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legally speaking Regulatory Compliance and the Quest for Consistency BY PETER GOULD AND MARK SAVIT Consistency in the application and enforcement of standards remains a key concern to the indus- try, and we are improving consistency. —Joseph A. Main, assistant secretary of labor for Mine Safety and Health, Cincinnati, Ohio (July 16, 2012). Consistency and clarity are vital to both industry and the agencies charged with regulating industry. Confusion and inconsistency regarding compliance in the marketplace and by agencies result in unpre- dictable and wasted enforcement efforts that siphon precious resources away from programs—both pri- vate and public—aimed at improving worker safety. Consistency is manifold; we seek consistency within the industry, and the agency (here, the Federal Mine Safety and Health Administration (MSHA)), but also across agencies, even those that exist within the same cabinet department. For example, the two workplace safety and health agencies within the U.S. Department of Labor, the Occupational Safety and Health Administration (OSHA) and MSHA have virtually identical Congressional Mandates. In OSHA's case it is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources...." MSHA is likewise charged with protecting "the health and safety of its most precious resource—the miner." While sim- ilar types of work and conditions frequently exist on both OSHA and MSHA sites, too often the two agencies approach a single problem in significantly different ways. For example, OSHA and MSHA have very different hearing conservation programs, despite the fact that noise is noise, regardless of whether the noise is found at a mine site or a con- struction site. Another example is fall protection. The Metal/Nonmetal standards for both underground and surface mines found at 30 C.F.R. §§ 56/57.15005 state, in part: "Safety belts and lines shall be worn when persons work where there is a danger of falling...." A similar standard is found in 30 C.F.R. § 77.1710(g) pertaining to surface coal mines and surface work areas of underground coal mines. That standard also states, "Safety belts and lines shall be worn where there is danger of falling...." Curiously, no analogous standard appears to exist in Part 75 for underground coal mines beyond the simple safeguard guidance that miners "should wear safety belts while doing work in or over shafts." The companion OSHA standard for the construction industry found at 29 C.F.R. §1926.501(b)(1), states that "Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 ft (1.8 m) or more above a lower lev- el shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems." After years of inconsistent, arbitrary and often highly subjective enforcement of the MSHA standards, MSHA Metal/Nonmetal pub- lished Program Policy Letter No. P12-IV-01, titled "Safety Belts and Lines (30 C.F.R. §§ 56/57.15005)" on June 21, 2012. The PPL's purposed was to "clarify compliance required under 30 C.F.R. §§ 56/57.15005 to enhance consistency and protection of miners." The PPL, which ironically was directed only at non-coal operations despite the existence of the same standard in Part 77, but not Part 75, 64 www.coalage.com states that "In many cases, compliance with OSHA's fall protection standard will satisfy the requirements of MSHA's 30 C.F.R. §§ 56/57.15005 standard. MSHA will evaluate all work area hazards to ensure appropriate fall protection provisions are in place to protect miners from fall hazards." MSHA's Program Policy Manual offers little guidance to operators or inspectors: "Paragraph (g) of this Section requires that safety belts and lines shall be worn at all times by all min- ers working in positions where there is a danger of falling, except where safety belts and lines may present a greater hazard or are impractical. In those cases, the standard requires that alternative precautions be taken to provide the miners with an equal or greater degree of protection. Substantial scaffolding with adequate guardrails or safety nets are acceptable alternatives. The objective of this policy is to insure that miners working where there is a danger of falling are always protected." In his remarks to members of the aggregates industry on July 16, 2012, MSHA Chief Joe Main stated, "Consistency in the application and enforcement of standards remains a key concern to the industry, and we are improving consistency." He praised MSHA for publishing the June 21, PPL, "a policy letter modeled after OSHA's standard clarifying the situations in which the MSHA's fall protection standard applies." Main continued, "There had been general confusion about the stan- dard and some inconsistencies in enforcement as a result. This clari- fied policy will go a long way to ensuring consistency in enforcement of the standard, as well as the safety of miners. We intend to look at more of these types of situations." While MSHA's stated goals of improving consistency are praisewor- thy, the PPL falls short; it ignores coal operators struggling to determine how comply with the same vague standard and still leaves room for subjective determination of when there exists "a danger of falling" in those cases where MSHA believes compliance with OSHA's fall protec- tion standard does not "satisfy the requirements of MSHA's 30 C.F.R. §§ 56/57.15005." This is concerning, as MSHA, on its website, attributes fall protection deficiencies to 48 fatalities at non-coal facilities and 25 fatalities at coal facilities since 2000. This is not a one-way street. Parts 56, 57 and 77 all have standards relating to berming roadways where there is a drop-off or grade suffi- cient to cause equipment to roll over or injure persons in the equip- ment. Parts 56 and 57 are enforced entirely subjectively based on the perception of the inspector. The Coal Mine General Inspection Procedures Handbook, on the other hand, contains a chart indicating the combinations of grades and depths which are deemed "sufficient to cause" a rollover and thus guide operators as to when berms are required and when they are not. In contrast to the guidance on fall pro- tection, the guidance on berms has never formally been adopted by Metal/Nonmetal. With end of the calendar year nearly upon us, a look back at 2012 shows some encouraging movement by MSHA toward more regulatory consistency, but it is clear the agency still has much work to do. We encourage the agency's efforts toward simplifying and improving gray areas in compliance and enforcement, but we sincerely hope that MSHA redoubles those efforts in 2013. Gould is a partner with Patton Boggs LLP. He can reached at 303-894- 6176 or at pgould@pattonbogss.com. Savit is also a partner with Patton Boggs LLP. He can be reached at msavit@pattonboggs.com. November 2012