Mine Inspection Rule Inches Forward Despite Industry Opposition

By Stephen Lee

A proposed rule to tighten mine safety inched forward Jan. 11, setting the stage for its release before the Obama administration leaves office—an outcome that once seemed unlikely.

The rule (RIN:1219-AB87) would require metal and nonmetal mine operators 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.

On Jan. 11, the White House’s Office of Information and Regulatory Affairs finished its review of the proposal and sent it back to the Mine Safety and Health Administration.

The mine safety agency must now respond to whatever changes OIRA recommended to the rule’s text. Those changes aren’t publicly disclosed, however.

Final Rule Now Appears Likely

Assuming the changes are only minor, the mine safety agency still has plenty of time to release a final rule before President Barack Obama leaves office on Jan. 20, said Sidney Shapiro, an administrative law professor at Wake Forest University, in Winston Salem, N.C.

Moreover, because the rule isn’t deemed economically significant, it can’t be repealed by the Congressional Review Act.

Celeste Monforton, a former policy analyst at the mine safety administration, told Bloomberg BNA that she had “every expectation” that the agency will work to complete the rule before time runs out on the Obama administration.

She also said that even if OIRA’s recommended changes are significant, the mine safety agency staff “is talented enough, and the folks in the standards office—particularly the economists—have so much of the data they need that they would work as hard as possible and put in as many hours as necessary to meet that Jan. 19 deadline. Especially when you have it hanging over your head that the new person will come in and say, ‘We’re not going to do any regulations.’”

However, Trump’s mine safety agency could simply decline to enforce the rule, or “cut sweetheart deals with people they catch,” Shapiro told Bloomberg BNA. Congress could also seek to kill the rule with an appropriations rider.

If the Trump administration wants to permanently kill the rule, it could launch a separate rulemaking to withdraw it. However, doing so would require the new administration to justify why it must be stricken.

Undue Burdens Alleged

The mining industry has vociferously opposed the rule, arguing that requiring an examination at the start of a shift creates an undue burden on the operator, in part because many mines are too big to be examined in a timely way.

Instead, exams should begin before work begins and then continue throughout the shift, mining companies have said.

Industry lawyers have also said the mine safety agency can’t quantify the proposed rule’s benefits and that the agency has been rushing to get the rule finished before gathering all the information it needs to assess its costs and benefits.

In defending the rule, the agency has said 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.

Mine safety agency chief Joseph Main said in a June statement that many of those deaths could have been prevented with better examinations.

“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,” Main said.

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

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

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