by erik dullea
Coal mine operators could face a dilemma with the annual proficiency and training requirements of the Mine Improvement and New Emergency Response Act (Miner Act) and the regulations Subpart Mine Rescue Teams for Underground Coal Mines conflicting with COVID-19 risk mitigation efforts.
In 2006, Congress enacted the Miner Act to improve the safety of mines and mining and directed the U.S. Mine Safety and Health Administration (MSHA) to promulgate additional regulations regarding coal mine rescue teams. Congress required MSHA’s regulations to cover several items.
Specifically, operators must have a knowledgeable employee in mine emergency response at the mine each shift and make available two certified mine rescue teams.
Teams must participate at least annually in two local mine rescue contests and in mine rescue training at the mines covered by the mine rescue team.
In addition to the items required by Congress, MSHA’s regulations included additional training and certification requirements for rescue teams’ annual refresher training:
•At least 96 hours of refresher training, which includes local mine rescue contests and training at the covered mine. The 96 hours must be scheduled with at least eight hours given every two months and consist of:
– Underground training sessions once every six months;
–Wearing mine rescue apparatus for two-plus hours every two months;
– Wearing mine rescue apparatus in smoke, simulated smoke or an equivalent environment at least once each year.
•Mine rescue team members who miss more than eight hours of training in one year are ineligible to serve on a team, unless additional make-up training is received.
The provisions require rescue team members to complete certain tasks within a defined time period. COVID-19 precautions have forced some organizations to cancel local mine rescue contests, some miners to self-isolate as a precaution following potential exposure to COVID-19, and miners in the National Guard and Reserves were called to assist civil authorities. As a result, the window of opportunity to complete training requirements before the end of 2020 has shrunk significantly.
During the April stakeholder call, MSHA encouraged miners and operators to follow the governmental guidance that followed the presidential proclamation declaring a national emergency regarding COVID-19.
In the same call, MSHA stated it was extending the timeframe for renewal of annual certifications for at least as long as the president’s emergency declaration was in effect, and this included the timelines for mine rescue training. MSHA indicated it would also try to accommodate emergency declarations made by state governments.
But during the June 30 stake-holder call, MSHA’s answers to questions about completing local mine rescue contests changed slightly. MSHA stated the Miner Act does not offer any flexibility on the requirement to complete two contests, and MSHA does not plan on altering the requirement. Additionally, despite all of the cancellations in the first half of 2020, there are still nine local mine rescue contests scheduled this year, so the requirements can still be met. However, if conditions prohibit operators from participating, MSHA would look at alternative solutions.
There should be no debate that the mine rescue training and experience requirements are valuable and beneficial to a mine rescue team’s performance during an emergency. When MSHA published the coal mine rescue regulations in 2008, MSHA wrote, “Rescue contests are designed to sharpen skills and test the knowledge of team members who would be called on to respond to a mine emergency. Historically, mine rescue contests have provided individuals with practical, hands-on experience and are one of the most effective forms of training.”
I am sympathetic toward MSHA’s COVID-19 challenges. Our government is trying to find solutions to a new and evolving problem — akin to building an airplane as it rolls down the runway. MSHA should give district managers and regional administrators the flexibility to approve temporary solutions for 2020-2021 that enable rescue teams to train now, even if the structure of the training is different than in previous years.
Erik Dullea is a partner with Husch Blackwell. He can be reached at firstname.lastname@example.org.