What to Expect from MSHA in 2016 Jonathan R. Ellis Steptoe & Johnson PLLC 707 Virginia St. East, 17 th Floor Charleston, WV (304)

What to Expect from MSHA in 2016 Respirable dust rule - implementation of the final phases (30 C.F.R. § ); Proximity detection rule for CMs - implementation of the second phase (30 C.F.R. § ); New proximity detection rule for shuttle cars and scoops (30 C.F.R. § ); Revised penalty rule (30 C.F.R. § 100)

Respirable Dust Rule The 2014 respirable dust rule included two final phase in periods in 2016: – February 1, 2016: Use of CPDMs and increased sampling – August 1, 2016: Lowering of respirable dust limits

Respirable Dust Rule February 1, 2016 deadline: – CPDMs must be used for occupations with highest respirable dust concentrations and for Part 90 miners. – Sampling frequency in UG mines increases from 5 valid samples bimonthly to 15 valid samples quarterly for jobs with highest respirable dust exposure and Part 90 miners.

Respirable Dust Rule February 1, 2016 deadline: – CPDM sampling results (except for Part 90 miners) must be posted within 12 hrs. – Part 90 miners must be given a copy of the data within the first hour of their next shift.

Respirable Dust Rule August 1, 2016 Deadlines: – Respirable dust limit is lowered from 2.0 milligrams per cubic meter of air to 1.5 mgs per cubic meter of air. – Respirable dust limit for Part 90 miners and air used to ventilate places where miners work is lowered from 1.0 mg/m 3 to 0.5 mg/m 3.

Respirable Dust Rule Murray Energy, et al. & NMA, et al v. MSHA (11 th Cir.) – Murray Energy and others challenged various aspects of the respirable dust rule in the 6 th Circuit. – NMA and others challenged the rule in the 11 th Circuit. – Those challenges were consolidated before the 11 th Circuit.

Respirable Dust Rule Murray Energy & NMA v. MSHA (11 th Cir.) – On Monday, the 11 th Circuit denied the industry’s petitions for review, stating: “MSHA acted consistently with its statutory authority in promulgating the New Dust Rule…. Substantively, MSHA’s decisions comport with the requirements of the statute and are not otherwise arbitrary, capricious, or an abuse of discretion. Accordingly, we deny the petitions for review.”

Proximity Detection Rule for CMs The proximity detection rule for continuous miners became effective on March 16, 2015 and is to be implemented in 3 phases. The second of those phases is schedule for completion by September 16, 2016.

Proximity Detection Rule for CMs Phase 2 of the Proximity Rule for CMs: – CMs manufactured and provided with proximity detection systems prior to 3/16/15 must meet the requirements of the rule by 9/16/16. – MSHA has stated that CMs which will require completely new proximity detection systems will be handled under Phase 3. The deadline for Phase 3 is March 16, 2018.

Proposed Proximity Detection Rule for Shuttle Cars and Scoops Sept. 2, 2015 DOL published a proposed rule requiring proximity detection systems on coal haulage equipment and scoops. Comment period for the rule closed on December 1, 2015.

Proposed Proximity Detection Rule for Shuttle Cars and Scoops Provisions of the proposed rule ( (a)) – Applies to all coal haulage equipment and scoops on non-longwall working sections. – Must cause the machine to stop before contacting a miner except for a miner which is in the on-board operator’s compartment.

Proposed Proximity Detection Rule for Shuttle Cars and Scoops Implementation schedule for the new rule: – Phase 1 ( (a)(1)): machines manufactured after the effective date of the rule must meet the rule’s requirements within 8 months of the final rule;

Proposed Proximity Detection Rule for Shuttle Cars and Scoops Implementation schedule for the new rule: – Phase 2 ( (a)(2)): machines manufactured before the effective date of the rule with proximity detection systems must meet the requirements within 8 months of the final rule if the modifications to the existing proximity detection system can be made underground; if not, within 36 months.

Proposed Proximity Detection Rule for Shuttle Cars and Scoops Implementation schedule for the new rule: – Phase 3 ( (a)(3)): machines manufactured before the rule without proximity detection must meet the requirements within 36 months.

Revised Part 100 Civil Penalty Rule On July 31, 2014, MSHA published a proposed rule revising the way in which civil penalties are calculated. The comment period expired in March 2015, and a final rule is anticipated in March 2016.

Revised Part 100 Civil Penalty Rule Expected changes: – Eliminates current 208 point system for a new 100 point system. – Redistributes the relative apportionment of the points to give greater weight to categories not typically in dispute (violation history, etc.)

Revised Part 100 Civil Penalty Rule Expected changes: – Combines the five likelihood categories (no likelihood, unlikely, reasonably likely, highly likely, and occurred) into three (unlikely, reasonably likely, and occurred).

Revised Part 100 Civil Penalty Rule Expected changes: – Combines the four current severity of injury categories (no lost workdays, lost workdays, permanently disabling, and fatal) into three (no lost workdays, lost workdays, and fatal).

Revised Part 100 Civil Penalty Rule Expected changes: – Combines the five current negligence categories (none, low, moderate, high, and reckless disregard) to three (not negligent, negligent, and reckless disregard). – Redefines negligence categories to eliminate use of mitigating factors to reduce negligence level.

Revised Part 100 Civil Penalty Rule Expected changes: – Combines the eleven current number of persons affected category (zero to 10 or more) to two (no persons affected or one or more persons affected).

Revised Part 100 Civil Penalty Rule Expected changes: – Increase of the good faith abatement discount to 20% if the operator does not contest the docket and pays the penalty.

Revised Part 100 Civil Penalty Rule Expected changes: – Increase of the minimum penalties for (d) citations from $2,000 to $3,000. – Increase of the minimum penalties for (d) orders from $4,000 to $6,000.

Questions? Jonathan R. Ellis Steptoe & Johnson PLLC 707 Virginia St. East Charleston, WV (304)