[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Rules and Regulations]
[Pages 41364-41368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13753]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 75
[Docket No. MSHA-2013-0032]
RIN 1219-AB84
Refuge Alternatives for Underground Coal Mines
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Final action.
-----------------------------------------------------------------------
SUMMARY: The Mine Safety and Health Administration (MSHA) is notifying
the mining community and other interested parties of the Agency's
determination that the existing standards addressing the frequency of
miners' training on refuge alternatives for underground coal mines
effectively protect miners' safety and will remain in effect without
change. This determination responds to a decision from the United
States Court of Appeals for the District of Columbia Circuit.
DATES: July 10, 2020.
FOR FURTHER INFORMATION CONTACT: Roslyn B. Fontaine, Deputy Director,
Office of Standards, Regulations, and Variances, MSHA, 201 12th Street
South, Arlington, VA 22202 (mail); [email protected] (email);
202-693-9440 (voice); or 202-693-9441 (facsimile). These are not toll-
free numbers.
SUPPLEMENTARY INFORMATION:
I. Background
On December 31, 2008, MSHA published a final rule, Refuge
Alternatives for Underground Coal Mines, establishing requirements for
refuge alternatives in underground coal mines.\1\ See 73 FR 80656; see
generally 30 CFR part 7, subpart L; id. part 75, subpart P. The final
rule requires mine operators to provide training regarding the
deployment and use of refuge alternatives, including three types of
training--annual motor-task (hands-on), decision-making, and
expectations training. 30 CFR 75.1504(c). Motor-task (hands-on)
training consists of performing activities necessary to safely and
effectively deploy and use a refuge alternative and its components.
Decision-making training consists of learning when it is appropriate to
use refuge alternatives rather than to
[[Page 41365]]
attempt escape from the mine. Expectations training consists of
anticipating and experiencing the conditions that might be encountered
during use of a refuge alternative (e.g., heat and humidity, confined
space).
---------------------------------------------------------------------------
\1\ A refuge alternative is a protected, secure space with an
isolated atmosphere and integrated components that create a life-
sustaining environment for persons trapped in an underground coal
mine. 30 CFR 7.502.
---------------------------------------------------------------------------
On January 13, 2009, the United Mine Workers of America petitioned
the United States Court of Appeals for the District of Columbia Circuit
(Court) to review MSHA's refuge alternatives final rule. The Court
issued its decision on October 26, 2010. See Int'l Union, United Mine
Workers of America v. MSHA, 626 F.3d 84 (D.C. Cir. 2010). The Court
held that MSHA was not bound by recommendations of the National
Institute for Occupational Safety and Health (NIOSH), but that MSHA had
failed to adequately explain its departure from NIOSH's quarterly
training recommendations. The Court found that MSHA's ``conclusory''
reliance on its ``knowledge and expertise'' was unsupported by the
rulemaking record. Id. at 93. Among other considerations, the Court
described analysis from a NIOSH study that found that, after 90 days,
miners' ability to accomplish the six-step process for donning self-
contained self-rescuers (SCSRs) severely deteriorated \2\--
deterioriation that NIOSH presumed would be similar for the referenced
eighteen-step process needed to operate refuge alternatives. See id. at
87-88, 93.
---------------------------------------------------------------------------
\2\ An SCSR is an apparatus worn by individual miners in
underground coal mines that can be used to provide at least one hour
of breathable air to enable miners to escape from the mine or to
reach a refuge alternative when the mining environment, due to
smoke, inadequate oxygen and/or carbon monoxide, would not support
human life. See 30 CFR 75.2 and 75.1714.
---------------------------------------------------------------------------
The Court remanded, but did not vacate, the final rule. It directed
MSHA to explain the basis for the training frequency provision from the
existing record or to reopen the record and allow additional public
comment if needed. Id. at 86, 94. MSHA then reopened the record twice
to obtain public comments on the appropriate frequency of motor-task
(hands-on), decision-making, and expectations training for miners to
deploy and use refuge alternatives in underground coal mines. See 78 FR
48592 (Aug. 8, 2013); 78 FR 68783 (Nov. 15, 2013).
II. MSHA's Current Standards Effectively Protect Miners
MSHA received three comments after reopening the record. Two of
those comments favored retaining the existing rule.
The first commenter recognized that escape--not seeking refuge--is
the first line of defense in an underground coal mine in an emergency.
AB84-COMM-1. The commenter described the quarterly training miners
currently receive in using SCSRs and additional quarterly training
concerning storage locations for SCSRs, escapeways, and lifelines, as
well as review of refuge alternative deployment and use. The commenter
highlighted how training related to SCSRs in particular is likely the
highest-quality training miners receive during their careers, and
asserted that studies reveal ``the single-most important element of
survival [in] a mining disaster [is] the ability to properly don the
[SCSR] and exit the mine.'' The commenter believed that resources for
quarterly deployment of refuges and related motor-task (hands-on)
training would be better utilized if miners were prepared for prompt,
orderly, and efficient escape during a mine disaster through
comprehensive SCSR, lifeline, and escapeway training. The commenter
also described costs associated with quarterly motor-task (hands-on)
training for deploying refuge alternatives. The commenter concluded
``that the current refuge chamber alternative training requirements are
adequate,'' and MSHA agrees.
A second commenter opposed changing the rule and agreed with MSHA
that the final rule provided adequate miner training regarding when to
use refuge alternatives. AB84-COMM-3. The commenter recognized that
mine operators could supplement the mandated quarterly review of the
procedures for deploying and using the refuge alternatives with limited
motor-task (hands-on) training using a panel mock-up of the valve and
door arrangements of the refuge alternatives in use at the mine, as
well as video training. The commenter stated that training using a
mock-up of the doors and valves would provide both motor-task (hands-
on) and expectations training. MSHA agrees with the substance of these
comments, which are consistent with MSHA's resolution of this issue,
and the Agency supports initiatives, as deemed appropriate by
individual operators, to supplement existing quarterly refuge
alternative deployment and use training as described by the commenter
and as discussed below.
The third commenter stated that annual deployment and use of a
refuge alternative is inadequate and, based in part on NIOSH's 2007
report,\3\ advocated quarterly motor-task (hands-on) training. AB84-
COMM-2. The commenter argued that the task of donning an SCSR, for
which quarterly motor-task (hands-on) training is required, is not as
difficult as deploying a refuge chamber. This commenter also stated
that decision-making and expectations training should be provided
quarterly in order to adequately train miners for emergency situations.
MSHA disagrees with the commenter's arguments and analysis, as
explained below.
---------------------------------------------------------------------------
\3\ NIOSH, Office of Mine Safety & Health, Research Report on
Refuge Alternatives for Underground Coal Mines, Dec. 2007.
---------------------------------------------------------------------------
After considering these comments, MSHA believes it should retain
the final rule without revision. This approach is consistent with the
training requirements in West Virginia, the only state that specifies
training for refuge alternative deployment requirements. MSHA concludes
that annual motor-task (hands-on), decision-making, and expectations
training, supplemented by existing mandated quarterly review of
deployment and use procedures, as well as existing mandated quarterly
evacuation training and quarterly evacuation drills with review of a
mine's evacuation plan, which include discussion of emergency scenarios
and options for escape and refuge, will prepare miners to deploy and
use refuge alternatives appropriately and effectively in an emergency.
Motor-Task (Hands-On) Training
MSHA's determination regarding the appropriate frequency for motor-
task (hands-on) training on refuge alternatives is supported by how
miners are trained to use, and must use, SCSRs in emergencies; the
overlap between the actions miners take in the normal course of mining
and the actions necessary to deploy and use refuge alternatives; and
how existing quarterly training already addresses the sequence of steps
needed to deploy and use a refuge alternative.
Miners are trained to use--and, in emergencies, historically have
used--SCSRs, which will facilitate miners' subsequent deployment of
refuge alternatives when escape from the mine is not possible. When
donning an SCSR, miners are faced with a perceived immediate threat to
their lives. In a toxic environment, a single breath could kill a
miner. A miner must don an SCSR immediately so he or she can continue
breathing in the moments after ascertaining the need for the SCSR.
Consequently, miners must be able to don the SCSR by instinct, relying
on instant recall of the SCSR donning process, a process that requires
performing actions not otherwise undertaken during the normal course of
mining. Given the need to immediately don an SCSR in an environment in
[[Page 41366]]
which miners often cannot see instructional material, as well as the
impracticality of associating instructional materials with individual
SCSRs, miners cannot benefit from manuals and other guidance while
donning an SCSR.
By contrast to the need to immediately don SCSRs without the
benefit of written instruction, a miner deploying a refuge alternative
will have the benefit of an SCSR and, therefore, significantly more
time to deploy the refuge alternative. The 60-minute oxygen supply
associated with an SCSR provides miners up to 30 minutes to travel to a
refuge alternative and at least 30 additional minutes to deploy the
refuge alternative.\4\ Thus, miners will have time to review
instructions/manuals located at (and inside) the refuge alternative and
to be more deliberative in their recall of the skills and knowledge
acquired during their training sessions. Once inside the isolated
atmosphere after completing the initial actions necessary to deploy a
refuge alternative, and where they are free from smoke and other
contaminants that may be associated with the mine environment during an
emergency, miners can refer to the available manual, quick-start
guides, or signage, and they can work cooperatively (when there is more
than one miner) and deliberately to complete deployment of the refuge
alternative.
---------------------------------------------------------------------------
\4\ The final rule provides that miners never will be more than
a 30-minute travel distance from either a refuge alternative or a
safe exit from the mine. 30 CFR 75.1506(c).
---------------------------------------------------------------------------
The rulemaking record supports MSHA's general understanding and
approach. During a July 31, 2008, public hearing seeking comment
regarding the proposed refuge alternative rule, a witness testified
that, after clearing a refuge alternative's airlock, miners could start
the flow of oxygen within minutes and would be in a safe environment,
allowing them ample time to reference available placards and manuals,
if needed, and undertake subsequent steps necessary to maintain a
breathable environment within the unit. MSHA Public Hearing, 7/31/08,
pg. 91; See https://arlweb.msha.gov/REGS/Comments/E8-13565/Transcripts/20080731CharlestonWV.pdf.
Additionally--and unlike the actions needed to use an SCSR--the
actions that must be performed to deploy and use a refuge alternative
are similar to many actions in which miners regularly engage during the
course of normal mining operations. For example, the operation of
valves on oxygen and acetylene compressed gas cylinders used when
conducting maintenance activities, such as cutting and welding, is
similar to the operation of valves associated with refuge alternatives.
In addition, many miners carry, and routinely use, gas monitors like
those used in the deployment and use of a refuge alternative to measure
gaseous concentration levels during their shifts. Further, the design
and use of access doors and latches located on refuge alternatives are
similar to existing airlock doors and personnel doors that are located
at various points of the mine where miners often travel and work. In
part because of this overlap, MSHA has determined annual motor-task
(hands-on) training on refuge alternatives is adequate.
In addition to having the benefit of SCSRs, as well as signage,
brief written instructions (e.g., quick start guides), and manuals, and
familiarity with basic actions developed through their work
experiences, miners also already receive quarterly training on the
procedures to deploy and use refuge alternatives. 30 CFR 75.1504(b)(6)
and (8). Because miners have familiarity with many of the underlying
physical actions needed to deploy and use a refuge alternative
effectively, MSHA has concluded that it is more important for miners to
know the order in which those actions need to be performed--a sequence
that is addressed during the quarterly training.
When deploying a refuge alternative, miners must perform the
following steps: \5\
---------------------------------------------------------------------------
\5\ While the Court referenced an 18-step process for deploying
an using a refuge alternative, Int'l Union, United Mine Workers of
America v. MSHA, 626 F.3d at 87-88, 93, the referenced process
includes discrete, minor actions that more appropriately are
included within the five steps listed above. Indeed, NIOSH similarly
has recommended development of four-step Quick Start Guides for the
deployment and use of refuge alternatives [Guidelines for
Instructional Materials on Refuge Chamber Setup, Use, and
Maintenance, IC 9514, NIOSH 2009, page 7].
---------------------------------------------------------------------------
(1) Open/inflate the unit;
(2) enter the airlock and purge contaminants;
(3) enter the livable space and turn on oxygen;
(4) deploy carbon dioxide scrubbing material;
(5) begin to monitor air quality.
After performing the first three steps, the miners are in the
habitable space and have ample time to safely perform the remaining
actions. MSHA agrees with a commenter that the mandated quarterly
review of deployment procedures, including these initial steps,
effectively reinforces the annual training that miners receive (see 30
CFR 75.1504(b)(6); AB58-COMM-21, pgs. 3-4). MSHA's confidence that
miners effectively will learn and remember the necessary steps, and the
order in which they are performed, through annual motor-task (hands-on)
training and quarterly review is supported by the facts that the steps
are relatively few in number and the order in which they are performed
is consistent with the manner in which one naturally would seek refuge
from a dangerous environment into a secured, breathable environment--
i.e., prepare the unit for use; leave the dangerous mine environment
for the enclosed airlock; purge hazardous gasses that may have entered
the airlock during entry; enter the unit's livable space and start the
flow of oxygen; activate the carbon dioxide scrubbing material; and
monitor to assure the appropriate oxygen and carbon dioxide
concentrations during habitation. Therefore, motor-task (hands-on)
retraining on the deployment and use of refuge alternatives does not
need to be as frequent as motor-task (hands-on) training for the
donning of an SCSR, particularly in light of the related, quarterly
refuge alternative deployment and use training mandated in 30 CFR
75.1504(b)(6) and (8).
MSHA notes that its conclusion regarding the appropriate
frequencies for training miners parallels the frequencies at which
miners must be trained under West Virginia state law. In response to
mine accidents in 2006, the State of West Virginia also supplemented
its provisions for protecting miners in an emergency, including
provisions related to SCSRs and emergency shelters/chambers.
Recognizing the critical importance of donning an SCSR immediately and
effectively in an emergency (Mine Safety Technology Task Force Report--
May 29, 2006 at https://minesafety.wv.gov/PDFs/MSTTF%20Report%20Final.pdf),\6\ the West Virginia legislature mandates
that miners receive quarterly SCSR training. See, WV Code section 22A-
2-55(f)(1); W. Va. Code St. R, section 56-4-5.3. Conversely, pursuant
to State law, miners receive training in the proper
[[Page 41367]]
use of emergency shelters/chambers on an annual basis. See W. Va. Code
St. R, section 56-4-8.14.2.
---------------------------------------------------------------------------
\6\ MSHA notes that the West Virginia Task Force, which included
two representatives from the United Mine Workers of America, as well
as industry representatives, addressed training regarding the use of
SCSRs extensively in their report, while providing more limited
discussion of training to be associated with emergency shelters/
chambers. See Mine Safety Technology Task Force Report at 36, 38-38,
42, 52-3, 59, 107-09. The Task Force ultimately recommended that
mine operators provide a shelter/chamber plan that, among other
things, ``ensure[s] that emergency shelters/chambers are included in
initial mine hazard training in such a manner that it is in
compliance with all manufacturer's requirements and is provided
yearly in addition to annual refresher training.'' Id. at 17, 59.
---------------------------------------------------------------------------
When deploying refuge alternatives, miners have the benefit of
SCSRs and written instruction, familiarity with basic actions needed to
deploy and use refuge alternatives, and, in addition to annual motor-
task (hands-on training), quarterly training on the sequence of steps
and procedures for deployment and use. In light of these
considerations, and consistent with training requirements contained in
West Virginia law, MSHA believes annual motor-task (hands-on) training
on the use of refuge alternatives effectively protects miner safety.
Decision-Making and Expectations Training, Collectively
MSHA's divergence from NIOSH's quarterly decision-making and
expectations training recommendation reflects the absence of NIOSH-
cited research and the limited analysis regarding the appropriate
frequency for providing such training. While favorably referencing
research and analysis underlying NIOSH's recommendation that motor-task
(hands-on) training be performed on a quarterly basis, the Court's
holding reflects that, while NIOSH recommended that decision-making and
expectations training be included in conjunction with hands-on
quarterly training, NIOSH had not performed any specific research
regarding the appropriate frequency for providing decision-making and
expectations training. See Int'l Union, United Mine Workers of America
v. MSHA, 626 F.3d at 87-88, 93 (referencing NIOSH and UMWA-identified
studies regarding recollection following motor-task (hands-on)
training, while merely mentioning NIOSH's more cursory recommendation
that decision-making training and expectations training be given at the
same time as the motor-task (hands-on) training). MSHA agrees with
NIOSH that decision-making and expectations training practically could
be performed in conjunction with motor-task (hands-on) training. See
NIOSH's Research Report On Refuge Alternatives For Underground Coal
Mines at 15. However, NIOSH's recommendation appears to be based on
utilizing an opportunity to provide these trainings in tandem, rather
than on identified research and/or substantive analysis evidencing a
verified improvement in safety outcomes associated with quarterly
decision-making and expectations training. See, e.g., Issues Regarding
Refuge Chamber Training, referenced on Page 3 of NIOSH's Research
Report On Refuge Alternatives For Underground Coal Mines (``The optimum
intervals for retraining on a refuge chamber are not known.''). MSHA
finds the fact that decision-making training and expectations training
could be conducted in conjunction with motor-task (hands-on) training
to be an insufficient basis to justify the provision of such training
at intervals more frequently than was demonstrated in the NIOSH report
and research to be needed for miner safety.
Decision-Making Training
MSHA has determined that the decision-making training currently
required on an annual basis is effective in protecting miner safety and
is enhanced by other safety measures that inform miners' decision-
making during emergencies.
MSHA requires annual training to include instruction on the
deployment and use of refuge alternatives, including their component
systems, and on decision-making training. See 30 CFR 75.1504(c)(3)(ii)
(requiring ``[i]nstruction on when to use refuge alternatives during a
mine emergency, emphasizing that it is the last resort when escape is
impossible'' (emphasis added)). The existing rule also requires
quarterly evacuation training and quarterly evacuation drills, as well
as review of a mine's evacuation plan, which include discussion of
emergency scenarios and options for escape and refuge. See 30 CFR
75.1502(c)(4) and 75.1504(a) and (b)(3)-(4). The quarterly evacuation
training and quarterly evacuation drills complement the annual
decision-making training because they require consideration of the best
options for miners in various mine emergency scenarios, including the
option to seek shelter in a refuge alternative and the application of
survival strategies, which would address the relative merits of escape
and shelter options in specific emergency situations, during realistic
escapeway drills. See 30 CFR 75.1502(c)(4)(vi) and 75.1504(b)(3).
Decision-making training materials developed by NIOSH help miners
better understand the factors relevant to a determination regarding the
ability to escape versus the need to take refuge. These and similar
materials can and should be used during the quarterly training sessions
and quarterly drills. See NIOSH materials at http://www.cdc.gov/niosh/mining/content/refugechambers.html#TheRefugeChamberTrainingModules.
In addition to this training, other factors enhance miners'
decision-making. Real-time information concerning the specific nature
of an emergency and actual post- accident conditions in the mine--in
conjunction with miners' knowledge of the mine's layout and features
from their daily work and travel in the mine--is critical to making
sound determinations about when to escape and when to seek refuge. The
Mine Improvement and New Emergency Response Act of 2006 (MINER Act)
sought to provide miners with this situation-specific information.
Since publication of the refuge alternatives final rule, emergency
communication and electronic tracking systems mandated by the MINER Act
have been installed in all underground coal mines. See 30 U.S.C.
876(b)(2)(F)(ii). These systems allow surface personnel to determine
each miner's underground location and to convey real-time information
to miners about the nature of the emergency and the mine conditions
that they may encounter along various available escape routes. While
these systems were not installed when the refuge alternatives final
rule was promulgated, and thus not explicitly considered when
establishing the rule's training intervals, MSHA recognizes that the
present availability of these tracking and communication systems
provides situation-specific, real-time information on conditions in an
underground mine. In turn, better information and communication help
miners make the right decisions in an emergency, such that the annual
training, the quarterly drills, and the real-time information will
allow miners effectively to choose whether to attempt escape or to seek
shelter in specific situations that might be encountered during an
emergency. Given these systems and existing quarterly and annual
training, MSHA believes additional decision-making training is
unnecessary and that the final rule effectively protects miners'
safety.
Expectations Training
Expectations training involves the actual, annual deployment and
use of a refuge alternative (see 30 CFR 75.1504(c)(3)) and simulates
the experience of being enclosed with other miners in a refuge
alternative with supplied air, limited space, and limited light. Given
the unique and visceral nature of such an experience, MSHA has no
reason to believe that quarterly training is necessary for miners to
remember the experience of occupying a refuge alternative.
Moreover, expectations training is intended to provide miners a
basic understanding of the general sensation associated with occupancy
in a refuge
[[Page 41368]]
alternative, so as to minimize some of the stress and/or disorientation
that otherwise may accompany occupancy in an emergency situation. The
training goal is accomplished when miners experience and appreciate the
physiological and psychological sensations that can be expected when
occupying a refuge alternative, and is not dependent on miners
mastering and remembering detailed or sequential information.
Importantly, this type of training is materially distinct in nature
from the type of training associated with SCSR use (which involves
mastery of, and immediate, highly-accurate performance of, multi-step
actions) that NIOSH referenced when generally suggesting quarterly
training for all aspects of refuge alternative deployment and use.
Given the experiential nature of expectations training, as well as the
unique and visceral nature of the experience, MSHA has determined that
annual expectations training provides an experience sufficient to
enable miners to apply their knowledge, other training, and available
written instruction to effectively use the refuge alternative in an
emergency.
III. Conclusion
For the reasons stated above, MSHA concludes that annual motor-task
(hands-on), decision-making, and expectations training--supplemented by
existing mandated quarterly reviews, instructions, and drills--
effectively will prepare miners to deploy and use a refuge during an
emergency. Accordingly, the existing rule Refuge Alternatives for
Underground Coal Mines remains in effect without change.
Authority: 30 U.S.C. 811.
David G. Zatezalo,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 2020-13753 Filed 7-9-20; 8:45 am]
BILLING CODE 4520-43-P