Revised Accident Reporting Rule Now in Effect: MSHA

The agency decided submitted comments weren't "significant adverse comments" because the commenters had not understood what MSHA meant when it added "any other accident."

Tuesday's Federal Register contained a brief Mine Safety and Health Administration item stating its direct final rule changing the current definition of mine accidents that must be reported within 15 minutes is now in effect. MSHA said it reviewed submitted comments and decided they weren't "significant adverse comments" because the commenters had not understood what MSHA meant when it added "any other accident."

"The impact of this rule will change the way that all mining companies are forced to report ALL accidents," J.S. "Jim" Smiser, safety director of San Antonio-based Alamo Cement Company Ltd., had written in his five-page comment. "This action will just clog the court system with the additional cases that this will produce. . . . The mining companies will be forced to take legal action on each mandated 15 minute call to MSHA due to the potential penalty that will be assessed. The cost of this will be pasted on to the employees in the lack of jobs and reduction of pay."

Section 50.10 of the direct final rule says mine operators must contact MSHA immediately if one of these occurs: 1) death of an individual at the mine, 2) injury of an individual at the mine which has a reasonable potential to cause death, 3) entrapment of an individual at the mine which has a reasonable potential to cause death, or 4) any other accident.

"Number (4) any other accident is a real problem," Smiser wrote. "This opens the door to a full set of compliance problems and MSHA abuse of power in the interpretation of accident. This can be said that any accident, no matter how small, as a first aid case, must be reported within 15 minutes with all the time tracking of a serious accident. A first aid case which requires a band-aid will be reported in 15 minutes and is subject to a penalty of $5,000.00 to $60,000.00 is ridiculous. This is out and out legal thief action."

In announcing the rule took effect March 29, 2010, because no significant adverse comments were received, MSHA said this: "MSHA received comments on the direct final rule indicating that some members of the mining industry misunderstood the Agency's intent. For clarification, the Agency intends that the phrase, 'Any other accident,' as used in paragraph (d) of MSHA's standard at Sec. 50.10 refers to:
* An entrapment of an individual for more than 30 minutes; and
* Any other accident as defined in Sec. 50.2(h)(4)-(12).

[This is the list in (4)-(12):
(4) An unplanned inundation of a mine by a liquid or gas;
(5) An unplanned ignition or explosion of gas or dust;
(6) In underground mines, an unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery;
(7) An unplanned ignition or explosion of a blasting agent or an explosive;
(8) An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage;
(9) A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour;
(10) An unstable condition at an impoundment, refuse pile, or culm bank which requires emergency action in order to prevent failure, or which causes individuals to evacuate an area; or, failure of an impoundment, refuse pile, or culm bank;
(11) Damage to hoisting equipment in a shaft or slope which endangers an individual or which interferes with use of the equipment for more than thirty minutes; and
(12) An event at a mine which causes death or bodily injury to an individual not at the mine at the time the event occurs.]

MSHA proposed the changes Dec. 29, 2009, and said it wanted to make the changes so staffers wouldn’t have to review each citation to determine whether the 15-minute regulation had been violated. Comments were due by March 1. The Dec. 29 proposal defined a significant adverse comment as one that explains:
(1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or
(2) Why the direct final rule will be ineffective or unacceptable without a change.

Reached by phone Wednesday, Smiser said MSHA has changed significantly since he worked for 22 years as an MSHA inspector; he said he retired in 1998. The agency's decision in this rulemaking still allows it too much leeway in interpreting citations and thus opens the door for inspectors to write more citations, said Smiser. "That makes it almost imperative that we challenge everything," he said. "Right now, we see the gravity of everything being raised for no reason. You [MSHA field supervisors and inspectors] are getting right now a lot of verbal commandments, let's say, that are not written down" but must be followed, and Smiser said he has asked for but been unable to find written authority for some of them. For example, he said he has been told that MSHA is not granting lower-gravity citations to companies when they have been accused of violating any of 13 specific standards, but Smiser said he has been told no written version of that order exists.

"This is a completely different agency" than he knew when he worked at MSHA, Smiser said. "It's out of control."  


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