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Keeping Up With the OSHAs.

Those of us who have been involved in the industry over relatively long periods (in my case, a mere 48 years) are familiar with the ups and downs of mining. The coal sector is having a tough time and this page is hardly the place to address all the issues that have combined to cause it. But it is an appropriate place to address the effect of Mine Safety and Health Administration (MSHA) regulations on the industry's ability to take advantage of improving technology in the safety arena.

Let's look first at lockout/tagout. As the regulations currently stand, a physical lock and tag are required to isolate a circuit or prevent accidental energizing of mechanical equipment. Section 75.511 is a "statutory standard," which means it was included in the Coal Mine Health and Safety Act of 1969. The surface mine counterpart is a word-for-word copy of that standard, making them both 50 years old.

In 1969, the word "digital" literally meant "with one's finger." Now equipment controlled by programmable logic controllers is used, rather than by humans, to turn processes on and off. As a consequence, many circuits are automatically, rather than manually, controlled, and the technology surrounding that operation does not involve physical switches that can be locked or tagged out. While the operating technology may be 21st century, lockout/tagout equipment must remain as it was 50 years ago.

The problem is even more acute with respect to MSHA's procedure to determine whether equipment is permissible or not. The approval criteria have not changed substantively in 20 to 30 years and some of the individual approval criteria date back to 1968.

They do not take advantage of any of the advancements in electrical technology that have taken place since they were promulgated. By way of example, our team was recently involved in an issue involving a unique application of equipment that was required to be Part 18 compliant. During meetings with MSHA technical staff, it was made clear the components the mine proposed complied with the Occupational Safety and Health Administration's (OSHA) requirements for electrical equipment used in explosive atmospheres. Although MSHA acknowledged the equipment complies with the more modern OSHA standards and, because of their advanced technology, were ultimately safer than existing permissible equipment, the equipment still could not be used because MSHA had not yet determined it was permissible under Part 18.

OSHA has taken the lead to try and modernize its regulations. Although OSHA's regulation is 20 years younger than ours, OSHA recently issued a request for information (RFI) seeking information on ways to update its lockout/tagout regulations and keep up with changing technology. It is this kind of action that can help unshackle our industry from bureaucratic impediments to improved technology. In the RFI, OSHA explicitly acknowledged it needed to catch up with changes in technology.

While it is true that MSHA has an open request for information on how to "repeal, replace or modify" its regulations, an across-the-board effort to do so would stretch the agency's resources. Further, MSHA makes no effort in its request to prioritize the areas where regulations are the most out of date. Finally, we need to be mindful that on average it takes a year or more from the time a new regulation is proposed until it becomes final.

There is another way to approach the issue. The Petition for Modification process found in Section 101(c) of the act allows operators to petition MSHA for alternative means of compliance with its regulations where compliance with the existing regulation would actually diminish safety or the proposed method of compliance would, at all times, provide no less measure of safety than the existing standard.

As discussed above, there is a case to be made that compliance with many of the existing standards actually diminishes safety when compared to the adoption of current technology. The same can be said with regard to providing protection equivalent to or greater than the existing standard.

MSHA's procedures for granting such petitions (set out in Part 44) are cumbersome but far less so than the procedures for promulgating regulations. Further, MSHA is in control of those procedures and could reform them to make the procedures more collaborative and easier to apply. Thus, MSHA would be reforming only one set of procedural regulations rather than possibly hundreds of substantive ones.

Once Part 44 was reformed, individual operators could propose solutions that take advantage of modern technology that work best for their individual conditions. Rather than engaging in new rulemaking every time an important technological breakthrough has taken place, the industry could keep pace with evolving technology by submitting new petitions. In that way, the regulations could be essentially "self-modernizing"--allowing the industry to take advantage of the best safety technology available on a case-by-case basis.

Mark Savit is a senior counsel with Husch Blackwell. He can be reached at mark.savit@huschblackwell.com.
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Title Annotation:LEGALLY SPEAKING
Author:Savit, Mark
Publication:Coal Age (1996)
Date:Jun 1, 2019
Words:821
Previous Article:Intrinsically Safe Probes.
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