Rock Products

NOV 2017

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Page 46 of 59 ROCK products • November 2017 • 45 LAW In many cases, the "condition" is not "corrected" at all, but rather, simply left in the bermed off area until the next shot is taken. The same is true for a number of other types of con- ditions that can simply be isolated from exposure to miners until the source of the problem is addressed. Immediate Correction MSHA uses the example of moving a hose out of a walkway. While that is a great example of immediate correction, it oversimplifies, and, in doing so, obscures the problem. MSHA will have to address this issue in much more detail in order for this proposed amendment to be meaningful. Unless and until this issue is addressed, the amendment runs the risk of simply increasing enforcement exposure rather than easing the recordkeeping burden, as MSHA intended. Allowing the examination to take place as work begins is another well-intentioned amendment which, without clar- ification, can become just another problem for the unwary operator. The issue is this: Despite MSHA's insistence that they are not trying to curtail the number of people doing workplace exams or create disincentives for multiple exam- inations, they have done just that. What is more, the language in the preamble to both the final rule and the new amendments, is cast in such a way that one can't help but conclude that MSHA envisions a single "examiner" responsible for carrying out the regulatory requirements. Obviously, having multiple examiners would require creation of multiple records, all of which would 1) have to be totally consistent and 2) would be subject to all of the recordkeeping requirements. For that reason, the single examiner would have to complete the examination of all of the work area before any miner is exposed to any adverse condition that "may" affect them. In other words, it is easy to envision enforcement issues arising from the timing of the exam if it is conducted as work begins, rather than before it starts. To wrap up, MSHA said its amendments addressed on some of industry's concerns. One has to wonder whether MSHA meant to imply that it would address other concerns that had been raised or that it knew that it had not addressed every concern, but did not intend to address them before the rule is finalized. There is still an opportunity for the collaboration MSHA pro- fesses to favor, but in order to take advantage of it, MSHA would either have to withdraw the rule and begin a col- laborative process to formulate a new one, or suspend the rulemaking process in order to allow for dialogue and create a real opportunity to come up with a rule that addresses the obvious problems with the existing rule without creating a morass of compliance issues that will inevitably overwhelm any real safety benefit in a storm of litigation. Don't Miss These Premier Events: Astronaut Mullan's Talk on Safety Emerging Professionals Social at the Alamo New Grand Finale Gala International Society of Explosives Engineers ISEE Conference 2018 Grand Hyatt San Antonio Learn. Connect. Exchange. Leading the explosives industry in education, training and networking Riverwalk San Antonio, Texas

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