As 2015 gets under way, things are pretty quiet on the Mine Safety and Health Administration (“MSHA”) front. MSHA published its semi-annual regulatory agenda back in November, and it is less ambitious than in years past. In the coming year, we anticipate MSHA will address only a few regulatory issues. Notably, the agency recently extended the deadline for filing written comments to the proposed “Criteria and Procedures for Proposed Assessment of Civil Penalties” rule until March 12, 2015. As well, two additional public hearings were announced: February 5 in Birmingham, Alabama and February 12 in Chicago, Illinois.
MSHA’s regulatory agenda included notice of a proposed rule on crystalline silica that is expected to be published in October 2015. The mining industry has known for some time that MSHA anticipated undertaking rulemaking based on the record prepared by the Occupational Safety and Health Administration (“OSHA”) on the health effects of silica and risk assessment. As well, MSHA stated that it will propose a rule concerning proximity detection systems in all underground mines in January 2015. According to the agency, this rule would strengthen protection for underground miners by reducing the potential of pinning, crushing, or striking hazards associated with mobile equipment. Although the expected dates of action are stated in the regulatory agenda, MSHA is notorious for not meeting the stated deadlines or even disregarding the agenda items completely.
Also on the agenda in the pre-rule stage is an April 2015 request for information regarding possible approaches that would improve the control of diesel particulate matter and diesel exhaust. MSHA continues its consideration of refuge alternatives in underground coal mines, currently in the pre-rulemaking stage. Finally, MSHA anticipates seeking information, data, and comment on whether the existing standards for workplace examinations in metal and nonmetal mines should be revised. The request is expected to seek information regarding: (1) persons conducting the examination, (2) the quality of the examination, and (3) the recordkeeping provision, among other provisions. However, rulemaking on this standard is not set in stone as MSHA also is considering whether issuing guidance or disseminating best practices regarding the existing standards would effectively accomplish the same goal.
On January 12, 2015, the Office of Management and Budget (“OMB”) completed its review of MSHA’s prospective final rule on “Proximity Detection Systems for Continuous Mining Machines in Underground Coal Mines” and gave its approval for the rule to move forward, subject to some changes. OMB had the final MSHA proximity-detection rule under review for over one year. Once MSHA addresses OMB’s concerns through revisions to the proposed rule, a final rule will be published in the Federal Register on January 15, 2015, with an effective date of March 16, 2015.
The new year brings also with it a new Congress. As the 114th Congress gets underway, there are key changes in committee leadership, due to the Republicans taking a majority in the Senate. The Committee on Health, Education, Labor, and Pensions will be chaired by Senator Lamar Alexander (R-Tenn.). In the House of Representatives, John Kline (R-Minn.) will continue to chair the Education and the Workforce Committee. In other House news, the Republican-controlled House plans to vote on the Regulatory Accountability Act of 2015, perhaps as early as this week. If passed by both the House and the Senate, the legislation will require federal agencies to consider a proposed rule’s impact on jobs and the economy while searching for less expensive alternatives, to be transparent about the data used to justify regulations, and to hold public hearings for the most expensive rules. Regulations would also be subject to court challenges before they are finalized. President Barack Obama has threatened to veto this legislation if passed.
Stay tuned for more regulatory and legislative updates as the year goes by. In the meantime, we wish you a safe and healthy 2015!
This article was authored by Karen L. Johnston, Jackson Kelly PLLC. For more information on the author, click here.