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MSHA’s Fall Regulatory Agenda — 2019

In November 2019, the Trump administration issued unified agenda of regulatory and deregulatory actions. Within the United States Department of Labor, the Mine Safety and Health Administration (“MSHA”) issued six notices – two in the prerule stage, three in the proposed rule stage, and one in the final rule stage. All of these actions are discussed in further detail below.


RIN: 1219-AB36 – Prerule Stage

Title: Respirable Crystalline Silica (Quartz)

MSHA’s existing metal/nonmetal standards regarding exposure to quartz in respirable dust are based on the 1973 American Conference of Governmental Industrial Hygienists (“ACGIH”) Threshold Limit Values formula. MSHA’s existing coal mine standards evaluate miners’ exposure to quartz. If the samples exceed 0.1 mg/m3 MSHA reduces the applicable respirable dust standard of the mine represented by the sample data. In this Request for Information, the Department of Labor is seeking to solicit information and data on the best and most feasible ways to protect miners from exposure.

The RFI was published August 29, 2019 and the comment period closed October 28, 2019. At this time, there is no timetable for when the comments will be analyzed.


RIN: 1219-AB86 – Prerule Stage

Title: Exposure of Underground Miners to Diesel Exhaust

Studies have found diesel exhaust presents health risks to workers including cancer. MSHA’s existing regulations address health hazards to underground metal and nonmetal miners from exposure to diesel particulate matter (“DPM”). Because of the carcinogenic health risk to miners from exposure to diesel exhaust, MSHA is requesting information on approaches that would improve control of DPM and diesel exhaust.

The RFI was published June 8, 2016 and public meetings were held in July and August 2016. The RFI comment period was extended on August 25, 2016, reopened on January 9, 2017 and January 9, 2018, and extended again on March 25, 2019. Currently, the comment period will close on September 25, 2020.


RIN: 1219-AB88 – Proposed Rule Stage

Title: Regulatory Reform of Existing Standards and Regulations: Electronic Detonators

Because of Executive Order 13771, MSHA will revise existing standards and regulations to improve them, make them more effective or less burdensome by accommodating advances in technology, innovative techniques and/or less costly methods. MSHA’s first action is to consider the use of electronic detonators as related to explosives and blasting in metal and nonmetal mines.

The Notice of Proposed Rulemaking is supposed to be published in December 2019.


RIN: 1219-AB89 – Proposed Rule Stage

Title: Alternatives to Petitions for Modification: Non-Permissible Surveying Equipment

Because of Executive Order 13771, MSHA sought comments on existing regulations that could be revised to include alternatives to safety standards which MSHA typically approves in Petitions for Modification submitted by mine operators. MSHA’s first action will be to consider the use of non-permissible surveying equipment in underground coal mines.

The Notice of Proposed Rulemaking was supposed to be published in November 2019.


RIN: 1219-AB91 – Proposed Rule Stage

Title: Surface Mobile Equipment, Including Powered Haulage Equipment, Safety Programs

MSHA will issue a proposed rule regarding a potential safety program for mobile equipment at surface mines and surface areas of underground mines.

The RFI was published June 26, 2018 and stakeholder meetings were held in August and September 2018. The RFI comment period ended December 24, 2018. The Notice of Proposed Rulemaking is supposed be published in March 2020.


RIN: 1219-AB84 – Final Rule Stage

Title: Refuge Alternatives for Underground Coal Mines; Limited Reopening of the Record

The Court of Appeals for the District of Columbia Circuit remanded a training provision in the Refuge Alternatives Final Rule, directing MSHA to explain the basis for requiring motor task (hands-on), decision-making, and expectations training annually rather than quarterly, or to reopen the record and allow public comment.

MSHA reopened the record on August 8, 2013 and then again on November 15, 2013. The comment period ended on December 16, 2013 and the Final Rule is supposed to be published in December 2019.

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About this Author

Jason M. Nutzman, Dinsmore Law, Labor Lawyer, Mine Safety Attorney
Partner

Jason Nutzman is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Jason represents clients before the Federal Mine Safety and Health Review Commission in accident investigations, special investigations, and discrimination investigations conducted by the Department of Labor with respect to the
Mine Safety and Health Act.

In his practice, he works with human resource managers and in-house counsel providing employment advice and litigation support to employers. Jason also provides employment counseling to employers from the beginning...

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