Renewable Energy Update

RELEASE OF THE FALL 2015 MSHA REGULATORY AGENDA

December 1, 2015

The Office of Information and Regulatory Affairs in the Executive Office of the President released the 2015 Fall Unified Regulatory Agenda (“Agenda”) for the Department of Labor (“DOL”). The Agenda announced the DOL’s proposed rulemaking activity for the 2016. The Agenda references rulemaking for many agency subparts, including the Mine Safety and Health Administration (“MSHA”). MSHA has several important rulemaking activities on the Agenda including a final rule revising the criteria and procedures for proposed assessment of civil penalties, proposed rules addressing occupational exposure to crystalline silica, proximity detection systems for mobile machines in underground mines, and examination of working places in metal and nonmetal mines.

The proposed final rule revising the criteria and procedures for proposed assessment of civil penalties overhauls the civil penalty assessment process. The most recent version of the proposed rule revised the description of levels of likelihood found in Part 100 Table XI – Gravity: Likelihood. The definition of “Unlikely” was revised from “Condition or practice cited has little or no likelihood of causing an event that could result in an injury or illness” to “Condition or practice cited has little or no likelihood of causing an injury or illness.” The definition of “Reasonably Likely” was revised from “Condition or practice cited is likely to cause an event that could result in an injury or illness” to “Condition or practice cited is likely to cause an injury or illness.” The definition of “Occurred” was revised from “Condition or practice cited has caused an event that has resulted or could have resulted in an injury or illness” to “Condition or practice cited has caused an injury or illness.” All three definitions removed the “an event” language. A potentially, but not yet actually, injurious condition or practice may not be designated as “Occurred” under the revised rule. MSHA expects to publish the final rule in March 2016.

In addition to the rule revising assessment of civil penalties, MSHA has also announced that it will initiate rulemaking proceedings to create rules governing examination of working places in metal and nonmetal mines and exposure to respirable crystalline silica. MSHA expects to initiate rule making for examination of working spaces by February 2016 and for respirable crystalline silica dust by April 2016. The respirable crystalline silica rule will likely rely on work performed by OSHA in crafting its own crystalline silica rule. The comment period for MSHA’s proposed rule governing proximity detection systems on mobile underground equipment ends on December 1, 2015.

In addition to the final and proposed rules, MSHA announced rulemaking activity in other areas, including:

• A request for information concerning refuge alternatives for underground coal mines. The record closed for this activity on November 16, 2015. MSHA intends to reopen the record in February 2016.
• MSHA is currently analyzing comments generated by a request for information concerning ways to improve underground coal mine safety including issues related to rock dusting, ventilation, mine examinations, certified persons, and MSHA-approved instructors.

This article was authored by Peter S. Almaas, Jackson Kelly PLLC.