November 13, 2017 Celeste Monforton, DrPH, MPH 0Comment

Workers who are employed at U.S. metal and aggregate mines are rejecting the Trump administration’s proposal to rollback safety protections. The United Steelworkers (USW) represents workers at some of these mining operations. The union submitted comments today to the Labor Department’s Mine Safety and Health Administration (MSHA) in opposition to a proposal by the administration to revise a regulation adopted at the end of the Obama administration.

The rule enhanced a requirement for mine operators to conduct an examination during each shift to identify safety hazards. The revisions mandate that the safety exam be conducted before miners begin working in an area. The change also requires that affected miners be notified about any hazardous conditions found which may adversely affect their safety or health, and for a written record be kept about the examination and corrective action taken.

A number of mining companies and trade associations opposed the MSHA rule. They said it would be too onerous, it would interfere with production, it was unnecessary, it was impractical, it was too costly, and more. Many of the assertions were misinterpretations of what MSHA proposed, which the agency clarified when it published the final rule in January 2017.  But the new regulation was issued too late in the Obama administration to shield it from scrutiny by Trump’s anti-regulatory minions. In October, Trump’s Department of Labor, led by Secretary Alexander Acosta, proposed reverting back to the outdated requirements.

Their plan, however, will run into some legal trouble.  The Mine Act is explicit. The Labor Department cannot adopt a regulation that will provide less safety protection to miners. The statute says:

“No mandatory health or safety standard promulgated under this title shall reduce the protection afforded miners by an existing mandatory health or safety standard.”

Referring to this provision of the law, comments by the United Steelworkers note:

“MSHA now proposes to step backward…  MSHA proposes to allow examinations to be conducted as miners begin work in a potentially hazardous area, instead of before they begin work. This is clearly less protective.”

The union goes on:

“MSHA justifies this change as more protective than the ‘existing’ rule only by claiming, without justification, that the January [2017] rule does not exist. Yet it was duly promulgated, based on sufficient evidence in the rulemaking record. It is true that MSHA has three times delayed the rule’s effective date, but that does not negate the existence of the rule.”

When it issued the final rule in January 2017, the agency described the safety rationale for requiring mine operators to keep written records of the safety examinations conducted. Among the benefits is being able to identify trends and the root cause of recurring hazards.

Opponents of the rule made a big deal of the recordkeeping provisions and now have the ear of Trump’s appointees. They’ve turned a common sense requirement on its head in order to justify their backtracking.

As the USW explains:

“Under the January 2017 rule, all adverse conditions have to be documented. Under the proposed revision, the competent person conducting the examination need not document conditions that are corrected ‘promptly.’  MSHA attempts to justify the change by claiming, without any evidence, that mine operators will be more willing to correct hazardous conditions if they do not have to record them. But mine operators have plenty of reasons to correct adverse conditions, beginning with a respect for human life, and it that is not enough, the threat of MSHA enforcement.”

“Additionally, the need to record even those adverse conditions that are corrected promptly could induce mine operators to investigate the underlying cause of those conditions, and take steps to prevent their recurrence. It is difficult to see how a mine safety and health program based on finding and fixing hazardous conditions could benefit from less information.”

President Trump is fond of saying that he has cut more regulations than any previous president. His Labor Department appointees are sitting on his anti-regulation bandwagon. But one sentence in the 1969 Mine Act—a sentence that prohibits regulatory changes that will diminish miners’ safety—should foil their plans to rollback worker protections.

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