OF SAFETY ENGINEERS
1800 East Oakton Street
January 13, 2003
Mr. Marvin Nichols
RE: MSHA Proposed Rule on Emergency Evacuations, Emergency
Preliminary Regulatory Economic Analysis
A review of MSHA's "Preliminary Regulatory Economic Analysis" suggests that the agency has seriously undervalued the benefits associated with implementation of the ETS. In its analysis of the benefits of the proposed rule, MSHA states, "(T)his emergency temporary standard could prevent 11 miners' lives from being lost every ten years, or an average benefit of the emergency temporary standard of 1.1 miners' lives saved every year"(1). MSHA makes this determination based on its evaluation of its coal accident investigation database and the absence of any other fatalities during the past ten years, except for those cases referenced (i.e., "Jim Walter No. 5 Mine accident" and "Willow Creek Mine").
1. Preliminary Regulatory Economic Analysis and Preliminary Regulatory Flexibility Analysis, pg. 10.
The benefit of adopting this standard is narrowed down to 1.1 lives per year, however; MSHA's discussion fails to address coal mine accidents that were "near misses" and that might otherwise have resulted in coal mine fatalities. Outreach to the mining community - which may have solid data concerning such "near misses" and associated root causes analyses - could be extremely beneficial in justifying the expenditures incurred to implement the ETS. Furthermore, MSHA has omitted any mention of serious injuries and/or illnesses experienced by coal mine workers as a result of mining accidents, which might otherwise have been of a lower severity had the requirements of the ETS been in place.
In the case of "near misses," ASSE notes that cost savings in terms of "cost avoidance" is a significant factor that offsets the costs associated with implementation of the requirements of the ETS. In addition, the actual costs associated with serious injuries and illnesses experienced by coal mine workers due to mine emergencies would also offset additional costs arising from implementation of the ETS. The net result of MSHA's failure to address these actual and potential cost savings weakens the perception of a need for such an ETS. If anything, the stated number of fatalities avoided through implementation of the ETS (1.1 per year) lessens the significance of the standard given there were 37,182 coal miners employed in 2000 and coal fatalities in 2002 were the lowest in the history of the mining industry.
Finally, ASSE believes that accounting for the costs associated with "false evacuations" and the costs associated with the training covered under "Mine Emergency Evacuation and Firefighting" (§ 75.1502) is duplicative when considering the proposition that any "false evacuations" should be a reasonable substitute for the evacuation drills covered under § 75.1502(c). When "false evacuations" are counted as evacuation drills, miners are responding to perceived mine emergencies rather than planned drills, and as a result, mine emergency evacuation plans, training and equipment are tested under "real life" conditions. As such, mine owner and miners will be better trained in anticipation of responding to true mine emergencies while at the same time conserving valuable financial and labor resources. See further discussion of this issue as it relates to § 75.1502(c).
Emergency Evacuations: §75.1501
The "Responsible Person Requirement" appears analogous to the "Site Incident Commander" requirement under OSHA's Hazardous Waste and Emergency Response standard, codified at 29 CFR § 1910.120. In this regard, OSHA has adopted the "incident command" system that is almost universally employed by emergency responders in the United States. By contrast, MSHA's "Responsible Person" requirement places the burden on a single, well-identified and trained individual without specifying the individual's duties and responsibilities while leading the emergency evacuation and response efforts during an emergency at a coal mine. ASSE believes that it is critical that the "Responsible Person's" duties and responsibilities be well defined in order to make the designee more effective during an actual emergency and to reduce the potential for human error. In this regard, ASSE recommends that MSHA make this requirement more prescriptive [as it has done under § 75.1502(a)], consistent with the incident command structure identified in 29 CFR § 1920.120, by addressing the following minimum elements:
Mine Emergency Evacuation and
§75.1502(a) Requirement for Evacuation Training
This subsection on evacuation training does not address training on the use of personal protective equipment such as "escape only" respirators.
§75.1502(c) - Requirements for
First, ASSE states that "false emergencies" involving activation of a mine's Emergency Evacuation Plan should be counted as a mine emergency evacuation drill for the purpose of this subsection for the reasons discussed above. In such cases, the requirement that drills be conducted "at intervals of not more than 90 days" may pose professional, regulatory, and logistical dilemma for safety professionals assigned to carry out the rule. As a result, ASSE proposes that this requirement be changed to allow for this contingency and be included as an exception. ASSE proposes the following language for this requirement:
Secondly, ASSE strongly believes that, in addition to
the "evacuation drill" documentation requirements set forth
under this sub-section, it is extremely beneficial to mine owners and
miners to document the overall mine's performance (i.e. responsible person,
foremen, lead persons, safety and health professional, emergency responders,
etc.) during the course of the drill in order to identify the mine's emergency
evacuation plan's strengths and weaknesses and critique the performance
of the key personnel identified in the plan.
Encouraging Training Standard
Finally, the ultimate success of a final rule will depend greatly on the effectiveness of training. To help encourage effective training, ASSE urges that MSHA reference in the final rule the American National Standards Institute Z490.1 Standard entitled "Criteria for Accepted Practices in Safety, Health, and Environmental Training," for which ASSE is the Secretariat. Approved in July 2001, the Z490.1 Standard sets accepted practices for safety, health and environmental training to help employers and consumers select quality safety and health training materials, instructors and other program components. Z490.1 is also used to audit, monitor, evaluate and analyze the programs of training providers as well as the employee training activities of corporations and government entities seeking third-party review.
Federal agencies were encouraged to utilize consensus standards by both Congress in Public Law 104-113, "The National Technology Transfer and Advancement Act of 1995," and the Office of Management and Budget in its Circular A-119, "Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities." MSHA has already commented favorably on the Z490.1 Standard in its Hazard Communication Final Rule (67 Fed. Reg. 42324; June 21, 2002). Reference to the standard here would help MSHA achieve its goal of improved safety for mine workers.
ASSE appreciates the chance to provide input on this critical rulemaking issue and welcomes the opportunity to provide additional assistance to MSHA in developing standards dealing with workplace safety, health and security. Please let us know if we can provide more information to support the recommendations set forth above.
Mark D. Hansen, PE, CSP
to go back to the ASSE Federal Statements and Testimony page.