Producers Must Look Beyond The Written Standards To Anticipate How MSHA May Apply and Enforce The Law And Regulations.
By Ross Watzman
Thirty-seven years and thousands of federal register pages later, MSHA’s expectations for compliance of the regulated community remain a source of confusion and controversy. From the inappropriate incorporation of consensus standards into MSHA regulations to MSHA’s convoluted and ever changing interpretation of its own regulations, the task of determining operating compliance has become increasingly difficult.
No longer can operators attempt to comply with MSHA’s regulations by simply interpreting the standards as written. Nor can operators expect MSHA to apply a consistent, across the board, interpretation to all facilities. In order for operators to predict compliance, they must understand the changing culture within MSHA and look beyond the written standards to anticipate how the agency may apply and enforce the law and regulations.
Government agencies have broad powers to promulgate regulations, and MHSA is no exception. Section 101 of the Mine Act provides authority to the Secretary of Labor to “develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines.” 30 U.S.C. § 811.
In drafting these standards, the Secretary is allowed to incorporate industry developed consensus standards by reference and require compliance with those standards. However, the government’s power to make rules is not unbounded. It is governed by the Administrative Procedures Act (APA) and the Federal Register Act of 1935 (FRA).
In order for consensus standards – such as the National Electric Code, National Fire Code, and American National Standards Institute – to be properly incorporated under the APA, a standard must meet specific procedural requirements.
One of the cornerstone principles is that parties affected by rules must have notice that the agency intends to promulgate a given rule and must be given a chance to make comments to the agency about those rules before they become final (so called “notice and comment” rulemaking). The incorporated standard must then be published in the Federal Register and MSHA must maintain a copy for public inspection.
MSHA has recently attempted to overcome these procedural requirements by including buzzwords in agency regulations. Numerous sections of 30 C.F.R. Part 56 and 57 now include the phrases “substantial construction,” “properly installed,” or “approved design.”
While several of these phrases are indeed defined by MSHA regulations, MSHA inspectors have begun to incorporate additional consensus standard requirements for compliance purposes. Instead of simply looking at and applying the language of MSHA standards, inspectors now require operators to comply with the consensus standards even when they are not mentioned in the MSHA regulation.
For example, 30 CFR § 57.12002 states that: “Electric equipment and circuits shall be provided with switches or other controls. Such switches or controls shall be of approved design and construction and shall be properly installed.”
The issue is that none of MSHA’s own standards define these highlighted phrases. Thus, MSHA inspectors improperly refer to the National Electric Code to ensure that the switches or controls used are of an “approved design” and “properly installed.”
In addition to vague or even meaningless buzzwords, several MSHA standards incorporate consensus standards “as revised or subsequent revisions.” On its face, this seems like an economical way to both incorporate what the agency wanted without having to re-publish a large amount of information that had already been made available to the public, but also to keep up with any developments in the field without having to constantly revise the regulation.
Unfortunately, however, allowing revisions to be automatically incorporated into the rule whenever they might be published causes two separate problems. First, since the revisions are not, themselves, rules, the revised material would not be published in either the Federal Register or in the next edition of the C.F.R. and thus, there would be no way to show that everyone had an equal opportunity to review them.
Second, and perhaps more important, the revisions might have significant changes in them which would take effect automatically, without an opportunity for notice and comment. Thus, operators must not only comply with consensus standards, but also remain vigilant in their awareness of new requirements.
Finally, MSHA’s changing interpretation and inconsistent interpretation of its own regulations has easily become one of the main sources of confusion for operators. For example, on June 21, 2012, MSHA issued an enforcement policy letter clarifying the agency’s position regarding its fall protection standard in surface and underground metal and non-metal mines (P12-IV-01). According to the letter, MSHA will consider compliance with OSHA’s fall protection standard at 29 CFR 1926.501(b)(1), to “in many cases” satisfy MSHA’s standards at 30 CFR §§ 56/57.15005.
MSHA’s standard requires safety belts and lines to be used “where there is a danger of falling.” OSHA’s standard requires that “each employee on a walking/working surface . . . with an unprotected side or edge which is 6 ft. (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”
The troubling aspect of this policy letter is in MSHA’s use of the language “in many cases,” which leaves the agency free to accept or not accept compliance with the OSHA standard on a case-by-case basis and, in turn, leaves employers with little certainty regarding their options for compliance when potential fall heights are at 6 ft. and below.
Now, more than ever, must operators be mindful that the requirements for governmental compliance are ever-growing and expanding. Most importantly, they are being expanded in many cases without regard for the requirement that they must be made available for notice and comment before changes can be made.
For that reason, operators really must question any citation involving an unwritten or automatically changing reference to an outside standard. The failure to do so may result in the unwarranted imposition of countless additional and potentially changeable requirements.