Coal Tattoo

How aggressive is MSHA’s regulatory agenda?

Near the end of last week’s U.S. Department of Labor “web chat” about the Mine Safety and Health Administration’s latest regulatory agenda, the DOL webmasters posted this comment from Dennis O’Dell, MSHA chief Joe Main’s successor as health and safety director for the United Mine Workers:

While we are saddened as everyone with the number of fatals that have occurred this year, we hope that the aggressive regulatory agenda you have issued may help put a hault to this. It is also our hopes that the rest of the industry will support this endeavor to help make the mines and miners safer.

So … just how aggressive is the regulatory agenda that Joe Main and his boss, Labor Secretary Hilda Solis have put forth this time around?

Well, Celeste Monforton, writing on The Pump Handle blog, wasn’t too impressed:

By my calculation, the Labor Department has issued only four final rules on worker safety topics during President Obama’s tenure, two from OSHA and two from MSHA …

The two MSHA rules issued only pertain to underground coal mines—a very small segment of the overall US mining industry. One rule addressed safety hazards related to high-voltage continuous mining machines, based one a proposal published in 2004. The other is a rule issued just last month concerning rock dusting in coal mines. It’s a practice that helps to prevent coal dust explosions—like the disaster that killed 29 men last year at the Upper Big Branch mine—-and stems from recommendations made to MSHA in 2006 by NIOSH.

In this latest regulatory plan and agenda, MSHA doesn’t project issuing any new worker safety rules before December 2011 …

Some of the things MSHA has done with its agenda are just baffling, and for whatever reason, the folks at MSHA don’t seem to like to go into much detail in answering questions about their regulatory plans.

For example, take its plans to issue an Emergency Temporary Standard on proximity devices, to protect miners from the dangers of working around mobile equipment underground.

MSHA announced way back in December 2009 that it would be publishing such an emergency rule. Here we are in July 2011 … If this was really an emergency, posing “grave” threats to miners, why didn’t they act sooner?

At least MSHA has finally sent a rule to the White House for its approval. But as Joe Main explained last week, agency officials have decided to split this rule in half: They’ll issue an ETS for proximity devices on continuous mining machines, and then do through the regular rulemaking process for other mobile equipment.  So generally, this means that protections will be put on continuous miners much more quickly than other mobile equipment.

I asked Joe Main to explain, and this is what he said:

The Act requires that, in order to issue an ETS, the Secretary of Labor must determine that a grave danger exists and that the ETS is necessary to reduce that danger. The Secretary determined that miners in underground coal mines working in close proximity to continuous mining machines are exposed to grave danger. MSHA will develop a proposed rule to address pinning, crushing, and striking hazards that underground miners face when working near other mobile mining machines, such as shuttle cars and scoops.

And I tried to ask Joe about the time lag on this, saying:

The proximity device item has been on the agenda for quite some time — can you really classify this as an emergency, given how long MSHA has taken to even propose a rule?

This was the response I got:

The Secretary determined that miners in underground coal mines working in close proximity to continuous mining machines are exposed to grave danger. MSHA immediately began drafting the ETS to address that danger. The ETS is now at OMB.

I followed up:

You’re saying that miners working near equipment other than continuous miners are NOT at grave risk? Can you provide some data or figures that support that conclusion?

Joe said:

Ken, miners working near equipment other than continuous miners are at risk. The proposed rule would address that risk. The data supporting the proposed rule and the agency rationale will be included in the preamble to the proposal.

I tried again:

Joe, Could you give us just a little bit of a flavor for the data on that?

And Joe responded:

Ken, the data and the secretary’s rationale will be included in the preamble to the rule.

Now, in its earlier request for information on proximity devices, MSHA included only data concerning remote controlled continuous mining machines:

Since 1983, 31 miners have been killed in accidents where an RCCM has pinned, crushed, or struck the RCCM operator or another miner working near the RCCM. Thirty of these fatalities occurred in underground coal mines and one occurred in an underground metal/ nonmetal mine. MSHA reviewed these fatalities and found that 24 involved RCCM operators. Of these 24, 17 involved operators moving the machine; four involved operators performing maintenance; two involved operators performing non-maintenance tasks, such as positioning the boom or trimming the mine floor; and one involved an operator whose machine was struck by another RCCM. The remaining seven fatalities involved other miners in or around the RCCM: Four miners handling the machine’s trailing cable; two miners performing maintenance on the machine; and one miner who approached the RCCM without the operator’s knowledge (this fatality occurred in a metal and nonmetal mine). Of the 31 fatalities, five involved a remote control unit that malfunctioned or had a safety mechanism deliberately overridden. In addition, poor work practices were contributing factors in all of these fatal accidents.

I’m anxious to see the data MSHA has on other sorts of mobile equipment. If you look at last year alone, you see quite a number of fatalities that involved other sorts of underground equipment.

On other rulemaking issues, MSHA has abandoned its plan to write a new regulation to govern metal/nonmetal dams, saying:

At this time, MSHA intends to address safety concerns about dams at Metal/Non Metal mines through a non-regulatory approach MSHA is currently developing a guidance document.

MSHA doesn’t seem to be moving especially quickly with rulemaking items regarding coal company safety and health programs or civil penalties.

The new regulatory agenda says MSHA expects to finalize its rule to require tougher coal dust limits by April 2012. I wondered if Joe Main was frustrated by the amount of time it was taking to get that rule done. Joe said:

Thanks for your question, Ken. MSHA plans to move aggressively to complete the rulemaking to reduce black lung. The comment period has concluded and we will be moving forward to develop a final rule.

It was interesting that MSHA did include a date for when it hopes to get that rule out the door, though … on several other matters — pattern of violations and mine examinations — MSHA took the route that the Occupational Safety and Health Administration did, and declined to set goals for final rules.