By Stephen Lee
A rule on hardrock mine safety inspections would be delayed and modified to satisfy industry concerns under a pair of Trump administration proposals.
The Mine Safety and Health Administration (MSHA) has proposed a five-month delay—until March 2018—of a rule ( RIN: 1219-AB87 ) that would require operators to inspect their mines every day before sending in employees to work. That would be the second time the agency has pushed back the start date of the rule, which was finalized Jan. 23.
MSHA also wants to modify the rule to allow operators to send miners into work sites while the safety examinations are being conducted, rather than waiting until they are completed. The exams still would have to be conducted at least once each shift, but operators wouldn’t have to record conditions that are fixed “promptly.”
The mining industry, including companies such as Pennsylvania’s Martin Stone Quarries, has strongly opposed the rule, while miners’ unions have backed it. One of the industry’s central arguments has been 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 quickly.
The rule, approved under the Obama administration, initially was supposed to take effect in May, but the Trump administration pushed that back until Oct. 2. Now MSHA wants to delay it until March 2, 2018, and is accepting public comment on the proposal until Sept. 26.
Delaying the rule’s start date would give MSHA more time to provide training and to conduct compliance assistance visits at mines nationwide, the agency said in a notice to be published in the Sept. 12 Federal Register. The agency also said it needs more time to train its own inspectors on the rule.
Further, letting miners work while exams are unfolding would give mine operators “additional flexibility in managing their safety and health programs and reduce regulatory burdens without reducing the protections afforded miners,” MSHA said in the Federal Register notice.
The exams would have to be conducted “in a time frame sufficient to assure any adverse conditions would be identified before miners are exposed,” MSHA said, and miners should be notified of any hazards as soon as possible.
Justin Winter, an industry attorney with Jackson Lewis PC, said the consensus among industry lawyers has been that MSHA, under President Donald Trump, will keep pushing the rule back at least until a permanent agency director is in place to make a final decision.
Trump named former coal executive David Zatezalo to be his MSHA chief Sept. 2. If the Senate confirms Zatezalo he will replace Wayne Palmer, who has served as the agency’s acting administrator since Aug. 21.
Mining companies have opposed the rule since it was proposed. At a public meeting at MSHA headquarters in July, some company representatives and industry lawyers complained that it’s often not possible to examine a mine in a timely manner.
And in a Sept. 11 client note, management-side law firm Husch Blackwell LLP wrote that the rule’s record-keeping and notifications are “impractical.”
But miners’ unions have said the rule is a good one because it focuses on prevention. Most mining accidents, including falls and electrocutions, can be prevented as a result of thorough mine exams, said James Frederick, assistant director of the United Steelworkers’ health, safety, and environment department.
MSHA isn’t providing a 30-day comment period, as seemingly required by the Administrative Procedures Act, on its delay proposal. Rather, the agency is only accepting comments on its delay proposal until Sept. 26, which is 14 calendar days from the date of the Federal Register notice.
Whether that constitutes a reasonable opportunity to participate depends on the nature of the issues raised by the rulemaking, Thomas McGarity, an administrative law professor at the University of Texas Austin, told Bloomberg BNA. Since the proposal only concerns the effective start date of the rule, a court might find that 14 days’ notice is sufficient, McGarity said.
MSHA could not immediately be reached for comment.
MSHA is allowing 60 days for public comment on its second proposal, to let miners enter the work site while safety exams are taking place. The agency will hold four public hearings on that proposal, starting Oct. 24 at agency headquarters in Arlington, Va.
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