By Brian Hendrix
MSHA seems intent on changing the rules for emergency escapeways and the use of refuge chambers in metal and non-metal mines. You may be asking, how do I know this? MSHA hasn’t issued any guidance, posted anything to its website, issued any press releases, or used its new Twitter account to tweet out a notice.
So, how do I know about this? The first sign was enforcement. Over the last couple of years, MSHA cited a number of mine operators for alleged failures to site refuge chambers within 1,000 ft. of every working area or face when the primary and secondary escapeways are more than 1,000 ft. away from the face or working area. These enforcement actions weren’t confined to a particular district, although the Western and Rocky Mountain districts seem to be leading the charge. MSHA claimed that these operators were in violation of 30 C.F.R. § 57.11050. In its entirety, 30 C.F.R. § 57.11050 provides that:
(a) Every mine shall have two or more separate, properly maintained escapeways to the surface from the lowest levels which are so positioned that damage to one shall not lessen the effectiveness of the others. A method of refuge shall be provided while a second opening to the surface is being developed. A second escapeway is recommended, but not required, during the exploration or development of an ore body.
(b) In addition to separate escapeways, a method of refuge shall be provided for every employee who cannot reach the surface from his working place through at least two separate escapeways within a time limit of one hour when using the normal exit method. These refuges must be positioned so that the employee can reach one of them within 30 minutes from the time he leaves his workplace.
After reviewing the standard listed above, you may be thinking: It doesn’t state anything at all about putting a refuge chamber within a 1,000 ft. of every working place. You’re right, it doesn’t. That’s almost certainly what the mine operators that MSHA cited for violating 30 C.F.R. § 57.11050 also thought. When these mine operators pointed this out to agency officials and pushed back against the violation claims, MSHA vacated the citations. When confronted, bullies usually back right off.
That brings us to the second sign that MSHA had a plan for 30 C.F.R. § 57.11050. Well, in truth, it wasn’t a really a sign. It was much more direct than that. It was actually a statement, a speech. At a trade association gathering several weeks ago, a senior MSHA official explained that MSHA had a Program Policy Letter ready to go that addressed various issues related to escapeways and refuge chambers. He stated unequivocally that the Program Policy Letter required refuge chambers to be located within 1,000 ft. of every working face or workplace when the two escapeways are 1,000 ft. or more away from a working face or workplace. In other words, miners must have two separate ways to get to the surface from any place they’re working in the mine or a refuge chamber no more than 1,000 ft. away.
Why? Because that’s the rule in coal. Well, why is that the rule in coal? When it adopted that rule in coal, MSHA cited to NIOSH’s research. However, MSHA didn’t pay NIOSH much heed. In its research, NIOSH explained that “an analysis of past disasters as well as various probable scenarios provides conflicting evidence to support any particular location for refuge alternatives.” NIOSH’s research suggested that “refuge chambers be located a minimum of 1,000 ft. from the working face and in some cases as far as 2,000 ft.” NIOSH also made it clear that “the maximum distance from a working section to the refuge chamber . . . should be based on projected travel time, rather than actual travel distance.” MSHA didn’t agree, and it didn’t bother to really explain why.
Why does MSHA think the one-size-fits-all, “1,000 ft. rule” is appropriate for all underground metal and non-metal mines, under all circumstances? MSHA hasn’t answered that question. Answering that question with something more than “because we say so” will require work, work that MSHA hasn’t done. Near as I can tell, MSHA didn’t plan to do that work. Prior to the election, I think MSHA confidently assumed that “because we say so” would be enough.
MSHA may believe that “because I say so,” coupled with a citation to NIOSH’s research in coal, would still be enough to justify a 1,000 ft. rule for metal/non-metal mines. However, NIOSH stated that “the underlying differences between mining sectors are significant and practices in one sector cannot be generalized to the other.” MSHA also knows that other countries have researched the issue. For example, 1,000 ft. is not the rule in Australia, and MSHA is well aware of the Australian research and guidance on refuge chambers in metal/non-metal mines.
So, MSHA doesn’t have any real empirical support for a 1,000 ft. rule, and it hasn’t bothered to address or consider the host of significant (and very obvious) concerns about the feasibility of compliance with such a rule. Those are a couple of the major substantive problems with the rule, but MSHA also has a significant procedural problem.
As I mentioned earlier, a senior MSHA official said that the agency intended to adopt the 1,000 ft. rule by way of a Program Policy Letter, not by notice and comment rulemaking. He explained that MSHA did not want to promulgate the 1,000 ft. rule via the rulemaking process because rulemaking takes too much time. While I applaud his candor, MSHA lacks the authority to adopt a new rule like this one on the industry by fiat. When it believes a new rule is in order, the law requires MSHA to engage in notice and comment rulemaking. “It’s too hard” or “it takes too long” isn’t an excuse for ignoring the law.
The new administration has yet to appoint a new Assistant Secretary for MSHA, but the senior MSHA official I mentioned earlier did state that the Program Policy Letter is on hold until the Trump administration has a chance to review it. Additionally, several industry associations and mine operators have asked MSHA to at least meet with all the stakeholders before the agency takes any further action.
At this point, I think it is safe to assume that MSHA won’t be releasing a Program Policy Letter imposing the 1,000 ft. rule in the near future. Nevertheless, I do expect MSHA to pursue changes to the emergency escapeway and related rules, to focus enforcement on those rules, and to use its approval authority for escape and evacuation plans to impose new requirements on operators.
Brian Hendrix, a member of Husch Blackwell’s Energy & Natural Resources group, advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He has extensive experience with federal and state agencies and has represented numerous clients in manufacturing, natural resource production and service-related industries. [email protected], 202-378-2417.