While the New OSHA Silica Rule Has Our Attention, We May Not Notice Other Rules Coming Out That Could Have Significant Consequences.
By Mark Savit
By now, you will have been inundated with articles about OSHA’s new crystalline silica rule. The publication is more than 600 pages long and the coalitions are already forming to challenge the rule in court. For that reason, I think the last thing you need is another article on that particular rule.
But there are a lot of other things going on and the pace of new rules being issued is likely to increase. Why? Because it’s election season.
Every four years, and especially the eighth year of a two-term president, the resident administration realizes that for the last seven years or so, it hasn’t ever gotten around to issuing the rules it promised its supporters it would issue during the campaign. Sometimes, that’s actually not an accident because, well, you know how campaign promises can be. But most of the time, it’s nothing more than the result of inefficiency.
I recently attended a conference at which a number of high ranking MSHA officials spoke. During one question-and-answer session, they were asked about what rules might be expected in the coming months. In a show of frankness, the official who answered acknowledged that the administration was coming to a close, but that MSHA was working on trying to get a number of rules out before the change.
Of course, the official acknowledged that MSHA was “working on” a silica rule that would emulate the new rule issued by OSHA. However, given the timing, it seems extremely unlikely that MSHA could issue a silica rule of its own before the election.
There is simply not enough time for MSHA to publish a proposed rule, allow time for comment, consider the comments, craft a final rule for review by the Office of Management and Budget (OMB) and get it published before this administration ends. While they might be able to get a proposed rule out, what the next administration would do with that proposal is anybody’s guess.
There are two additional rules, however, that are worth watching for. First, MSHA proposed changes to its Part 100 penalty rules quite some time ago and has had the time to receive comments and prepare a final rule for review. When specifically asked about that rule during the convention, the word was that it was being worked on and MSHA hoped to get it out before the end of the administration. I got the feeling that it wasn’t quite a “done deal” yet, and there might not be a final penalty rule before the end of the administration.
If it is issued, however, it will be important. Those of you who have OSHA operations are already aware, no doubt, that OSHA penalties were raised by almost 80 percent, not by the agency, but by the Congress, eager to find additional sources of revenue. That’s right, the Republican-dominated Congress.
While I have heard some commentators suggest that the MSHA penalties would not rise much as the result of MSHA’s proposed changes to Part 100, computer modeling shows that they will rise somewhere between 200 and 400 percent. As we have found during our ongoing attempt to challenge MSHA’s changes to its Pattern of Violation rules, challenges to rules about penalties can get very complicated and drag on for inordinate amounts of time.
In other words, if the new Part 100 rules are issued, don’t count on the courts or congress to take any quick action to stall them. You will very likely be paying highly increased penalties before any challenge could possibly succeed.
Second, MSHA has announced that it intends to issue rules modifying the current workplace examination standard and specifically requiring task training for anyone conducting a workplace examination. The proposed changes would essentially codify the non-binding guidance that MSHA issued last fall.
This proposed change has far reaching, but not obvious, implications. As you may recall, the guidance that MSHA issued seemed to say that the negligence of hourly employees doing workplace exams would be attributable to the operator, thus potentially subjecting the company to higher penalties for inadequate workplace exams conducted by and hourly employee.
As the law currently stands, certain hourly workers can be considered “agents of the operator” and their negligence can be imputed to the company. The cases in which that has been found, however, have been limited to either hourly leadmen or (and this is where MSHA is coming from) certain hourly employees (including preshift inspectors and electricians) in coal mines, where the rules require that not just any hourly employee can perform those tasks, but only those who have been specially “certified” or “qualified” to do so.
Depending on how the task training rules are written, they could easily have the effect of imposing a requirement that workplace examiners in metal/nonmetal mines be specially qualified to conduct those exams.
Such a rule could have a number of consequences. First, it could impose a training requirement such that the only way to economically comply would be to hire additional employees whose primary or sole job would be to conduct workplace exams.
If not, it could by virtue of the nature of the training required, severely limit the number of employees on site who could conduct those exams. Finally, it could subject operators to greatly increased penalties and potential liability from inadequate exams conducted by an otherwise rank and file hourly employee.
I hate to be the bearer of bad news, but I am concerned that, while we are all busy figuring out what will happen with the OSHA silica rule, we will not notice that other rules are coming out that could also have significant consequences. At this point, there is very little that we can do, other than be vigilant and ready to act when and if any of these new rules are issued or proposed.
This is a bit ironic, because just as this is the season in which agencies rush to roll out new regulations, it is also the season when Congress, worried about alienating voters, ducks its collective head in the sand and backs away from taking any legislative action which might be in the least bit controversial. Funny, I guess, but not really surprising.