support activities for mining increased nine percent.

In response to the BLS Report, Secretary of Labor Thomas E. Perez said in a press release that “[w]e can and must do better. Job gains in oil and gas and construction have come with more fatalities, and that is unacceptable…. Employers must take job hazards seriously and live up to their legal and moral obligation to send their workers home safe every single day. The Labor Department is committed to preventing these needless deaths, and we will continue to engage with employers to make sure that these fatality numbers go down further. “ Emphasis added.

Employers in these industries, oil and gas, construction, and mining, need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to insure that your safety and health programs, policies, and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.