Occupational Safety and Health NewsAlert

MSHA ISSUES NEW STANDARDS FOR MINE RESCUE TEAMS FOR UNDERGROUND COAL MINES

For clients and friends of Jackson Kelly PLLC

Volume 4, Number 3
©2008 Jackson Kelly PLLC      

 

            On February 8, 2008, MSHA issued new mandatory safety standards applicable to mine rescue teams for underground coal mines.  The standards are available at : http://www.msha.gov/REGS/FEDREG/FINAL/2008finl/08-551.pdf.  The new standard does not change existing requirements for underground metal/nonmetal mine rescue teams.      

Section 4 of the Mine Improvement and New Emergency Response (MINER) Act of 2006 authorized MSHA to issue regulations for mine rescue teams and mandated that underground coal mines meet strict standards for the training and availability of mine rescue teams.  The new mandatory safety standard expands upon the statutory mandate by implementing stricter requirements for all underground coal mines; establishing medical qualifications for mine rescue team members; specifying how and where training of mine rescue teams must take place; and establishing standards for mine rescue contests and contest judges.  In addition, the new standard mandates a number of new record keeping requirements and additional written certifications to be made by mine management.

In sum, the new standards create a complicated and confusing matrix which underground coal mine operators will have to carefully and quickly navigate in order to avoid monetary penalties and other enforcement sanctions.  This News-Alert discusses in general terms the changes presented by the new standards.  It is intended to alert the reader to the multiple mine rescue issues that mine managers must now address.

Availability

Section 49.12 requires that every underground coal mine operator establish two mine rescue teams to be available whenever miners are underground or to enter into an arrangement for mine rescue services which assures such availability.  However, the mine rescue station for both of the mine rescue teams must be located within one hour ground travel from the mine.  The old standard required only that the mine rescue station be within two hours ground travel time from the mine.  This requirement applies to a mine upon the initial excavation of a new mine entrance and at any mine re-openings.  Mine operators are responsible for providing rescue team members and equipment ground transportation to the mine.

Small and Remote Mines

Underground mines which are both small and remote are allowed to submit an application for alternative mine rescue capability with the appropriate district manager under Section 49.13.  If granted, the application would remove the requirement that the mine rescue station for both mine rescue teams be within one hour ground travel from the mine.  However, to be considered “small and remote” the total underground employment of the operator’s mine, and any surrounding mines within one hour ground travel time of the operator’s mine, must be less than 36.  Few mines will qualify for “small and remote” mine treatment and those that do qualify still face the hurdle of achieving the district manager’s approval.  If the district manager believes that the alternative mine rescue capability is unsuitable for the mine, he can deny the application regardless of the mine’s size and location.

Composition of Mine Rescue Teams

Mines with more than 36 employees underground must field at least one team comprised of company employees.  If a team is comprised of miners who all work at a single mine, the new standard labels it a “mine-site” team.  If the team is comprised of miners from several mines operated by the same mine operator, that team is labeled a “composite” team.  However, the new standard limits team membership on “composite” teams.  A “composite” team must include at least two members from each large covered mine and at least one member from each covered small mine.  Each of the team members must be knowledgeable about the operations and ventilation of each of the covered mines.

“Contract” teams are provided by an arrangement with another coal mine or a third party.  “Contract” team members must have had a minimum of three years underground coal mine experience within the ten years preceding their employment by the contract mine rescue team.

“State – sponsored” teams are teams composed of state employees.

Training of Mine Rescue Teams

Hours:  The new standard increases the annual refresher training that each mine rescue team member must receive from 40 hours annually to 96 hours. Some portion of that annual training must take place at each of the mines covered by the mine rescue team and a portion of that time must be underground at the mine.

 

Operations and ventilation:  All certified mine rescue teams must be familiar with the operation of each covered mine.  “Composite” teams and “contract” teams must be familiar with the operations and ventilation of each covered mine.  MSHA has indicated that a mine rescue team acquires that knowledge by participating in mine rescue training at the mine. Training may include identifying the designated escapeways, intakes, returns, the ventilation system, location and types of firefighting equipment, the communications system, the mine-wide monitoring system and transportation.  Rescue team members need to be familiar with the location of stored SCSRs, lifelines, breathable air, hardened rooms, and emergency response equipment and supplies.

 

Training at covered mines:  The new standard establishes different training requirements for different types of mine rescue teams.  “Mine-site” teams must participate in mine rescue training at the mine at least annually.  “Composite” teams must participate in mine rescue training at each covered mine at least semi-annually.  “Contract” teams must participate in mine rescue training at each covered large mine at least quarterly and at each covered small mine at least semi-annually.  “State-sponsored” teams must participate in mine rescue training at each covered mine at least annually.

 

Local mine rescue contests:  Every certified mine rescue team must participate in at least two local mine rescue contests each year as a part of the training requirement.

 

Certification

On an annual basis, mine operators are required to send to the district manager a certification that each mine rescue team designated to provide coverage at the mine meets the requirements of Part 49, Subpart B.  This is a comprehensive certification and includes, among other things, team members’ experience, training, equipment, familiarity with the covered mine, and participation in local mine rescue contests.  The new standard includes optional forms which can be completed to comply with the certification requirement.  Alternatively, mine operators can send a letter to MSHA with a brief statement certifying that each team meets the necessary requirements of Part 49, Subpart B.

Mine Emergency Notification Plan

Section 49.19 requires that each mine have a written mine rescue notification plan outlining the procedures to follow in notifying the mine rescue team when there is an emergency at the mine.

Responsible Person

The new standard also amends 30 C.F.R. § 75.1501 which deals with emergency evacuations and the requirement that there be a “responsible person” on each shift where miners are underground to take charge during mine emergencies such as fire, explosion, or gas or water inundation.

The new standard specifies the knowledge that the designated “responsible person” must have and the specific subjects to be included in that individual’s annual training.  The standard also requires the mine operator to certify that the individual has received the required training.

Compliance Dates

The new standard had an effective date of February 8, 2008, but it contains specific “compliance dates” for several portions of the standard.  They are as follows:

 

Date	Section	Requirement
May 8, 2008	49.12 (h)	Statement to DM method of compliance
August 8, 2008	49.12 (f)	1 hour ground travel time to mine rescue station
August 8, 2008	75.1501 (a) (2)	Responsible person trained per standard
November 10, 2008	49.40	Large mines have 1 mine-site or composite team
February 9, 2009	49.18 (b)	Completion of 96 hours of annual training
February 9, 2009	49.20 (a)	Large mines have mine rescue teams familiar with mines and have participated in 2 local mine rescue contests
February 9, 2009	49.20 (b)	Team members meet the team composite requirements
February 9, 2009	49.30	Small mines’ 2 mine rescue teams meet requirement re knowledge of mine
February 9, 2009	49.50	Annual team certification by mine operator

DEPARTMENT OF HOMELAND SECURITY PUBLISHES APPENDIX A TO CHEMICAL FACILITY ANTI-TERRORISM STANDARDS

For Clients and friends of Jackson Kelly PLLC

Volume 15, Number 2, Winter 2007               ©2008 Jackson Kelly PLLC

            On November 20, 2007, the Department of Homeland Security (“DHS”) published a final rule entitled Appendix A to Chemical Facility Anti-Terrorism Standards (“the final rule”).  72 Fed. Reg. 65,396 (Nov. 20, 2007).  The final rule follows the April 9, 2007, publication of DHS’s interim final rule entitled Chemical Facility Anti-Terrorism Standards (“the IFR”).  72 Fed. Reg. 17,688 (April 9, 2007).  In our Summer 2007 Occupational Safety and Health Update, Volume 15, Number 1, we provided our readers with an in-depth discussion of the entirely new regulatory scheme that DHS created with its publication of the IFR.

The IFR included, among other things, “proposed” Appendix A, which listed chemicals of interest (“COI”) and screening threshold quantities (“STQs”).  In addition to revising the list of COI in “proposed” Appendix A, the final rule: (1) adjusts the STQs for certain COI; (2) defines the specific security issue or issues implicated by each chemical of interest and, in some cases, establishes different STQs for COI based upon the security issue presented; and (3) adds provisions that instruct facilities on how to calculate the quantities of COI that they have in their possession. 

Unlike proposed Appendix A, “final” Appendix A contains seven columns that identify specific security issues for each particular chemical of interest.  DHS has set the STQ for each chemical of interest at the baseline amount for that chemical’s security issues(s).  Also unlike proposed Appendix A, final Appendix A does not trigger reporting obligations based on possession of an STQ of “any amount.”  In revising Appendix A, DHS found it necessary to modify and augment the regulatory text of 30 C.F.R., Part 27, to clarify how facilities should use the appendix.  Section 27.203 was added to instruct facilities on how to calculate the STQ for a given chemical and § 27.204 addresses mixtures.  The final rule also makes changes to §§ 27.105, 27.200 and 27.210.

There is no exception for mining or mineral processing operations in the final rule.  The extent of coverage of mines “will depend in part on the type and amount of chemicals present at any given mine facility.”  72 Fed. Reg. at 17,699.  DHS expects that a mine that possesses chemical(s) listed in final Appendix A at the corresponding STQ(s) “will comply with the requirements of § 27.200(b) and complete and submit the Top Screen as required in that section.” 

Id.

Among the “chemicals of interest” listed in final Appendix A are a number of chemicals that may be stored at mining properties, including ammonium nitrate, nitroglycerine, and propane.  Whether a particular mining operation will be required to take any action in connection with the final rule will depend upon whether the operation possesses a listed chemical at the corresponding STQ.  Any mining operation that possesses any of the chemicals listed in Appendix A at or above the STQ for any applicable security issue will have 60 calendar days from the effective date of the final rule to complete and submit a Top-Screen to DHS.  The effective date of the final rule is November 20, 2007.

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP

Denver, Colorado

Responsible Attorney

Karen L. Johnston

(303) 390-0008

kjohnston@jacksonkelly.com

For more information, contact:

Laura E. Beverage Karen L. Johnston	R. Henry Moore	Julia K. Shreve Michael T. Cimino
(303) 390-0003	(412) 434-8801	(304) 340-1000

The Jackson Kelly PLLC Occupational Safety and Health News Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety and Health News Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

If you would like to receive future copies of the Jackson Kelly PLLC Occupational Safety and Health News Alert, please provide your name, your job title, your company name, and your e-mail address to Shawna M. Carlson at (303) 390-0197 or scarlson@jacksonkelly.com. You may also provide the same information of other people in your company who wish to receive these alerts.

If you wish to UNSUBSCRIBE to this legal news alert list, please reply to this e-mail and type the word ‘UNSUBSCRIBE’ in the subject line.

The Rules of the Kentucky Supreme Court require the following: THIS IS AN ADVERTISEMENT.

Karen L. Johnston is responsible for the contents of this alert.

DEPARTMENT OF HOMELAND SECURITY SEEKS COMMENTS ON PROPOSED RULES REGULATING THE SALE AND TRANSFER OF AMMONIUM NITRATE

For Clients and friends of Jackson Kelly PLLC

Volume 16, Number 2, Winter 2008               ©2008 Jackson Kelly PLLC

            Pursuant to an Advance Notice of Proposed Rulemaking (“ANPRM”) released on October 29, 2008, the Department of Homeland Security (“DHS”) seeks comments on a recent amendment to the Homeland Security Act (“HSA”) entitled the Secure Handling of Ammonium Nitrate.  73 Fed. Reg. 64280 (Oct. 29, 2008).  The amendment requires the DHS to regulate the sale and transfer of ammonium nitrate by an ammonium nitrate facility (“ANF”) in an effort to prevent the misappropriation or use of ammonium nitrate in an act of terrorism.

            Section 563 of the 2008 Consolidated Appropriations Act, Subtitle J, Secure Handling of Ammonium Nitrate, Public Law 110-161 (“Section 563”), amends the HSA to require the DHS to regulate the sale and transfer of ammonium nitrate by an ANF to prevent the misappropriation or use of ammonium nitrate in an act of terrorism.  DHS is primarily concerned with ammonium nitrate when used as an explosive or as a fertilizer mixed with fuel oil to create an explosive mixture.  Ammonium nitrate is a fertilizer that is commonly found in agriculture-related operations and is also used commercially as an explosive in the mining industry.  The availability of small-scale packaging in both industries contributes to ammonium nitrate’s susceptibility to theft and misuse in making an improvised explosive device.

            In an effort to prevent the theft and misuse of ammonium nitrate, Section 563 imposes certain conditions on sales or other transfers of ammonium nitrate without regard to the quantities involved.  At its most basic level, Section 563 only allows ammonium nitrate to be transferred between registered ammonium nitrate purchasers and ANFs.  Under Section 563, an ANF is any entity that produces, sells, or otherwise transfers ownership of, or provides application services for ammonium nitrate.  Also under Section 563, an ammonium nitrate purchaser means any person who purchases ammonium nitrate from an ANF.

            Section 563 requires the DHS to develop and implement a regulatory program covering the sale or transfer of ammonium nitrate for the purpose of preventing the misuse of ammonium nitrate.  In furtherance of this mandate, the DHS plans to include four categories of activities in the new rule.  A summary of the four categories and the activities included in each category follows.

Registration Activities:  DHS plans to require ANFs and prospective ammonium nitrate purchasers to apply for registration numbers from DHS in order to sell, transfer, and/or purchase ammonium nitrate.  Prospective registrants would be required to provide specific identifying information to DHS, which would be used by DHS to conduct checks of identifying information of all prospective registrants against identifying information that appears in the Terrorist Screening Database.  Under the program, DHS plans to issue or deny registration numbers within 72 hours of receiving of a complete registration application.

Point-of-Sale Activities:  At points-of-sale, ANFs would be required to verify that potential ammonium nitrate purchasers are registered with DHS.  This verification process would require confirming the ammonium nitrate purchaser’s identity and registration number.  The program would also require ANFs to maintain records of sales or transfers of ammonium nitrate for at least two years after each transaction.  If an ANF failed to maintain such records, the program would allow DHS to impose penalties upon the ANF.

Additional Regulatory Activities/Requirements:   Under Section 563, ANFs and ammonium nitrate purchasers would have an obligation to report the theft or loss of ammonium nitrate to federal law enforcement authorities within one calendar day of discovery of the loss.  DHS would also conduct or oversee regulatory compliance inspections and audits of ANF records to ensure that regulated facilities are properly maintaining records, to monitor compliance with the requirements of Section 563, and to deter or prevent misappropriation of ammonium nitrate for terrorist acts.

Administrative Activities:  Under the proposed rule, DHS would establish an expedited appeals process for applicants denied a registration number.  Specifically, Section 563 requires DHS to resolve any such appeal within 72 hours of receiving a denied individual’s request for appeal.  Furthermore, DHS has authority to assess civil penalties up to $50,000.00 per violation of the regulations and will establish a process for managing both the assessment and potential appeal of any penalty assessed.  Section 563 would also require DHS to establish a threshold percentage of ammonium nitrate in a substance as a prerequisite for that substance to be considered ammonium nitrate for purposes of complying with the statute.

            In the ANPRM, DHS provided a list of comments that will provide the most assistance to DHS during the rulemaking process.  A non-exhaustive list of the subject areas of potential comments that DHS seeks to receive include comments regarding: (i) a verification process for registrations and ammonium nitrate purchases, including methods for verifying the identity of any ammonium nitrate purchaser; (ii) the detonability of ammonium nitrate at certain concentrations, including research being conducted concerning the detonability of ammonium nitrate; (iii) how best to conduct or oversee regulatory compliance inspections and audits of ANF records; (iv) monetary and other costs anticipated to be incurred by U.S. citizens and others as a result of the new compliance requirements; and (v) the best methods or processes for interacting with state and local governments regarding ammonium nitrate security.  Any person desiring to submit written comments on the proposed rulemaking must do so by December 29, 2008. 

 

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP

Denver, Colorado

 

Responsible Attorney

Karen L. Johnston

(303) 390-0008

kjohnston@jacksonkelly.com

 

For more information, contact:

Laura E. Beverage Karen L. Johnston	R. Henry Moore	Julia K. Shreve Michael T. Cimino
(303) 390-0003	(412) 434-8801	(304) 340-1000

The Jackson Kelly PLLC Occupational Safety and Health News Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety and Health News Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

 

If you would like to receive future copies of the Jackson Kelly PLLC Occupational Safety and Health News Alert, please provide your name, your job title, your company name, and your e-mail address to Shawna M. Carlson at (303) 390-0197 or scarlson@jacksonkelly.com. You may also provide the same information of other people in your company who wish to receive these alerts.

 

If you wish to UNSUBSCRIBE to this legal news alert list, please reply to this e-mail and type the word ‘UNSUBSCRIBE’ in the subject line.

 

The Rules of the Kentucky Supreme Court require the following: THIS IS AN ADVERTISEMENT.

 

Karen L. Johnston is responsible for the contents of this alert.

DEPARTMENT OF HOMELAND SECURITY PUBLISHES NEW CHEMICAL FACILITY ANTI-TERRORISM RULES

For Clients and friends of Jackson Kelly PLLC

Volume 15, Number 1, Summer 2007   ©2008 Jackson Kelly PLLC

On April 9, 2007, the Department of Homeland Security (“DHS”) published an interim final rule entitled Chemical Facility Anti-Terrorism Standards (“the IFR”).  72 Fed. Reg. 17,688 (April 9, 2007).  The statutory regulatory authority behind the IFR is Section 550 of Public Law 109-295, which was enacted on October 4, 2006.  Section 550 required the Secretary of Homeland Security to promulgate interim final regulations that establish risk-based performance standards for the security of chemical facilities that “present high levels of security risk.”