Following in the wake of multiple federal agencies having issued a long list of expansive deregulation measures aimed at fulfilling President Trump’s aggressive policy agenda, the Mine Safety and Health Administration (MSHA) in July unveiled 18 rulemaking proposals aimed at altering and updating its overall regulatory scheme.
According to the U.S. Department of Labor (DOL) agency, these changes will serve to eliminate outdated or unnecessary standards that currently exist; reduce the compliance burden on mine operators in regard to existing regulations, and significantly curtail the authority of the agency’s district managers’ ability to include discretionary requirements in ventilation, roof control and approval of training plans.
Or, as Christopher Peterson, an attorney with the Fisher Phillips law firm, characterized the action, “DOL recently launched one of the largest deregulatory efforts ever by identifying dozens of regulations slated for the chopping block or significant modification—and MSHA joined the party.”
The change limiting the responsibilities of district managers has proven to be the most controversial of the MSHA proposals so far. These managers are distributed in six offices across the country and are responsible for all mines operating within those specified regions. They head a team of inspectors who conduct inspections, investigate accidents and supply guidance to mine operators.
The new proposal would shrink the broad authority MSHA district managers have had until now to require changes or additions to training and retraining programs for miners beyond criteria set in federal regulations. If adopted as it currently stands, mine operators would no longer need to include plan requirements that are not already specified in the law or federal regulations.
The basis for the change is the new agency leadership’s concern that the rules granting district managers “nearly unlimited discretion” in actuality violate the law, the Appointments Clause of the Constitution and the Administrative Procedure Act, according to attorneys Sierra Vierra, Janell M. Stanton and Karl F. Kumli of the Jackson Lewis law firm.
“If district managers’ authority is curtailed, training content and approval procedures could shift, potentially simplifying plan approvals,” they say.
This change also would eliminate provisions that allow MSHA district managers to require changes and additions to training programs conducted by mine operators. Various regulations give the district manager broad authority to add regulatory requirements to the training plan, which are neither described nor required, MSHA’s new leadership argues.
In addition, MSHA announced that it is proposing revisions of the roof control plan regulations and ventilation plan approval criteria to eliminate these district managers’ authority to impose additional plan measures or provisions applying to them.
Targeting Outdated Rules
The Jackson Lewis attorneys also note that among the more consequential proposals is the agency’s proposal that aims to streamline compliance requirements related to diesel particulate matter (DPM) exposure in underground metal and nonmetal (MNM) mines. (These provisions do not include coal mines).
If adopted in the final rule, this change would reaffirm the 2008 permissible exposure limit of 160 micrograms of total carbon per cubic meter of air that had been adopted during President George W. Bush’s Administration.
“MSHA proposes eliminating outdated and inapplicable provisions that no longer reflect current enforcement practices,” the Jackson Lewis attorneys observe. Fisher Phillips’ Peterson also agrees that these revisions would streamline the requirements for DPM for underground MNM mine operators while maintaining the same level of protection for miners.
Other proposals intend to remove outdated requirements regarding blacksmith shops located at surface metal and nonmetal mines, and requirements for the use of permissible electric face equipment in coal seams above the water table where there is less possibility of methane release.
Another change would allow electronic access to all hazard communication (HazCom) materials at no cost to miners. The current rule requires paper access be available. “This change would ensure miners have access to information about the chemical hazards where they work while reducing paperwork burdens for operators,” Peterson believes.
In addition, flame safety lamps, which are considered an outdated technology, would be removed from the list of permissible electric face equipment that can be operated in underground coal mines, as would duplicative requirements for electric cap lamps and other electric lamps in underground coal mines. Another proposal would remove duplicative requirements for aerial tramways and drilling operations.
Also slated to be ended are requirements for the final mining of pillars as the mine retreats out toward the original mine opening, and trolleys, both of which also are no longer being used in mining operations. Other targets for elimination include outdated requirements for the approval process applied to conveyor belts used in underground coal mines.
To modernize surveying practices, MSHA proposes allowing the use of electronic surveying equipment in high-hazard areas of underground coal mines. Currently, mine operators must petition MSHA for permission to use such equipment due to the risk of explosion or fire, the Jackson Lewis attorneys note.
“MSHA’s proposed rulemaking reflects a shift toward modernization that could reduce compliance burdens in some areas,” they explain. “However, employers in the mining industry should not assume these proposals mean fewer obligations.”
They also warn that employer programs may need updates to reflect permitted use of modern technology, including electronic surveying tools and digital access to safety documentation, if and when the proposals are finalized.
Thus far the MSHA list of proposed changes has drawn little public attention or criticism. As of this writing—a month after the 15 changes were proposed by the agency—the industry’s most prominent union, the United Mine Workers of America, has yet to comment on them, either positively or negatively.
