Despite assurance from an MSHA spokesperson last year that MSHA's forthcoming standard on proximity detection devices would not extend beyond underground coal, Assistant Secretary Joe Main has refused to state what the scope of the rule will be.
MSHA released its regulatory agenda in December 2010. In a media conference call today to discuss the Agency's short-term regulatory plans, Main indicated that an emergency temporary standard (ETS) on proximity detection devices would be issued in March. Under the law, it would take effect immediately and have to be superseded by a final regulation within nine months.
After Main summarized the agenda and referenced the proximity detection rule as applying to underground mines, Sharpe's Point asked Main to clarify whether or not the ETS would apply only in Coal or would include underground Metal/Non-Metal (M/NM) operations, too. Main said, "At this stage, we cannot go into the details of what the regulation is going to entail. The title of the rule as it stands is 'underground mines.' "
Sharpe's Point put the same question to Agency spokeswoman Amy Louviere late last month after MSHA's agenda was released. Her e-mail response was that the ETS would only apply to underground coal.
Proximity detection devices operate to warn persons automatically when individuals come too close to moving machinery and shut down altogether if the person moves into the danger zone. Main said scores of miners' lives have been lost to moving machinery since 1984, and added that MSHA has approved proximity detection devices from at least three manufacturers.
" When you have 70 deaths over the last number of years, 70 deaths since 1984, six deaths this year, and the technology is available and we can protect these miners, why don't we?" he asked.
On another topic, a questioner asked why a proposed rule MSHA released in December to strengthen workplace examinations in underground coal mines had not been extended to M/NM. The proposal would require certified examiners to expand the scope of their mandatory periodic safety examinations to observe and record violations of MSHA's mandatory health and safety standards.
The language of the current standards in Coal at Parts 75.360-364 does not require this. Neither do the two applicable standards in M/NM, 56.18002 and 57.18002. According to the Program Policy Manual, the M/NM examiner must only record his or her name, work areas examined and examination date.
" We're trying to identify where the greatest harm is with the population of miners and go after fixing that," he responded. Looking at 2010, he went on, "I think it's obvious more needs to be done in underground coal mines to bring about better compliance."
Main then added a comment that suggests more may be required of M/NM examiners in a forthcoming proposal on safety and health management programs. MSHA has proposed issuing such a rule in June. He said, "[That is]not to say that we don't need to do more at other mines, underground mines, and as we all see, there's another rulemaking activity that's looking at the industry as a whole when it comes to health and safety programs. Not to say what will or won't be in that but that's another topic of discussion."
Such a mandate in a new proposed rule would be controversial. MSHA issued a Program Policy Letter in November that added a new requirement for M/NM examiners to record any hazardous conditions found during their examinations. Operators complained and three weeks after the directive was issued, MSHA suspended its implementation. The suspension remains in place today.
The questioner also asked if the proposal affecting workplace examinations in underground coal would "inadvertently" imposed increased liability on the examiners under Sec. 110(c) of the Mine Act. Main's answer suggested that is not MSHA's intent. "Our straight-forward approach to life is to have operators take greater responsibility for finding and fixing these conditions and thus improve compliance at the nation's mines and reduce the potential for injuries, illness and death," he said.

The foregoing is a service provided to subscribers of Sharpe's Point, The Newsletter on Safety and Health in Mining. Sharpe's Point is a publication of Sharpe Media LLC. 4519 34th Street S., Arlington, VA 22206-1914 Tel: 703-379-0652, Fax: 914-840-0716 e-mail:info@sharpespoint.com Copyright 2010, Sharpe Media LLC. All Rights Reserved.

This is the time to call, email, or write your Congressmen and Rep. Issa (CA) who is chairman of the House Oversight and Government Reform Committee. He requested feedback from Production Operators on MSHA enforcement and rulemaking. You need to tell him that MSHA is not properly enforcing the plethora of rules they presently have and most certainly do not need to make additional rules to ignore or to unconstitutionally enforce. $afepro