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Secretary of Labor Thomas E. Perez

DOL Regulations - Live Q&A Session with MSHA - Static Version

Wednesday, April 28, 10 a.m. EDT

Please note that input received during the course of this web chat is not part of the formal rulemaking process. You can find DOL’s proposed regulations, and submit comments, by visiting www.regulations.gov.

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  • Enter your question directly into the live chat window found on the interactive page.
  • E-mail us at webmaster@dol.gov

You can also use the interactive page to enter your questions.

9:55 Moderator: Welcome! Our chat with MSHA will begin at 10 a.m. EDT, but you can submit your questions at any time and they will go into a queue. This is a text-only Q&A so there will be no audio or video.

10:01 Asst. Sec. Joe Main: Good morning and welcome. As you know, on Monday Secretary Solis discussed the Department’s regulatory agenda and announced a new Plan … Prevent … and Protect strategy that will help to ensure America’s workplaces are safe, secure, and equitable. Today, we are here to discuss MSHA’s portion. MSHA’s agenda supports Secretary Solis’ new regulatory and enforcement strategy – which is designed to expand and strengthen MSHA’s effort to ensure that all mine operators “find and fix” safety and health hazards. MSHA is also committed to supporting the Department’s goal of Openness and Transparency. Our spring agenda has 10 actions, which includes 4 new actions. MSHA’s agenda contained four errors which we have corrected in this opening statement.
I would like to highlight a few of MSHA’s priorities.
• Safety and Health Management Programs – RFI which will solicit information for addressing injury and illness prevention through implementation of comprehensive safety and health management programs at all mines. The date is corrected to October 2010.
• Preshift Examination of Work Areas in Underground Coal Mines for Violations of Mandatory Safety or Health Standards – proposed rule. The Spring 2010 Regulatory Agenda Summary is corrected as follows. In the ever-changing mine environment, it is critical that hazardous conditions be recognized and abated quickly. Operator pre-shift examinations for hazards and violations of mandatory health or safety standards are mandated in the Mine Act and are a critical component of an effective safety and health program for underground mines. While this requirement was previously included in regulations, the 1992 final rule addressing ventilation in underground coal mines only included the requirement that the pre-shift examiner look for hazards. The 1992 rule omitted from the regulation text taken from the Mine Act requiring examination for violations of mandatory safety or health standards. The re-institution of this practice should result in reduced risk of injury, death, and illness and should lead to fewer citations for safety and health violations during MSHA compliance inspections of underground mines. This proposed rule will complement the request for information concerning Safety and Health Management Programs for Mines (1219-AB71).

• Pattern of Violations (POV) – proposed rule. The Spring 2010 Regulatory Agenda Summary is corrected as follows. Under 30 CFR 104(e) of the Federal Mine Safety and Health Act of 1977, a mine operator can receive a Pattern of Violations notice. The pattern criteria and procedures are contained in the regulations in 30 CFR part 104. MSHA will review these regulations with the goal of improving consistency in the application of the pattern of violation notice and requiring implementation of health and safety management programs.

• Lowering Miners’ Exposure to Coal Mine Dust Including Continuous Personal Dust Monitors – proposed rule. MSHA will review Advisory Committee recommendations and NIOSH criteria document.
In addition, the date for Revising Electrical Product Approval Regulations is corrected to December 2010.
Let’s begin.

10:05 Comment From jackson: will there be an available copy of this q&a afterwards?

10:05 Moderator: The complete chat will remain available on the Web page you are on now as a "replay."

10:08 Comment From Ken Ward Jr.: Why is MSHA focused on rewriting the Pattern of Violations rule, when it appears that the real problem with POV is the Bush administration's POLICY and the matrix used, not the actual regulations, which mostly mirror the statute?

10:08 Joe: Thanks for the question. We are looking at the entire POV process. A number of imporvements can be made administrtively through policy changes--more quickly than through regulations. Some statuatory improvements may be needed as well. The POV shows up in the regulatory agenda because some changes need to be made through the regulatory process. Everything is on the table.

10:09 Moderator: MSHA is working on a few questions we've already received, but don't be shy. Send your questions now.

10:11 Comment From Ken Ward Jr.: Given the deaths at Upper Big Branch, why isn't MSHA moving on any of these issues more quickly, through an Emergency Temporary Standard?

10:11 Joe: Ken, as I mentioned yesterday, a number of issues are under consideration. The use of emergency temporary standards to address issues in the aftermath of Upper Big Branch is part of our current considerations. However, any emergency temporary standard has to comply with Section 101(b) of the Mine Act.

10:13 Comment From Ken Ward Jr.: Why doesn't MSHA's regulatory agenda include a proposal to update the rockdusting standard, which NIOSH says is based on data from the 1920s and far outdated for modern underground mines? Isn't this a pressing matter, given the deaths of 29 workers at the Upper Big Branch Mine in an explosion likely fueled in part by coal dust?

10:13 Joe: Ken, as I stated in my testimony yesterday, we are looking at this issue, and we will be making a determination on how we address requiring increased rock dusting shortly.

10:17 MSHA Tips & Resources: Featured Regulatory Agenda Items from MSHA:

Safety and Health Management Programs for Mines
Fact Sheet: http://www.dol.gov/regulations/factsheets/msha-fs-safety-health-mgmt.htm

Pre-Shift Examinations of Work Areas in Underground Coal Mines for Violations of Mandatory Safety or Health Standards
Fact Sheet: http://www.dol.gov/regulations/factsheets/msha-fs-preshift-examinations.htm

Pattern of Violations
Fact Sheet: http://www.dol.gov/regulations/factsheets/msha-fs-pattern-of-violations.htm

Fatality Prevention: Rules to Live By
Fact Sheet: http://www.dol.gov/regulations/factsheets/msha-fs-rules-live-by-program.htm

10:17 Comment From Brian: Will assistance be given to company's on how the DOL wants to see the Plan, Prevent, and Protect strategy implemented?

10:17 Joe: We are committed to working with industry and labor to make sure everyone understands expectations for this approach to improved prevention of injuries, illness, and death from mining. We will use a range of educational and outreach efforts to assist in implementation of the Plan, Prevent, and Protect strategy. The regulatory process will assure public engagement in all components of this strategy that will be implemented through regulation. We will be seeking information about best practices and sharing these with industry and labor.

10:22 Comment From Ken Ward Jr.: Could you please explain the proposal concerning pre-shift examinations? The statute seems to mandate that pre-shift examinations look for mandatory violations of health and safety standards -- has the regulation ever included that mandate, and if not, have pre-shift examinations been done improperly since 1969?

10:22 Joe: Ken, this requirement was previously included in regulations following passage of the 1969 Mine Act and is in Section 303(d). The 1992 rule revisions omitted this regulation. This proposal will reinstitute the practice that examiners search for violations of mandatory safety and health standards, which we believe is important.

10:26 Comment From Ken Ward Jr.: Joe, You've talked a lot since taking over at MSHA about the reduction in company safety programs across the industry. I take it the item on this regulatory agenda on safety and health management programs is aimed at addressing your concern there, right? But why does it take until October 2011 to issue a request for information?

10:26 Joe: As I said in my opening statement, there were errors in the agenda published in the Federal Register. The correct date is October 2010. Here is the link to the corrections: http://www.dol.gov/asp/regs/20100427corrections.htm

We think it is highly important for mine operators to assume more responsibility for the health and safety of miners by implementing effective programs.

10:32 Comment From Ken Ward Jr.: Joe -- We had a death in West Virginia just last week, as you know, of a 28-year-old miner who was crushed between a machine and the rib ... do you think there's any way for MSHA to move more quickly on proximity detection devices that might help prevent such deaths?

10:32 Joe: Ken, as you know, the comment period on proximity detection just closed on April 2. My staff is reviewing the comments and we are determining the next course of action. We are looking to see how quickly we can get these proximity detection devices in mines to protect miners.

10:33 Comment From Terry Thompson: Would it be possible to have all POV Status Reports available to the Mine Operators via the MSHA Data Retrieval System so that the operator can get real time status on the ten criteria for POV at the individual mine level and at the mine controller level? I believe that the PIER Tools are very good for VPID etc so similar tools for the POV on the MSHA Web would result in eliminating confusion on the status of POV.

10:33 Joe: Thanks for your question Terry. We are looking to see how we can effectively do that. However, we will also be making changes to the criteria itself, so that it is more effective in indentifying operators with a pattern of disregarding the health and safety of miners.

10:35 Comment From Ken Ward Jr.: Could you specify what matters are being considered for potential Emergency Temporary standards and make clear the standard under 101(b) regarding "grave danger" to miners?

10:35 Joe: Ken, we are considering the areas in which we may use an Emergency Temporary Standard (ETS). Section 101(b) of the Mine Act gives MSHA the authority to issue an emergency temporary mandatory health or safety standard if MSHA determines that miners are exposed to a grave danger and that the standard is necessary to protect miners.

10:38 Comment From Ken Ward Jr.: Also, regarding the regulatory agenda in general -- how will staffing and other resources at MSHA hold up over the next year to 18 months as you try to do things like the black lung program and investigate a major disaster? Are you going to need more resources to do these things and keep up with 4s and 2s?

10:38 Joe: We are assessing the entire staffing and resource needs of MSHA as we move forward. We will be working with the administration and Congress to address resource needs.

Despite the added burden of responding to the disaster, we are committed to meeting our obligation to keep up with our 4s and 2s.

10:39 Comment From Zale: Will the proposed rule in regards to pre-shift exams be for underground mines only - or will it be for all mine sites?

10:39 Joe: Zale, thanks for your question. As stated in the regulatory agenda, this proposed rule will address only underground coal mines. This is consistent with Section 303(d) of the Mine Act.

10:40 Comment From Jim Papenhausen: Is MSHA looking to regulate all imoundments on the surface even if they are not created with the use of a dam? Some may be in the form of a borrow pit or an abandoned quarry pit. Will there be regulations if they pose no potential for creating a hazarous condition to persons or property? Who will determine that potential, MSHA or the mine operator?

10:40 Joe: Jim, MSHA is publishing an Advanced Notice of Proposed Rulemaking to collect information about the proper design, construction, operation and maintenance of impoundments at metal and nonmetal mines. We encourage you to submit information on any relevant issues.

10:43 Comment From Ray: Will there be additional training of the preshift examiners so that they can adequately do the examination that you invision?

10:43 Joe: Thanks Ray for the question. The training process is important. During the rulemaking process, the public will have an opportunity to submit comments. I would urge you to submit any comments you have when the proposed rule is published.

10:44 Comment From Rebecca: Why do Legislators talk about more enforcement to protect miners but when their constituents complain about the increased efforts they blame MSHA?

10:44 Joe: Interesting question, Rebecca--thanks. Clearly legislators and MSHA share a common commitment to improving protection of our nation's miners. Shortcomings have been identified in the law. We will be working closely with Congress to make our protections more effective.

10:48 Comment From Guest: Has MSHA seen a noticeable rise in citations associated with the Rules To Live By campaign?

10:48 Joe: Thanks for the question. The Rules to Live By campaign has been in place a short period of time, and we will begin evaluating the effects of that program in the near future.

10:49 Comment From Stu: In light of the recent events, is MSHA looking at tightening their sphere of influence? As we look at MSHA now, we see that they not only inspect coal operations, metal/non-metal, sand and gravel operations - but also cement plants that OSHA also inspects. Is double agency inspections a fare use of resources?

10:49 Joe: Thank you Stu for your question. Under the Mine Act and a Memorandum of Understanding with OSHA, MSHA has jurisdiction over cement plants. OSHA and MSHA coordinate to avoid overlap. Any specific concerns can be directed to the appropriate MSHA district office.

10:53 Comment From Barry Wills: Has the DOL entertained the thought of combining the nations two top safety enforcement agencies - MSHA and OSHA? One would think the combined resources of the two would be a win win situation.

10:53 Joe: The question of combining OSHA and MSHA comes up from time to time. Conress made clear in 1969 that special protections were needed for coal miners and in 1977 Congress decided all miners should benefit from the same protections. We think that was the right decision.

Both MSHA and OSHA are part of the same Department of Labor and communicate and coordinate frequently. Each agency operates under a different set of laws, and regulations. It is not clear what would be gained by combining these agencies at this time.

10:57 Comment From M8825: This maybe a stupid question; but they say the only stupid questions are the ones that are not asked. Are there regulations that are currently adopted in other nations that the US is currently thinking about placing into legislation as a result of the mining deaths and concerns within the last few years and which governmental departments other the yours, would have archieve records of the minining industry going back to the inception of drilling and mining for the US?

10:57 Joe: M8825, as we develop our standards and regulations, we consider requirements of other national and international bodies to determine if they are relevant. For example, in our recent final rule updating requirements for dust sampling devices, we incorporated by reference international organization of standards (ISO) requirements. Following the tragedies in 2006 at Sago, Aracoma and Darby, the U.S. looked at other countries to see what they were doing for emergency response. This type of review is something that we will continue to do.

10:57 Comment From Jim Sharpe: You have a broad range of authorities to shut down mines or portions of them, powers OSHA only dreams of having. Some you haven't yet used or have used ineffecitvely. Why not use what you have and see how effective they are rather than ask for more?

10:57 Joe: Thanks, Jim. As I pointed out yesterday in my testimony, there are a number of needed improvements in the Mine Act and regulations to protect miners. If we are to help miners, I believe we must both maximize existing tools and implement the type of reforms outlined in my testimony.

10:58 Comment From Richard_W_McCullough: Im interested in knowing where someone that's involved in Research & Development in Mine Safety may submit there product or invention be determined by the government as a solution to some of the mining problems of today.

10:58 Joe: The Natonal Institute for Occupational Safety and Health does research on new solutions to mining problems. Their scientists may be interested in your information.

In addition, the MSHA Approval and Certification Branch in our Technical Support unit evaluates proposed devices for use in the mines. Both groups can be reached through their websites.

10:59 Comment From Ken Ward Jr.: Joe -- Are you also considering ways to make more of the data used in POV determinations PUBLIC, so that miners, the press and the public can keep an ey eon that as well?

10:59 Joe: Thanks again Ken, yes we are considering it.

11:02 Comment From Guest: MSHA has a great supply of teaching material on the web for mine operators. How can you train MSHA inspectors to get more uniform inspections from district to district.

11:02 Joe: We do have mandatory training and re-training for all inspectors. The Agency is focusing on improving consistency. We are also working on implementing Web-based distance learning to improve that consistency. For example, Rules To Live By is an important new initiative that took advantage of new approaches to training involving both our inspectors, industry and other stakeholders.

11:02 Joe: Thank you for participating this morning, we appreciate the comments and concerns that you have provided to us today. We encourage you to participate in all phases of MSHA’s rulemaking process, so that we can achieve Secretary Solis’ vision of Good Jobs for Everyone.

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