ATF Variances Required for Type 1 Explosives Magazines in Underground Mines.
By Brian Hendrix
Almost two decades ago, Congress passed the Safe Explosives Act to address explosives safety and security following 9/11. The new law and the regulations promulgated in its wake applied broadly, to everyone who acquires or uses explosives.
The mining industry uses about 90% of all the explosives consumed in the United States, so the new law and the regulatory changes meant that the mining industry would be spending more time with the good people at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). As an attorney who advises mine operators on all sorts of different regulatory matters, I knew that I’d become well versed on all these new explosives laws and regulations.
ATF’s regulations weren’t specifically written for mining, and ATF personnel are not usually drawn from the mining industry. That easily could have created a lot of conflict and confusion. Thankfully, that’s not what happened, at least not in my experience.
The ATF worked with the mining industry to educate operators about the new laws and regulations, to provide guidance and answer questions. It worked to educate its people about mining. Having assisted a host of different mine operators with all sorts of different issues that cropped up during that time and since, I’ve been pleasantly surprised to see the ATF and the mining industry largely working together as partners in public safety. I have every reason to believe that will continue.
Old and New
However, that does not mean that old and new issues alike won’t continue to crop up. For example, ATF has recently informed several different mine operators that their underground explosives storage magazines do not comply with ATF’s standard for Type 1 Storage Magazines (27 C.F.R. § 555.207).
The magazines at these mines are located underground, comply with MSHA’s standards and have not changed in many years. ATF has, on many prior occasions, confirmed that these magazines complied with ATF’s standards. And, ATF has not made any changes to the explosives storage regulations or published any new guidance on those regulations.
However, ATF’s regulations generally require Type 1 magazines to be “a permanent structure: a building, an igloo or ‘Army-type structure,’ a tunnel, or a dugout. It is to be bullet-resistant, fire-resistant, weather-resistant, theft-resistant, and ventilated.” The regulations then describe what ATF considers to be “bullet-resistant,” “fire resistant,” etc. Although the magazines at these mines are bullet-resistant, fire-resistant, weather-resistant, theft-resistant and well-ventilated, they do not fit the descriptions of those terms in ATF’s regulations.
More specifically, ATF’s regulations that magazines be “constructed of reinforced concrete, masonry, metal or a combination of these materials.” The magazines at these mines are 1,000 to 2,000 ft. underground and consist of rooms comprised of solid rock, i.e. the magazines’ roofs, floors and walls are comprised entirely of solid rock, not concrete, masonry or metal. The ore bodies at these mines are not combustible. Without any doubt, the construction of these magazines is bullet, fire and weather resistant.
Here’s another example: ATF’s regulations also require the doors to a Type 1 magazine be secured by two locks. The magazines at most mines are secured by one lock. However, access to the underground areas of these mines is closely monitored and restricted.
ATF was particularly concerned about powder rigs are parked in or near the magazines when not in use. Of course, this equipment is parked more than 50 ft. from other classes of explosives, and it is specifically designed and are used solely for the conveyance of ANFO. This is a standard practice in the industry, and it complies with MSHA’s standards.
ATF has raised this storage issue operators during the license renewal process, and it has instructed them to request or apply for a variance from the regulation. In response, they did exactly as ATF instructed and have since submitted variance requests. I don’t doubt that ATF will grant the variances. That’s not the problem. The problem is that the variances aren’t necessary or proper.
First, ATF has previously agreed on a case-by-case basis that the means of storage described above is, as ATF put it, “substantially equivalent to the prescribed regulations.” To take one example, referring to a magazine in an underground mine just like the ones described above, ATF explained to the mine operator back in 2007 that:
[b]ecause your explosives are stored . . . underground, you meet any bullet resistance standard. Bullet resistant standards are in place to ensure that hunters in the area may not accidentally detonate explosive materials. Additionally, in today’s environment, bullet resistant standards provide protection from someone above ground, attempting to cause an intentional detonation. Therefore, we must conclude that the storage of explosives . . . underground is adequately protected from penetration of a bullet fired above ground.
That was as sensible and true in 2007 as it is today.
Second, if a variance is necessary for the magazines at these mines, then a variance would be necessary for most of the magazines at underground metal or non-metal mines in the United States. Thankfully, that’s not what we’re seeing. ATF has raised this storage issue with all of the underground mine operators in a particular region. ATF personnel in that region acknowledged that their interpretation is new and differs from other regions. However, what that means is that ATF’s interpretation of these standards differs from region to region. Obviously, ATF’s standards should not differ from one area of the country to the next.
As I said above, ATF and the mine industry have a good track record of working through issues like these, and I’m hopeful that ATF will address and settle this storage issue and a handful of other new issues that have cropped up over the last year or so.
Stopping the Spread of COVID-19
With COVID-19 still hanging around, Husch Blackwell’s Avi Meyerstein said businesses should assess the specific risks for each site, job and worker: combine what the Centers for Disease Control (CDC) tell us about the virus with what you know about your work site and each job and person there. If the disease enters, how will it spread there? Who is at risk of workplace exposure? Who has regular personal contact with others at work (working side-by-side, within 6 ft.)? Who travels? Who interfaces with visitors that travel, such as equipment representatives, customers, or corporate management? Who shares tools or touches common surfaces? Who is part of a vulnerable, high-risk population defined by the CDC? Consider creating low-, medium-, and high-risk job categories to define and address hazards.
He also offered advice on identifying general measures to prevent the spread of disease at work:
- First, keep illness away from your workforce by educating employees about the virus, symptoms of illness, and how to maintain strong immune systems (through rest, hydration, good nutrition, and exercise). Instruct employees to monitor themselves, report illness, and stay home from work if sick (until they are symptom-free for 24 hours). This is easier said than done. People understandably are reluctant to miss work. Make sure your leave policies and health insurance are designed to encourage and reward the right behaviors.
- Second, limit the possible spread by educating, training, and frequently reminding everyone about good hygiene. Wash hands frequently and thoroughly. Don’t shake hands. Avoid direct personal contact, especially with those who are sick. Maintain personal space of at least 6 ft. Cough into elbows. Don’t touch the eyes, face, or nose. Use and discard tissues. Create and implement a plan for regularly sanitizing high-touch surfaces, which can include inside equipment cabs, on office desks (telephone receivers and computer keyboards), equipment control panels, and even shared handheld radios.
- Third, establish site-wide administrative changes to reduce exposures. Cancel unnecessary travel and visitors. Support tele-commuting for back-end staff where possible. Hold meetings by phone or video calls (even if you’re all at the same site). Re-stock and distribute sanitary supplies, such as tissues and disinfecting wipes. Increase housekeeping to collect trash and sanitize surfaces (and don’t forget PPE for those who clean).
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected].