You know, some months when I sit down to write this column, the topics just present themselves to me. There\u2019s some new Commission case, or some development over at MSHA, the Mine Safety and Health Administration, that screams to be written about.<\/p>\n\n\n\n
The problem these days, though, is that while a lot is going on over at the Department of Labor, I just can\u2019t write about it. Key officials are still awaiting Senate confirmation, and many other senior staff members are leaving or have already left. Regulations and policies are being finalized or are in the process of being pulled back. Litigation is ongoing, and the administration\u2019s positions in those court cases are changing from day to day.<\/p>\n\n\n\n
Even if I were in a position to write a column that veers toward the political, I\u2019d be afraid to do it, since what I tell you today could and almost definitely would be outdated news by the time this goes to print.<\/p>\n\n\n\n
So, what\u2019s a smart, politically savvy lawyer to do? Welp, this feels like a good time to review basic principles and call it a day.<\/p>\n\n\n\n
For that reason, we\u2019re going to talk about MSHA and its general industry counterpart, the Occupational Safety and Health Administration (OSHA). MSHA oversees safety at every mine in the country. (\u201cMine\u201d being a very broad category that includes quarries, cement plants, pretty much any place where minerals are extracted or processed.) OSHA oversees safety in virtually everything else. (To be clear, who \u2013 MSHA or OSHA \u2013 has jurisdiction is not always clear, but that\u2019s something we can take up in another column.) MSHA has fewer inspectors and inspects fewer sites, of course, but it also has powers far disproportionate to its size. Let\u2019s review some key differences between the two agencies.<\/p>\n\n\n\n
First of all, OSHA doesn\u2019t inspect every facility that\u2019s subject to its jurisdiction. Put differently, if you work at an OSHA site, you might never see an OSHA inspector. Ever. Since the agency doesn\u2019t have the resources to inspect everybody, OSHA prioritizes its inspections.<\/p>\n\n\n\n
First, it will go out to inspect imminent danger situations, then to operations where there has been a fatality or a severe injury. Next, it will investigate worker complaints and referrals from other agencies. Only then will it conduct targeted inspections for industry sectors that OSHA thinks are particularly hazardous and at sites that have a high injury rate.<\/p>\n\n\n\n
MSHA, on the other hand, will inspect your mine without fail. If you\u2019ve got an underground mine, you\u2019ll see inspectors at least four times per year, and if you\u2019re a surface operation, it will be at least twice. You might see them more often than that, if there\u2019s an accident or a hazard complaint, but you can bet the farm that you\u2019re going to see them at least twice or four times a year.<\/p>\n\n\n\n
Also, MSHA has the right of warrantless entry. That means when an MSHA inspector shows up at your door, you always have to let them in. If you refuse, you\u2019ll be cited for impeding the inspection. However, that\u2019s not true for OSHA. If you get a knock on the door and it\u2019s OSHA, you have the right to send them away.<\/p>\n\n\n\n
Now, let me be clear: the inspector will almost certainly go to court and get a warrant that will force you to let them enter. (And I am absolutely not recommending that you routinely refuse entry to OSHA. Seriously, don\u2019t do that.) A day or two later, OSHA\u2019s going to show back up and demand to be let in, but you\u2019ve given yourself some breathing room, and they won\u2019t be able to cite you for impeding an inspection.<\/p>\n\n\n\n
The Mine Act is what we call a \u201cstrict liability\u201d law. That means that if there\u2019s a violation of the Act or one of its regulations, the mine operator is held responsible. No excuses, and no legal defenses. (Sure, we can challenge the negligence or the gravity of a violation, but if the violation occurred, from a legal perspective, the company is at fault.) The OSH Act is different. There are actual defenses an employer can raise if it gets an OSHA citation. The employer can say, for example, that it did everything right and that it had rules in place to prevent a violation, but that an employee ignored the rules, and that\u2019s why there was a violation. The employer can say that if it complied with the letter of the regulation, employees would have been exposed to an even greater hazard. Or the employer can argue that it was not feasible to comply with the cited regulation. All of these situations require the employer to prove certain things before they can use the defenses, but the point is that there are defenses in an OSHA case, whereas in an MSHA case, there are none.<\/p>\n\n\n\n
Section 5(a)(1) of the OSH Act is what\u2019s called the \u201cgeneral duty clause\u201d; the details of how the general duty clause is applied may be shifting under this Administration, but essentially it says that an employer is obligated to provide a safe workplace for its employees. Even if there is no specific regulation that tells you what you can or can\u2019t do, you\u2019ve got to make the place safe for your folks.<\/p>\n\n\n\n
The Mine Act doesn\u2019t work that way. For MSHA\u2019s purposes, you have to follow what\u2019s in the Act or, more to the point, do what the regulations tell you to. (There\u2019s an exception in the case of imminent dangers under Sec. 107(a) of the Mine Act, but that\u2019s also a topic for another time.) If there\u2019s no standard, or if you\u2019re in compliance with an existing standard, it doesn\u2019t matter if the inspector thinks there\u2019s a hazard. It\u2019s not a violation. (Let me be clear: you should always be on the lookout for and address hazards at your mine. But I\u2019m talking about compliance here, not safety. They\u2019re related, but different.)<\/p>\n\n\n\n
Here\u2019s another big difference: under Sec. 110(c) of the Mine Act, an individual company agent can be held personally responsible if it is found that that agent knowingly \u201cordered, authorized, or carried out\u201d a violation of the Mine Act or the regulation. An agent is basically someone who bears responsibility for the safety of the workforce, like a mine superintendent, but even a supervisor or fireboss can be found liable. In other words, if there\u2019s a knowing violation, the company isn\u2019t the only one on the hook: individual managers can be in the jackpot as well.<\/p>\n\n\n\n
That is not the case for OSHA violations. For those, only the company can be held civilly responsible for a violation. (Now, that\u2019s different if OSHA \u2013 or MSHA, for that matter \u2013 thinks there has been a criminal violation, but thankfully those circumstances arise only very rarely. We can talk about that, too, in another column, if you\u2019d like.)<\/p>\n\n\n\n
Phew. At least to me, the differences between OSHA and MSHA are pretty interesting (maybe that\u2019s just a geeky lawyer thing?), and I managed to get through this month\u2019s column without getting all political on you. That said, if you want to dish politics at any point, give me a shout. I\u2019m happy to talk. Just not in print.<\/p>\n","protected":false},"excerpt":{"rendered":"
You know, some months when I sit down to write this column, the topics just present themselves to me. There\u2019s some new Commission case, or some development over at MSHA, the Mine Safety and Health Administration, that screams to be written about. The problem these days, though, is that while a lot is going on over at the Department of…<\/p>\n","protected":false},"author":7,"featured_media":4194,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_themeisle_gutenberg_block_has_review":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[6],"tags":[837,1092,158,3992,426],"coauthors":[1649],"class_list":["post-10853","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law","tag-department-of-labor","tag-mine-act","tag-msha","tag-osh-act","tag-osha"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t