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Demanding MSHA regulations: 2004 and beyond - Law: key issues - Mine Safety and Health Administration

There has been much success in reducing hazards, accidents and injuries in the mining industry. There has been a three-year decline in fatal accidents and last year saw the lowest number of fatalities ever. In the prior year, 2002, there were 67 deaths. That was a record low, but in 2003, the number was down to 55. The metal/nonmetal sector dropped from 40 in 2002 to 26 in 2003. Encouraged by these and other signs of continually improving safety, the aggregates industry seems increasingly committed to preventive measures.

Emergence of health regulations

As protections from sudden severe trauma improve, MSHA is looking increasingly to health issues in the workplace and that is where regulatory initiatives are now greatly focused. Substantial new rules have been adopted for hearing conservation and chemical hazards communications at all mines, and control of diesel particulate matter in underground mines. Of greatest significance for the immediate future, however, are health initiatives related to crystalline silica and asbestos.

Impact of OSHA on MSHA

Increasingly, MSHA is following OSHA in rulemaking philosophy--particularly with new health initiatives. MSHA's more design-oriented, detailed and administratively taxing regulations are in the exact form of OSHA regulations. For example, MSHA's Noise and Hearing Conservation Standard and the Hazard Communication Standard both mirror OSHA's standards on the same subjects. It can be anticipated that future regulations by MSHA on silica and asbestos will also closely follow OSHA.

Existing silica rules

For many years, MSHA has had regulations governing air quality. As pertaining to silica, these provide for the following:

* "Dust ... surveys shall be conducted as frequently as necessary to determine the adequacy of control measures."

* "Control of employee exposure to harmful airborne contaminants shall be, insofar as feasible, by prevention of contamination, removal by exhaust ventilation, or by dilution with uncontaminated air."

* "[E]xposure to airborne contaminants shall not exceed ... the threshold limit values [TLVs] adopted by the American Conference of Governmental Industrial Hygienists [(ACGIH) (1973 Edition)]."

* "[W]here accepted, engineering control measures have not been developed ... employees may work for reasonable periods of time in concentrations of airborne contaminates exceeding permissible levels if they are protected by appropriate respiratory equipment."

* "Whenever respiratory protective equipment is used a program for selection, maintenance, training, fitting, supervision, cleaning, and use shall meet [American Natural Standards Institute Practices for Respiratory Protection ANSI Z88.2-1969]."

In addition to the air quality standards, existing MSHA Hazard Communication regulations also create obligations with respect to silica. Operators of mines must:

a. Identify chemicals at the mine (including those in mined materials).

b. Determine which are hazardous.

c. Establish a Hazard Communication (HazCom) program.

d. Inform employees about hazards.

e. Inform contractors about hazards.

f. Inform both about protective measures.

New silica rules

Both MSHA and OSHA have rulemaking initiatives pending with respect to silica. The Permissible Exposure Limit under the current MSHA requirements that date from 1973 limit silica exposures to 100 micrograms per cubic meter of air. There are current recommendations that the limit should be cut in half to 50 micrograms per cubic meter of air.

MSHA has indicated an intention to issue an Advanced Notice of Proposed Rulemaking in May. As for what a silica standard might look like, there is an existing OSHA draft that looks much like the complicated noise and hearing conservation standard of OSHA and MSHA. It can be anticipated that MSHA will follow OSHA's lead.

Existing asbestos rules

Asbestos control issues have been heightened for OSHA and MSHA by highly publicized incidents and related civil damage claims. Diseases associated with asbestos include asbestosis, mesothelioma and other cancers.

Current MSHA regulations provide that the time weighted average [TWA] over eight hours shall not exceed two fibers per milliliter greater than 5 microns in length. The regulations also provide that no employee shall be exposed at any time above 10 fibers longer than 5 micrometers per milliliter of air.

New asbestos rules

Once again, when MSHA promulgates new rules on asbestos, they are likely to resemble OSHA requirements. The OSHA regulations are much more restrictive. They limit exposure to a fraction of what MSHA regulations permit. The OSHA limit is 0.1 fibers per cubic centimeter of air. The Labor Department Inspector General now recommends that MSHA reduce its permissible exposure limit for asbestos.

It can be expected that MSHA will be greatly influenced by the OSHA limits. MSHA has indicated an intention to issue a Proposed Asbestos Rule in May. The form of this rule has yet to be determined, but it will undoubtedly expand on existing requirements and create new monitoring obligations for producers.

Buy the book

* MSHA--The Mine Operator and the Law MSHA civil penalties can run into hundreds of thousands of dollars. Managers and supervisors can be personally prosecuted. Misdemeanor convictions, as well as felonies, can result in fines and imprisonment. Avoiding MSHA problems is the subject of this book. It is written specifically for mine operators and provides keen insights that will not be found anywhere else. It dispels the mystery of government, guides operators through troublesome issues and makes helpful suggestions from long experience.

* Safety and Health at Mines--A Manual for Operators and Contractors (Surface Metal and Nonmetal Operations) A companion book to "MSHA--The Mine Operator and the Law," this is the one book you must have to communicate to employees--and contractors that work on-site--their responsibilities under federal MSHA regulations. This book is a critical resource to aid in compliance, work inspections and training.

* Each book is $24.95 and volume discounts are available. To order, call toll-free 866-295-9755 or, for information, visit www.mineworksmedia.com.

Legal Tip

Both MSHA and OSHA have rulemaking initiatives pending with respect to silica.

Pit & Quarry legal editor, Michael T. Heenan, and his partners have merged their law offices with Ogletree Deakins--one of the nation's largest labor, employment and safety law firms. Questions or comments may be directed to Heenan at Ogletree, Deakins, Nash, Smoak & Stewart, 2400 N. Street, Fifth Floor, Washington, DC 20037. E-mail: Michael.Heenan@ODNSS.com.