Rock Products

NOV 2017

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44 • ROCK products • November 2017 LAW Mark Savit is senior counsel at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He has extensive experience in mining and oil and gas; health, safety and environmental law; industrial disaster response; and regulatory and legislative services. He can be reached at Just when we thought the Workplace Exam rule would go into effect as published, at the 11 th hour, the Mine Safety and Health Administration (MSHA) attempted to make it a bit more palatable with a couple of amendments and another postponement of the effective date. While the proposed amendment addresses some of the issues inherent in the rule, it doesn't come close to resolving the concerns that the industry has been raising since it was pro- posed. Looking at each of MSHA's actions, however, I think you'll agree that its proposal don't come close to addressing the industry's concerns. Effective Date First, MSHA proposed to move the effective date from Oct. 2, 2017, until March 2, 2018 – a period of five months. How MSHA came to this particular time period is a mystery, but it becomes even more puzzling when you read its explanation. Of course, a postponement of the effective date was neces- sary to accommodate the time period necessary for going through the rulemaking process on its proposed amend- ments. But MSHA goes on to explain that the additional time is necessary to "collaborate" with industry and to produce training materials, hold outreach sessions and do compliance assistance inspections. To begin with, it is difficult to understand what "collabora- tion" is going to occur after amendments to the rule have been proposed. The time to collaborate would have been before the proposals were put forward for comment. The comment procedure is hardly collaborative. It consists of a one-sided process, where interested parties submit comments and the agency remains totally silent until the final rulemaking is published. If MSHA had truly wanted to collaborate, it should have done so before the rule, or at least the latest amendment, was proposed. There is more to this issue than simply the opportunity for collaboration. When you deconstruct the timeline of MSHA's proposal, it becomes obvious that March 2, 2018, does not provide enough time to do the sort of outreach, training and compliance assistance that MSHA professes is needed. The comments on the amendments are not due until Nov. 13. Once received, MSHA will have to analyze them, prepare a summary of the comments and draft responses to them, deter- mine whether any additional changes are necessary before submitting them to the Federal Register Office for publication. Déjà Vu All Over Again MSHA's Latest on the Workplace Examination Rule. By Mark Savit Taking into account that there is, at best, sparse activity between Thanksgiving and the new year, it is hard to imag- ine that MSHA will be able to publish a new final rule before mid-January, leaving only about 45 days to distribute training materials, hold outreach sessions and conduct compliance assistance visits in enough time for about 12,000 mines to adjust their practices to MSHA's expectations. It's unrealistic. The comment deadline on the extension of time will have expired before this is published, but we have advised clients to suggest to MSHA that the effective date should be 180 days after publication of the final rule, rather than a fixed date. Substantive Amendments As for the substantive amendments, MSHA proposed only two. First, they proposed that the examination record need not record adverse conditions that were corrected immediately and second, they proposed that the examination could take place "as work begins" as well as before work begins. Taken together, these two amendments are puzzling. MSHA has said that "immediately" means "before workers are exposed to the condition." One struggles to wonder how a condition can be corrected immediately if the examination is conducted concurrently with work beginning. At the very least, MSHA will have to clarify these two apparently competing, if not conflict- ing, directions. Each of them should be examined separately. First, the issue of "immediate correction" raises a number of issues that are left over from the initial proposal. MSHA does not define "correction" in any of its material to date. This is actually more than a semantic question. The best example I can think of is loose ground on a highwall. In the normal course of events, the decision is often to berm off the area, keep everyone out of the zone of potential failure and operate normally until the "condition" itself can be "corrected."

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