On September 8, 2021, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced its proposed powered haulage rule for surface mines and surface areas of underground mines. The proposed rule, which is open to public comment through November 8, 2021, will be set out at a new 30 C.F.R. §§ 56.23000–23004; §§ 57.23000–23004; and §§ 77.2100–2104 (surface coal). The proposed rule would require mine operators with six or more miners to develop and implement a written powered haulage safety program. The rule would not apply to belt conveyors. According to MSHA, this rule would not create any “universal mandates” regarding the specifics of each operator’s program.

Instead, operators would be allowed to tailor the safety program to their specific operations and mining conditions. MSHA explains that this format would enable operators to “(1) [s]ystematically and continuously evaluate their mine operations to identify hazards and (2) determine how to eliminate or mitigate risks and hazards related to operating and working near surface mobile equipment, which includes mobile and powered haulage equipment (except belt conveyors).” MSHA explains that this flexible approach was recommended in numerous industry comments that it received to its 2018 Request for Information.

The operative provisions of the new rule would require operators to “develop and implement a written safety program for surface mobile equipment within 6 months after the effective date of the final rule.” Within those six months, operators would also be required to designate a “responsible person” who would have the “authority and responsibility to evaluate and update [the] written safety program.” MSHA clarifies the responsibilities and qualifications of a responsible person as follows:

This individual should be able to communicate the operator’s commitment to safety and the importance of miners’ involvement in the program to prevent or mitigate hazards. The responsible person must communicate the goals of the safety program to all miners, including contractors. The responsible person would need to have the experience and knowledge about mining conditions, including surface mobile equipment, necessary to develop and manage the safety program, as well as experience and knowledge necessary to maintain and evaluate any controls and best practices.

The proposed rule sets out a number of requirements for the written safety program. Specifically, the written safety program must establish steps that “the operator would take to:

1. [i]dentify and analyze hazards and reduce the resulting risks related to the movement and the operation of surface mobile equipment;

2. develop and maintain procedures and schedules for routine maintenance and non-routine repairs for surface mobile equipment;

3. identify currently available and newly emerging feasible technologies that can enhance safety at the mine and evaluate whether to adopt them; and

4. train miners and other persons at the mine necessary to perform work to identify and address or avoid hazards related to surface mobile equipment.”

A significant feature of the proposed rule is the provision that would require the designated responsible person to “evaluate and update the written safety program at least annually or as mining conditions or practices change, accidents or injuries occur,” new mobile equipment is introduced, or existing equipment is modified. These proposed requirements, including the mandate set out above to “identify newly emerging feasible technologies,” could lay the groundwork for enforcement personnel to second-guess their decisions in the future. How MSHA would direct its inspectors to evaluate compliance with these written safety programs—which do not require MSHA approval—is likely to be a major focus of the public comment process.

As noted above, MSHA has set November 8, 2021, as the deadline for providing comments. All comments must be received or postmarked by midnight (Eastern) on that date. The agency has specifically asked commenters to address the following issues:

• Should there be a six-miner threshold for application of the written safety program requirement?

• Should belt conveyors be excluded from the final regulation?

• What best practices should be incorporated in the written safety programs?

• Is six months sufficient time to develop and implement a written safety program?