Coal Age

JUN 2019

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Page 49 of 51

48 June 2019 legally speaking Keeping Up With the OSHAs by mark savit Those of us who have been involved in the industry over relatively long pe- riods (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 technol- ogy 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 stan- dard," 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 stan- dard, making them both 50 years old. In 1969, the word "digital" literally meant "with one's finger." Now equip- ment 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 man- ually, controlled, and the technology surrounding that operation does not involve physical switches that can be locked or tagged out. While the oper- ating technology may be 21 st century, lockout/tagout equipment must re- main as it was 50 years ago. The problem is even more acute with respect to MSHA's procedure to determine whether equipment is per- missible or not. The approval criteria have not changed substantively in 20 to 30 years and some of the individu- al approval criteria date back to 1968. They do not take advantage of any of the advancements in electrical tech- nology that have taken place since they were promulgated. By way of ex- ample, our team was recently involved in an issue involving a unique appli- cation of equipment that was required to be Part 18 compliant. During meet- ings with MSHA technical staff, it was made clear the components the mine proposed complied with the Occupa- tional Safety and Health Administra- tion's (OSHA) requirements for elec- trical equipment used in explosive atmospheres. Although MSHA ac- knowledged the equipment complies with the more modern OSHA stan- dards and, because of their advanced technology, were ultimately safer than existing permissible equipment, the equipment still could not be used be- cause MSHA had not yet determined it was permissible under Part 18. OSHA has taken the lead to try and modernize its regulations. Al- though OSHA's regulation is 20 years younger than ours, OSHA recently is- sued a request for information (RFI) seeking information on ways to up- date its lockout/tagout regulations and keep up with changing technol- ogy. It is this kind of action that can help unshackle our industry from bu- reaucratic impediments to improved technology. In the RFI, OSHA explic- itly 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 reg- ulations, 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 ar- eas 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 pro- posed 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 ac- tually diminish safety or the proposed method of compliance would, at all times, provide no less measure of safe- ty than the existing standard. As discussed above, there is a case to be made that compliance with many of the existing standards actual- ly 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 regula- tions. 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, indi- vidual operators could propose solu- tions that take advantage of modern technology that work best for their in- dividual conditions. Rather than en- gaging in new rulemaking every time an important technological break- through has taken place, the industry could keep pace with evolving tech- nology by submitting new petitions. In that way, the regulations could be essentially "self-modernizing" — al- lowing 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

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