For clients and friends of Jackson Kelly PLLC
Volume 15, Number 5
©2019 Jackson Kelly PLLC
On July 29, 2019, the Mine Safety and Health Administration (“MSHA”) published a Program Policy Letter (“PPL”) and request for comments in the Federal Register. (84 Fed. Reg. 36623). It is important to note that this letter was intended as interpretive guidance to existing policy and not a rulemaking.
The letter aims to clarify the requirements for Metal/Nonmetal mine escapeways and refuges under 30 C.F.R. § 57.11050. Under the standard in § 57.11050(a), a minimum of two “separate, properly maintained escapeways to the surface from the lowest levels” must be present in every underground MNM mine. The regulation also requires “a method of refuge” be provided while the second escapeway is under development. Subsection (a) also states that during exploration or development of an ore body, a secondary escapeway is recommended but not required. 30 C.F.R. § 57.11050(a).
The PPL issued by MSHA on July 29, 2019, clarifies that “a method of refuge” is required in any situation without a secondary escapeway, both while the escapeway is under development and in situations where a secondary escapeway is not in place because it is not required. Therefore, appropriate refuge spaces, as defined in § 57.11052, are required during exploration and development.
Critically, the PPL goes on to require refuges be significantly more accessible in situations where there is only one available escapeway from a miner’s working place than in situations where two escapeways are available from a working place. Under § 57.11050(b), refuges are required in addition to escapeways when two escapeways are in place, but some miners would not be able to reach both escapeways within one hour using the normal escape methods. In this case, refuges must be available to miners within 30 minutes travel from their workplace. Under the new PPL, the distance to refuges in situations with a single escapeway are to be determined on a case-by-case basis. However, in the letter, MSHA provides guideposts of “1,500 feet from miners on a relatively level surface,” or “reachable within a 10-minute walk in any configuration while carrying an injured miner.” These metrics are considered sufficient to provide the protection envisioned by MSHA under the standard.
Another point of contention raised by the PPL is MSHA’s statement in the PPL that § 57.11050(a) requires “that underground MNM miners be provided at least two separate escapeways from their working places to the surface.” The plain language of the standard has no such requirement. Rather, it requires that every mine “have two or more separate, properly maintained escapeways to the surface from the lowest levels” of the mine. MSHA has relied on similar mischaracterizations of the standard’s requirements, set forth in prior policy documents, to support the issuance of enforcement actions to mine operators who did not have two escapeways from each working place, a configuration often dictated by mining methods and mine design.
Obviously, the time and infrastructure requirements to provide compliant refuge areas are not insignificant, and MSHA recognizes that this guidance will likely “raise novel legal or policy issues.” MSHA is accepting public comment on this guidance through September 27, 2019. The Federal Register notice, and contact information to submit comment can be found here: https://www.federalregister.gov/documents/2019/07/29/2019-16105/escapeways-and-refuges-in-underground-metal-and-nonmetal-mines
Jackson Kelly PLLC’s Occupational Safety and Health team is available to assist clients in developing customized strategies for responding to, and complying with, changes in regulation that impact operations and employee safety.
WORKPLACE SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Karen L. Johnston
303.390.0008
kjohnston@jacksonkelly.com
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