Draft Mine Exam Rule Blasted in Comments

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By Stephen Lee

Sept. 30 — A federal proposal to tighten mine safety requirements is drawing strong opposition from groups, who called it unnecessary at best and unsafe at worst.

If the Mine Safety and Health Administration’s proposal (RIN:1219-AB87) is finalized, metal and nonmetal mine operators will have to examine their facilities and fix problems before a shift begins. The current rule lets operators examine mines during a shift when workers may already be active in unsafe conditions.

Bruce Watzman, senior vice president of regulatory affairs at the National Mining Association, filed comments arguing that requiring an examination at the start of a shift “will create an undue burden on the operator and would not be considered a best practice by NMA members.”

Instead, exams should begin before work begins and then continue throughout the shift, Watzman said. Many mines are too big to be examined in a timely manner, he said.

The mine agency also can’t quantify the proposal’s benefits, making the rule premature, wrote Henry Chajet, an attorney with a focus on mining issues with Husch Blackwell LLP. He said that the agency’s “unusually compressed schedule” for the rulemaking means it won’t have all the information it needs to fully consider the proposal’s costs and benefits.

Existing Rule ‘Already Effective.’

Other pro-mining groups, such as the Nevada Mining Association, told the mine agency that the existing exam rules are already effective and shouldn’t be tinkered with. The new rule could actually make mines less safe, “as operators may be forced to depart from already successful examination practices solely to satisfy the requirements of the new regulation,” wrote the association.

Craig Ross, vice president of safety and health at Barrick Gold, wrote that the proposal’s requirement that operators promptly notify miners of any dangerous conditions is unnecessary if such conditions are corrected immediately.

“If the hazard has been corrected, there is no benefit requiring notification of affected miners,” Ross wrote.

Recordkeeping Provisions Called Onerous

One anonymous commenter, who identified him/herself as a miner, wrote that the rule’s recordkeeping mechanisms would be overly burdensome.

“For example, I get a work order to go fix a broken weld on a guardrail,” the commenter wrote. “That’s easy, I get it done in a jiffy. But, since it was written up on a workplace inspection, apparently I will have to go find that inspection, and document some stuff on it. The boss says date, time of the repair, and what I did all have to go on the new workplace inspection, by this law. But, if that handrail got written up by someone else on their inspection, I got to find that one too, in all the paperwork, and update that.”

This process could require the miner to “go back through all the inspections forms for a week, maybe, and write up the fix on each one. And, if I don’t, if I miss one because it got turned in late, it wasn’t in the pile I saw, whatever, then we get cited for failing to do the paperwork right.”

Safety Manager: Updates Overdue

One of the few comments supporting the proposal came from Terry Jones, who called himself a safety manager for “a privately owned lime and minerals organization” that he didn’t identify.

In Jones’s view, the current rule is “vague and is not adequate” to protect miner safety.

“My own organization knows the limitation of the current standard and although the bar is set low, is not interested in exceeding nor setting expectations above the minimum standard,” Jones wrote. “That is to say, meeting the standard is acceptable and doing more is not welcomed if it means more headcount or more money spent.”

Mine Agency Justifies Rule

In proposing its rule, MSHA noted that more than 60 percent of the 122 deaths in metal and nonmetal mines between 2010 and 2015 were linked to violations widely known to be potentially deadly.

“We believe that many of these fatalities could have been prevented with better working place examinations,” said mine safety agency chief Joseph Main when the rule was proposed in June. “MSHA has proactively provided notices to the mining industry on the need to improve mine site examinations, but now the time has come to require better, more effective examinations.”

The National Mining Association’s Watzman disputed MSHA’s 60 percent figure, saying it “is offered with little or no substantiation.”

The agency will now read the comments and incorporate them into its rulemaking deliberations. With the Obama administration leaving office in less than four months, however, the chances of the rule being finalized under the current president are low.

Raising concerns in public comments about draft rules becomes part of the record for possible later legal challenges to regulations under the Administrative Procedure Act.

Deadline to file comments on the guidance was Sept. 30. Other comments may have been filed before the deadline but weren’t posted to the online docket at press time.

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

Information about MSHA’s mine inspection rule is available at http://src.bna.com/g8x.

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