Rock Products

JUL 2013

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all, injuries and the likelihood of injury are much greater in an emergency situation than in normal min‐ ing operations. The court specifically addressed these concerns and said that an inspector could only base an S&S designa‐ tion on the assumption of an emergency for violations of standards that were specifically written for emer‐ gency situations, like lifeline or escapeway standards. The court said, "[E]mergency safety standards are fun‐ damentally different from non‐emergency standards because they are designed to apply meaningfully only in times of emergency." However, the court recognized that its ruling would render many or most citations for emergency standards S&S, but justified this decision by acknowledging that "the stakes are much higher in emergency situations." Notwithstanding the language of the opinion, and given the current enforcement environment, it may well be "reasonably likely" that MSHA will attempt to expand this decision beyond its express limitations. How many of us have had conversations with an in‐ spector where, in defense of an S&S designation, the in‐ spector posited a hypothetical series of events which, had they occurred would render the alleged violation "significant and substantial?" The author has already heard inspectors and the lawyers that represent MSHA use the Commission's un‐ derlying decision to make the argument that, under the new ruling, the agency has to assume that the worst is going to occur. Attorneys Henry Chajet, Mark Savit, Brian Hendrix, Robert Horn and Avi Meyerstein have moved to Jackson Lewis, one of the nation's most prestigious workplace law firms. They have joined forces with Jackson Lewis' 750+ attorneys practicing in 53 locations throughout the United States. Along with the Jackson Lewis team, they will continue to provide aggregate producers with the highest level of service in all workplace safety and health matters, including: ■ Emergency Response/Crisis Management ■ Enforcement Defense ■ Investigations ■ Training and Audits ■ Litigation and Criminal Investigations-Defense ■ Regulatory Counseling ■ Policy/Legislative Advocacy ■ Standard Setting Counsel ■ Expertise in OSHA, MSHA, BATFE, DHS, NIOSH, CSB, NTSB, DOT, FRA, FAA, OPS and Coast Guard matters, as well as representation before state safety and health agencies. Jackson Lewis, www.jacksonlewis.com TRIED, TESTED & BLUE Of course, that's not what the decision says, but, if not read closely, it can be overused to exaggerate the seri‐ ousness of what otherwise would be a "garden variety" non‐S&S citation. No matter whether this decision is restricted to its terms or not, it once again raises the stakes whenever a citation is issued, especially where the citation refers to any rule that might be construed to apply in an emergency. The cautionary tale to be taken away from the deci‐ sion is that, notwithstanding how unlikely it is that an alleged violation might actually result in a serious in‐ jury, we are now confronted with the possibility that MSHA will use that remote chance to increase the gravity of a given citation. Regardless, the one thing that we can be sure of is that it will lead to a "significant and substantial" increase in the number and intensity of penalty disputes. E www.rockproducts.com 2 2-YEAR WARRANTY With over 34 years of manufacturing experience, Luf backs its product with a full two-year warranty. theirs IT TAKES GUTS Our patented idler end cap design ofers the ultimate in sealing protection and can be retroft to any existing frame. ours THE PULLEY ADVANTAGE Manufactured with an industry-leading rim thickness, Luf pulleys are built to meet the demands of the toughest conveyor applications. www.lufndustries.com | tf: 1.888.349.LUFF (5833) CONVEYING PERFORMANCE ROCKproducts • JULY 2013 43

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