By: Laura E. Beverage
On May 27, 2020, the Mine Safety and Health Administration (“MSHA”) unceremoniously canceled the Program Policy Letter (“PPL”) published on July 29, 2019, intended to clarify requirements in 30 C.F.R. § 57.11050. https://www.govinfo.gov/content/pkg/FR-2020-05-27/pdf/2020-11300.pdf. The stated intent of the PPL was to provided metal/nonmetal underground mine operators with guidance on placement of escapeways and refuge chambers. https://www.govinfo.gov/content/pkg/FR-2019-07-29/pdf/2019-16105.pdf.
The standard at 30 C.F.R. § 57.11050 requires underground metal/nonmetal mines to have at least two escapeways from the lowest levels of the mine to the surface and positioned such that damage to one does not lessen the effectiveness of the others. While a second opening to the surface is developed, a method of refuge must be provided. The regulation requires a method of refuge be provided for every miner who cannot reach the surface from his working place through at least two separate escapeways within one hour using normal exit methods. If that cannot be accomplished due to distances for walking within the mine, the refuges must be located so the miner can reach one within 30 minutes.
A comment period was offered to stakeholders and a public hearing was held on October 19, 2019. Many commenters complained that the PPL interpretation of the regulation did not follow the plain language of it. The PPL required that a miner be able to reach the secondary egress or refuge within 30 minutes from the time he leaves his working place. The language in the standard refers to “levels” not a “working place.” A “working place” is defined as “any place in or about a mine where work is being performed.” 30 C.F.R. § 57.2. A “level” has historically been understood to be a main roadway or passage to afford access to stopes and workings, and to provide ventilation and haulage ways. The use of the language “working place” as a substitute for the regulation’s reference to “levels” was thought to be an overly inclusive expansion of the plain requirements of the regulation.
The published PPL also mandated that when a refuge is required either as a result of the second escapeway being developed or in the situation where miners would not be able to reach both escapeways within one hour using the normal escape methods, the location of the refuges would be determined on a case-by-case basis. The PPL required that a refuge be “reachable within 10 minute walk in any configuration while carrying an injured miner” or within “1500 feet from miners on a relatively level surface.” Many stakeholders complained this guidance arbitrary and were inconsistent with other estimates of time critical access.
MSHA simply indicated that after reviewing comments and the public hearing, clarification is no longer needed. The notice of cancellation is effective immediately.