Adele Abrams

On Jan. 20, 2012, the U.S. Department of Labor (DOL) released its “Fall 2011” semi-annual regulatory agenda, covering the Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA), as well as a number of other agencies governing employment laws.

The long-overdue release was not explained, nor did MSHA or OSHA offer on-line chat sessions this time to discuss the status of proposals and new initiatives with the regulated community — a departure from the approach taken with the past few releases.

The statement of regulatory priorities for the Department as a whole notes that the DOL is continuing its “Good Jobs for Everyone” strategy, which includes safe and healthful workplaces. It states that the mechanisms to achieve this goal include increased enforcement actions, more education and outreach, and additional regulatory actions to foster compliance.

The DOL’s “P3 Initiative” (Plan, Prevent, Protect) will be maintained, although, as discussed below, one of the key facets of this P3 approach that was delineated in the 2011-2016 strategic plan is now missing from MSHA’s agenda. The concept behind P3 is to require employers to “take full ownership” over their adherence to DOL requirements, and also to promote more openness and transparency that can put workers in a better position to determine whether their workplace “values health and safety.” This has already been advanced, at least in part, by MSHA’s renewed emphasis on miners’ rights through a new brochure and training video.

The P3 regulatory actions already in progress for OSHA and MSHA include rulemaking activities aimed at controlling the spread of infectious diseases, examination of workplaces in underground coal mines, and identifying pattern of violations at all mines. The OSHA “I2P2” initiative (workplace safety and health management programs, known as injury/illness prevention plans) — another key rulemaking under P3 — is also advancing, with a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel set to convene in March 2012.

In the DOL regulatory priorities statement, the agency observes that under P3, employers must create a plan to identify and remediate risks of legal violations and risks to workers, including a plan to inspect workplaces for safety hazards that could injure or kill workers.

Under the DOL’s vision of I2P2, workers must be given opportunities to participate in the creation of these plans, and the plans would have to be made available to workers so they could help monitor their implementation. The prevention aspect of P3 requires employers to completely implement such plans to ensure that there are no legal violations, not simply a “paper process.” The protection phase requires employers to verify, on a regular basis, that the plan’s objectives are actually being met — that the plan actually protects workers from health and safety risks and other violations of their workplace rights (e.g., under Section 105C of the Mine Act, which covers miners’ rights and whistleblower protections).

MSHA’s regulatory plan key rulemakings (aside from the Pattern of Violations listed above, which applies to all sectors) are focused on the coal sector. These include the aforementioned finalization of a new standard to clarify examination requirements in underground coal work areas (set for completion in March 2012); lowering miners’ exposure to coal dust and requirements for the use of continuous personal dust monitors in coal mines, both of which are set for completion in April 2012.

Both OSHA and MSHA will also be involved in regulatory actions to protect workers from the hazards of equipment that can pin, crush, or strike them through the use of proximity detection devices that could be employed during backing maneuvers.

The DOL indicates that technologies under consideration to prevent backing accidents include cameras, radar, and sonar to help view or detect the presence of workers on foot in blind areas. New monitoring technology, such as tag-based warning frequencies, which use radio and magnetic field generators to detect tags worn by workers, will also be considered. The MSHA proposal was slated for release in January 2012, but, obviously, that deadline has not been met. OSHA plans to issue a Request for Information in February 2012.

Another rulemaking item common to both OSHA and MSHA is modification of the crystalline silica standard, but OSHA will take the lead on that rulemaking. The silica rule went through a SBREFA panel years ago, and OSHA’s proposed rule has been hung up at the Office of Management and Budget’s OIRA agency now for nearly a year.