Publications

"MSHA'S New Standards for Occupational Noise Exposure of Miners,"

2000

Author: Edward M. Green.

As Assistant Secretary of Labor for Mine Safety and Health, J. Davitt McAteer, nears the end of his long tenure at the helm of MSHA, the agency's new standards for occupational noise exposure of miners (30 C.F.R. Part 62) must be considered an important aspect of his legacy. These new standards were published in the Federal Register of September 13, 1999 and are effective on September 13, 2000. The new regulations are a "one-size-fits-all" set of standards, covering all mines uniformly, both surface and underground as well as coal and metal/non-metal.

MSHA has consistently said that the new requirements of Part 62 are not much different from current MSHA and OSHA occupational noise exposure requirements. The fact of the matter, however, is that not only are they very different, but they are also quite complex in their level of detailed mandatory requirements. Furthermore, MSHA's intensive inspector presence is likely to result in heightened enforcement of the new standards. In this regard, recent experience with implementation of other new standards shows that MSHA's intensive inspector presence will result in interpretations in the field that are confusing, incorrect, and inconsistent. Consequently, operators can expect a lengthy "shakedown" period until the new standards are well understood by both the regulators as well as the regulated community.

Read MSHA's Fine Print

The new Part 62 requirements are classic proof that "the devil is in the details." New Part 62 contains 15 separate sections and, while the new standards take up only 5 pages of the Federal Register, every word has significance, meaning, and nuance for compliance purposes. Indeed, it is the preamble (the "official" explanation of the new standards) which is essential to a real understanding of the new requirements - and that preamble consists of 80-plus pages of 3-columned Federal Register fine print.

The new standards include requirements for assessment of the noise exposure of each miner, mandatory exposure levels, and detailed provisions for establishment and implementation of hearing conservation programs, including the provision of hearing protectors, audiometric testing, training, and recordkeeping. It is important to remember that each and every provision of new Part 62 is a "mandatory health standard" subject to the full range of enforcement sanctions established under the Federal Mine Safety and Health Act of 1977.

While this article will briefly touch upon some of the more troublesome aspects of the new standards, we have prepared a detailed analysis of the new rules along with compliance guidelines designed to help operators navigate the maze of the extraordinarily complicated requirements of these new standards. This analysis and guidance is available for a modest fee. Please call should you be interested in it.

Assessment of Miners' Noise Exposure

One of the key provisions of the new standards is § 62.110(a), which requires each mine operator to "establish a system of monitoring that evaluates each miner's noise exposure sufficiently to determine continuing compliance with this part" (emphasis added). This provision is especially important because a compliant system of monitoring is one of the fundamental requirements of the hearing conservation program mandated in new § 62.150. As you can see, however, the provision is remarkably broad (i.e., "each miner's noise exposure") and vague (i.e., "sufficient"). Therefore, it is entirely possible that new § 62.110(a) could become a "catchall" for citations. The phrase "continuing compliance" is particularly troublesome because is applies to all the provisions of the new Part 62.

Very importantly, the new standards allow no compliance credit for the use of hearing protectors. Thus, for example, § 62.110(b) states: "A miner's noise dose determination must . . . [be] made without adjustment for the use of any hearing protector." Current MSHA requirements, as well as the OSHA noise standard, allow the use of hearing protectors to achieve compliance with mandated exposure levels. MSHA, however, has now specifically rejected this approach. Adoption of this requirement poses a real problem for operators' efforts to comply with the mandatory exposure levels set forth in §§ 62.120, 62.130, and 62.140. MSHA's rejection of the use of hearing protectors to achieve compliance with those exposure levels is especially ironic because the provision and use of hearing protectors are fundamental requirements of the hearing conservation program mandated by the new standards. See §§ 62.150 and 62.160.

The noise exposure assessment provisions of § 62.110 also require that operators must

provide affected miners and their representatives with an opportunity to observe [required] noise exposure monitoring . . . and must give prior notice of the date and time of intended exposure monitoring to affected miners and their representatives.

This requirement poses great potential for compliance problems and labor/management discord. In this regard, for example, the preamble specifically states:

The final rule does not limit the number of miners, their representatives, or time spent observing monitoring. Therefore, under the final rule miners have the option of observing monitoring for the full shift, part of the shift, or not at all.

As for exposure levels, § 62.120 provides: "If during any work shift a miner's noise exposure equals or exceeds the action level [a time-weighted average over 8 hours (TWA8) of 85 dBA] the operator must enroll the miner in a hearing conservation program." There is no action level provision in the current MSHA standards, and while this provision conforms to its OSHA counterpart, hearing protectors are not allowed to achieve compliance.

The permissible exposure level itself remains the same as the current MSHA standards -- i.e., a TWA8 of 90 dBA. However, how the 90 dBA exposure level will be enforced and how an exceedance must be abated is dramatically different from current MSHA requirements. Thus, § 62.130(a) provides that an

operator must assure that no miner is exposed during any work shift to noise that exceeds the permissible exposure level. If, during any work shift a miner's noise exposure exceeds the permissible exposure level, the mine operator must use all feasible engineering and administrative controls to reduce . . . exposure to the permissible exposure level and enroll the miner in a hearing conservation program [emphasis added].

Then, according to § 62.130(b), if exposure continues to exceed the permissible exposure level "despite the use of all engineering and administrative controls, the mine operator must continue to use the engineering and administrative controls to reduce . . . exposure to as low a level as is feasible" (emphasis added).

Feasibility or Highest Degree of Protection?

The question of "feasibility" will certainly be a subject of dispute during implementation of the new standards. Generally, however, it is important to keep in mind that by law feasibility is a secondary factor in setting standards dealing with exposure of miners to "harmful physical agents" such as noise. The primary factor under § 106(a)(6)(A) of the Mine Act is to achieve the highest degree of health and safety protection for the miner. In that regard, although MSHA has decided to apply a rule of "feasibility" in connection with the permissible exposure level of 90 dBA, with regard to grandfathering of the equipment currently in use, the preamble states:

Protection of the miners from the harmful effects of noise must be the first consideration. The final rule does not take effect until 12 months after the date of publication, which provides all mine operators with adequate time to retire older, noisy equipment. After the final rule takes effect [on September 13, 2000] no exceptions will be allowed for equipment that may be nearing the end of its useful life.

As for what constitutes "feasibility," both the preamble and a recently issued agency program policy letter state that MSHA will consider three factors in determining which specific engineering and administrative controls are feasible at a particular mine. According to MSHA's Program Policy Letter ("PPL"), these factors are:

(a) the nature and extent of the overexposure;

(b) the demonstrated effectiveness of available technology; and

(c) whether the committed resources are wholly out of proportion to the expected results.

The PPL also explains how MSHA will apply these three criteria. Thus, for example, the PPL says that, in evaluating the nature and extent of the overexposure, MHSA will consider the source(s) of noise, and the level (dose) and duration of exposure. The explanations, however, raise as many questions as they answer. Importantly, the new PPL also discusses a procedure that MSHA will utilize when an inspector finds that a miner's noise exposure exceeds the permissible exposure level despite the operator's use of all feasible engineering and administrative controls. This procedure is called MSHA's "P" Code Enforcement Policy. In such instances (and it is likely that there will be many) no citation will be issued as long as the operator is in compliance with the hearing conservation program requirements of § 62.150 and the provisions of § 62.160 which require the use of hearing protectors for miners whose exposure to noise exceeds the permissible exposure level.

As for the use of hearing protectors themselves, while compliance credit for their use will not be allowed to achieve the permissible exposure level, in many instances the operator will be required to ensure that affected miners wear the devices. Since affected miners are not personally obligated by Part 62 to wear hearing protectors, under the absolute liability precepts of the Mine Act it is the operator who will be sanctioned if miners choose not to wear the devices.

This brief focus on MSHA's new noise standards, will, we hope, provide readers with a flavor of the complexities and pitfalls of the new requirements. Our analysis shows that each and every section of the new standards is replete with "gotchas." When all is said and done, of course, MSHA does have some enforcement discretion in how it will implement the new standards. Senior agency officials have been saying consistently, since the new rules were published, that they are not much different from the current requirements. If this means that the new standards will be enforced like those in effect before September 13, however, that soothing message is nothing more than a siren song. Listen to it at your peril.

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Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922
Email: egreen@crowell.com