Rock Products

JUL 2018

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50 • ROCK products • July 2018 www.rockproducts.com LAW Brian Hendrix, a member of Husch Blackwell's Energy & Natural Resources group, advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He has extensive experience with federal and state agencies and has represented numerous clients in manufacturing, natural resource production and service-related industries. Brian.Hendrix@huschblackwell.com, 202-378-2417. When a Mine Safety and Health Administration (MSHA) inspector arrives at your mine for an inspection, you just hope that the inspector is experienced (and, ideally, not accom- panied by any trainees). You also hope that the inspector's experience isn't limited to coal. Trainees and coal inspectors assigned to inspect metal/nonmetal mines can create all sorts of enforcement issues. That's not always the case, but it happens often enough to produce work for attorneys like me. This isn't a new problem by any stretch, though we have seen more examples of it over the last several years. There are a lot of reasons for this, some of which are systemic or historic. The most obvious reason is that with fewer coal mines to inspect, MSHA's coal inspectors have fewer inspec- tions so MSHA has been assigning them to inspect metal/ nonmetal mines. This is a trend that's likely to continue. David G. Zatezalo The current head of MSHA, David G. Zatezalo, has indicated that the inspectors located closest to a mine should be inspecting that mine. If a coal inspector is closer to a partic- ular metal/nonmetal mine than a metal/nonmetal inspector, the coal inspector should be assigned to inspect the mine. Basically, he's asking: Why should a metal/nonmetal inspec- tor drive three or four hours to inspect a mine when a coal inspector is just 30 minutes away? That's a fair question. One of Zatezalo's goals is to make the agency more effective and efficient, and I'm sure he's evalu- ating this as one way to accomplish that goal. To be sure, it wouldn't really create any problems for coal. However, I am certain that, without an extensive and focused training pro- gram and close supervision, it would create more problems for metal/nonmetal operators and result in a less effective, less efficient use of the agency's resources. Why? First and foremost, the coal world is very different from the metal/nonmetal world. To some of us, that's obvi- ous. Comparing an underground coal mine to a surface stone quarry, an aggregates operation, etc. is comparing apples to oranges. Dogs to Cats. Football to baseball. Take your pick. The hazards, history, mining methods and equipment in coal are largely specific to coal. Sure, there are similarities between coal and other mines, particularly between a coal mine and certain types of nonmetal mines. However, an open pit copper mine in Arizona has very little in common with an underground coal mine in West Virginia. Oranges and apples are both fruits, but only one of them is good for cider. Coal vs. Metal/Nonmetal: Apples v. Oranges? Cats v. Dogs? These Differences Really Matter When It Comes to MSHA Enforcement. By Brian Hendrix In underground coal, you don't work beyond the last row of bolts or artificial support. The roof is often close at hand. You're usually mining with machines, not explosives. Coal miners are certified by the state only after they're trained, tested and have worked in coal for a certain period of time. Examiners – fire-bosses – must be certified by the state. Equipment Most of the equipment is permissible, minimizing potential ignition sources. All work areas must be examined or fire- bossed before work begins in the mine by a certified examiner. Why? An ignition of methane and/or coal dust in one area of the mine may travel to other areas of the mine. A hazard in one area can endanger miners throughout the mine. Of course, MSHA's coal standards and regulations differ from those that apply to metal/nonmetal mines. That is, however, the least of the differences at MSHA between coal and metal/ nonmetal. In coal, inspectors enforce MSHA's regulations and hold operators to MSHA-approved plans. You need a plan for much of what you do in coal, and you need MSHA to approve it. If the district manager doesn't approve your roof control and ventilation plans, you won't be mining. Coal operators must convince MSHA to approve their decisions about roof sup- port, about mining methods, about ventilation, etc. It is hard to understate the impact this has on the mindset of MSHA personnel in coal and on the operators. Coal inspectors inspect surface and underground coal mines and prep plants. By and large, that's it. Metal/nonmetal inspec- tors inspect all of the "other mines," including cement and lime plants, alumina refineries, open pit copper and gold mines, underground narrow-vein gold mines, oil mines, underground salt and trona mines, and underground zinc mines. The differences between these "mines" and a coal mine are

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