MSHA Releases Regulatory Agenda

Several Agencies Are Predicting A Very Active Summer And Fall On The Regulatory Front.

By Bradford T. Hammock

The U.S. Department of Labor published its most-recent Regulatory Agenda and, as is no surprise, several agencies are predicting a very active summer and fall on the regulatory front. As we approach the final 18 months of the administration of President Obama, operators should expect to see an increase in regulatory activity.

This administration has been working behind the scenes for several years to promulgate new regulatory requirements and these rulemakings are starting to come to fruition. Operators should continue to stay apprised of this regulatory activity and, if new rules are finalized, adjust their programs accordingly.

Two Final Rules

MSHA is projecting two final rules this year, including the release in December of an amended rule on assessing civil penalties. Under MSHA’s regular penalty assessment scheme, the agency allocates numerical points to various penalty criteria in proposing a fine for a violation of a mine safety or health standard.

The point total equates to a proposed fine from a penalty table. The agency, however, has proposed reallocating the weight of key criteria. For instance, the proposed penalty point structure gives increased weight to total negligence and violation history factors, while reducing the weight for mine size and gravity.

Some stakeholders have expressed concern with the new civil penalty scheme, because they believe it will lead to higher fines. Many operators have also objected to another provision in the rule that would restrict greatly the ability of the Federal Mine Safety and Health Review Commission to set the amount of final penalty assessments independently. This rule is quite controversial so operators should stay tuned and watch carefully how the rulemaking unfolds.

With respect to other regulatory activity, MSHA has indicated that it will release a final rule addressing fees for testing, evaluating, and approving mining products in August. In addition, it plans to issue proposed rules governing proximity detection devices in mobile machines underground in July and on respirable crystalline silica in April 2016.

Silica Rule

MSHA’s silica proposal will be watched very carefully. Many have predicted that the rule will be modeled closely off of OSHA’s proposed crystalline silica rule, which was published in September 2013.

In the same regulatory agenda, OSHA did not set a date for publication of a final silica rule. The agency has already taken extensive public comment on it and held weeks of public hearings. The regulatory agenda entry for silica noted that the Agency was analyzing comments at this time.

If MSHA follows suit and publishes a proposed silica standard that mirrors OSHA’s, operators can expect to see numerous new requirements on the horizon. Despite data from the Centers for Disease Control that the silicosis mortality rate in the U.S. has declined by 93 percent from 1968-2007 – falling from 1,157 cases in 1968 to about 150 cases in 2007, OSHA is proposing to reduce the permissible exposure limit for silica to 50 µg/m³ with an action level of 25 µg/m³ to trigger initial and periodic exposure monitoring.

Other elements of OSHA’s comprehensive proposal include the following:

Exposure Monitoring and Assessment. Provide exposure monitoring of employees who are or may reasonably be expected to be exposed to respirable crystalline silica at or above the action level of 25 µg/m³.

Employee Notification. Notify each affected employee in writing of the results of the monitoring or post the results in an appropriate location accessible to all affected employees. Whenever exposure is above the PEL, employers must describe the corrective action being taken to reduce employee exposure to or below the PEL.

Respiratory Protection. Provide respiratory protection: (1) where exposures exceed the PEL during periods necessary to install or implement feasible engineering and work practice controls; (2) where exposures exceed the PEL during work operations for which engineering and work practice controls are not feasible; (3) during work operations for which an employer has implemented all feasible engineering and work practice controls and such controls are not sufficient to reduce exposures to or below the PEL; and (4) during periods when the employee is in a regulated area or when an access control requires use of a respirator.

Medical Surveillance. Provide medical surveillance at no cost to the employee. Medical surveillance includes an initial medical examination and periodic medical examinations at least every three years or more frequently if recommended.

Hazard Communication. Communicate and train employees on the hazards associated with crystalline silica under the Hazard Communication Standard and ensure that each employee has access to labels on containers of crystalline silica and safety data sheets.

And these are just some of the provisions. For its proposal to the construction industry, OSHA has also put forth a somewhat unique approach to compliance with the revised PEL and exposure monitoring requirements.

OSHA has designed a “Table 1” for contractors, which sets forth specific job tasks, control measures and respiratory protection that, if followed, would constitute compliance with the PEL and monitoring requirements of the standard. Employers following Table 1 would still need to comply with the ancillary provisions in the rule. This specification option is designed to ease compliance for construction employers.

Many stakeholders who have reviewed the proposal, however, have expressed concern that its obligations are ambiguous and difficult to achieve.

It is hard to predict at this early stage whether MSHA would look to adopt a “Table 1” concept for the mining industry or stick with a traditional health hazard approach to regulating silica. Table 1 was an attempt by OSHA to respond to some in the construction industry that it was preferable to have the Agency identify specific engineering controls to implement for certain common activities.

Whether MSHA also views such an approach as useful for compliance remains to be seen. Regardless, if MSHA sticks to its announced regulatory agenda, we will know in a matter of months!

As we conclude the final 18 months of President Obama’s tenure, eyes should be firmly planted on MSHA – not just on enforcement, but on its regulatory initiatives, as well. The civil penalty rule is potentially very significant and any rulemaking on crystalline silica is sure to be closely watched.

Stay tuned operators – there is more to come.

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