Mining Regulation & Compliance 2021

We are closing in at the end of the first quarter of 2021. The pandemic continues to show little mercy, and we welcomed a new administration. During our webinar, MSHA Regulation & Compliance 2021, we welcomed guest speakers Mark Savit, Executive Office of Predictive Compliance, and Brian Hendrix, a partner with Husch Blackwell in Washington, DC.

Mark and Brian discussed the expectations under the new Biden administration, the continued impact of COVID-19, and a discussion of priorities for 2021.

What to expect under the new Biden Administration

All eyes are on the Office of the Assistant Secretary of Mine Safety and Health Administration (MSHA) leadership. Never before has MSHA elected an Assistant Secretary before May following an election. Generally, the election is in the fall.

A few candidates have been discussed. According to an article on JDSUPRA,

“In what could be one of the more significant redirections of a government agency, the Biden administration’s transition team will almost certainly appoint a union-supported candidate to replace the current Assistant Secretary of Labor, Mine Safety and Health Administration, David Zatezalo. Biden’s candidacy revolved around a pro-labor agenda, and his transition team remains focused on expanding workers’ rights in the workplace. 

The first candidate name with full labor support has been reported by Bloomberg Law – Robert Lesnick, former Chief Administrative Law Judge for the Federal Mine Safety and Health Review Commission, has reportedly expressed interest in heading MSHA. With the backing of the United Mine Workers and the United Steelworkers, Judge Lesnick represents a near-complete rejection of current MSHA leadership and a move towards a pro-labor MSHA.”

The article continues and summarizes, “Regardless of who the next leader of MSHA is, operators should absolutely expect a union-backed candidate to change MSHA’s approach to safety and return to its core mission – enforcement. Now is the time for operators to inject new energy into their safety programs, focusing on compliance-based activities.”

From the U.S. Department of Labor, “The Office of the Assistant Secretary plans, directs and administers MSHA’s activities to eliminate fatal mining accidents, reduce the frequency and severity of accidents, and minimize health hazards through enforcement of mandatory safety and health standards in the mining industry. MSHA also promotes improved safety and health conditions in the nation’s mines through training, education, and technical assistance programs including the testing and approval of equipment for use in the mining industry.”

How does COVID-19 continue to be a factor for MSHA regulations?

On March 10^th, MHSA updated its guidance on protecting miners in coal, metal, or nonmetal mines to identify risks of being exposed to SARS-CoV-2, the virus that causes COVID-19, at work and to help them determine appropriate control measures to reduce such risk.

According to the online article from Safety + Health,

“The guidance is pretty straightforward, and we believe several aspects can be incorporated into your existing training plan, and it also contains recommendations as well as references to relevant MSHA safety and health standards that already exist,” acting MSHA administrator Jeannette Galanis said March 10 during a conference call with industry stakeholders. “The guidance is based on CDC guidelines and consistent with programs many of you were good enough to share with us.”

Of significant concern is the question of whether MSHA would explore proceeding with an emergency temporary standard related to COVID-19. The President signed an Executive Order directing OSHA and MSHA to consider ETSs related to COVID-19 and, if determined to be necessary, issue them by March 15.

The new guidance in place advises mine operators and employees to establish or review a virus protection program. The guidance also comments on PPE, social distancing, ventilation, hygiene, and cleaning.

OSHA and MSHA Rules & Regulations 2021

The U.S. Department of Labor states, “The Mine Act gives the Secretary of Labor authority to develop, promulgate, and revise mining health or safety standards for the protection of life and prevention of injuries. Rulemaking is the process of developing and issuing rules (rules are also referred to as “regulations” or “standards”). The process can lead to the issuance of a new rule, an amendment to an existing rule, or the repeal of an existing rule.”

Crystalline Silica

A few years ago, OSHA introduced a new ruling regarding Crystalline Silica which, if inhaled, can cause Silicosis, and is linked to lung cancer and COPD. Some studies indicate it can be a potential carcinogen.

OSHA lowered the exposure limit, and MSHA said it would study the issue under the Trump administration. There is a consensus that the Biden Administration will push to get a Silica rule out from MSHA. There are questions! MSHA has never accepted PPE as part of compliance with the rule. Will they make an exception?

MSHA’s position is to exhaust all avenues to control the amount of dust in the air before introducing PPE to the miners. The mine operators are responsible for violations, in other words, strict liability.

The industry is concerned about how MSHA will regulate Silica levels and the worker’s environment. It is virtually impossible to control Silica in the workplace. They use PPE but increase Silicosis, and the industry does not require PPE, increasing exposure. No one knows what the rule will look like. It is safe to say that nothing will happen until MSHA gets an Assistant Secretary.

Powered Haulage Safety Initiative

About half of all U.S. mining fatalities in recent years – including 13 of the 27 fatalities in 2018 – were due to accidents involving powered haulage. That classification includes mobile equipment, conveyor systems, and anything else under power that hauls people or materials.

MSHA has made the prevention of powered haulage accidents a priority, with an initial focus on three areas: mobile equipment at surface mines, seat belt usage, and conveyor belt safety. Materials on this and related web pages support the powered haulage safety initiative.

The rulemaking process is incomplete and unpublished at this point. The new administration is left with an incomplete rule. We do not know what the new administration will do with the rule. Crystalline silica may be address before powered haulage.

Catamount Consulting: OSHA and MSHA

Catamount Consulting provides experienced, high-quality construction and mining safety professionals for short or long-term onsite safety service assignments. Contact us to schedule a time to talk about your organization and how Catamount Consulting can help you understand the new administration’s impact on OSHA and MSHA rules and regulations.

To view the webinar Regulation & Compliance 2021
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resources- https://www.jdsupra.com/legalnews/big-changes-could-be-coming-to-msha-s-87670/ , and https://www.safetyandhealthmagazine.com/articles/20952-covid-19-pandemic-msha-issues-updated-guidance-as-ets-debate-swirls , https://ohsonline.com/articles/2020/02/01/osha-silica-regulations-one-year-in-the-latest-developments-and-how-businesses-can-remain-compliant.aspx#:~:text=The%20new%20regulations%20limit%20the,be%20assessed%20for%20potential%20health