Rock Products

OCT 2014

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ROCK products • OCTOBER 2014 48 LAW T hirty‐seven years and thousands of federal register pages later, MSHA's expectations for compliance of the regulated community remain a source of confusion and con‐ troversy. From the inappropriate incorporation of consen‐ sus standards into MSHA regulations to MSHA's convoluted and ever changing interpretation of its own regulations, the task of determining operating compliance has become in‐ creasingly difficult. No longer can operators attempt to comply with MSHA's regu‐ lations by simply interpreting the standards as written. Nor can operators expect MSHA to apply a consistent, across the board, interpretation to all facilities. In order for operators to predict compliance, they must understand the changing culture within MSHA and look beyond the written standards to anticipate how the agency may apply and enforce the law and regulations. Regulations Government agencies have broad powers to promulgate regu‐ lations, and MHSA is no exception. Section 101 of the Mine Act provides authority to the Secretary of Labor to "develop, prom‐ ulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and pre‐ vention of injuries in coal or other mines." 30 U.S.C. § 811. In drafting these standards, the Secretary is allowed to incor‐ porate industry developed consensus standards by reference and require compliance with those standards. However, the government's power to make rules is not unbounded. It is gov‐ erned by the Administrative Procedures Act (APA) and the Fed‐ eral Register Act of 1935 (FRA). In order for consensus standards – such as the National Electric Code, National Fire Code, and American National Standards In‐ stitute – to be properly incorporated under the APA, a standard must meet specific procedural requirements. One of the cornerstone principles is that parties affected by rules must have notice that the agency intends to promulgate a given rule and must be given a chance to make comments to the agency about those rules before they become final (so called "notice and comment" rulemaking). The incorporated standard must then be published in the Federal Register and MSHA must maintain a copy for public inspection. MSHA has recently attempted to overcome these procedural requirements by including buzzwords in agency regulations. Numerous sections of 30 C.F.R. Part 56 and 57 now include the phrases "substantial construction," "properly installed," or "ap‐ proved design." While several of these phrases are indeed defined by MSHA reg‐ ulations, MSHA inspectors have begun to incorporate addi‐ tional consensus standard requirements for compliance purposes. Instead of simply looking at and applying the lan‐ guage of MSHA standards, inspectors now require operators to comply with the consensus standards even when they are not mentioned in the MSHA regulation. For example, 30 CFR § 57.12002 states that: "Electric equip‐ ment and circuits shall be provided with switches or other con‐ trols. Such switches or controls shall be of approved design and construction and shall be properly installed." The issue is that none of MSHA's own standards define these highlighted phrases. Thus, MSHA inspectors improperly refer to the National Electric Code to ensure that the switches or con‐ trols used are of an "approved design" and "properly installed." Consensus Standards In addition to vague or even meaningless buzzwords, several MSHA standards incorporate consensus standards "as revised or subsequent revisions." On its face, this seems like an eco‐ nomical way to both incorporate what the agency wanted with‐ out having to re‐publish a large amount of information that had already been made available to the public, but also to keep up with any developments in the field without having to constantly revise the regulation. Unfortunately, however, allowing revisions to be automatically Producers Must Look Beyond The Written Standards To Anticipate How MSHA May Apply and Enforce The Law And Regulations. Lost in the Weeds By Ross Watzman Ross W atzman is an associate in the Denver, office of Jackson Lewis P.C., and a member of the firmÕs Workplace Safety and Health Prac- tice Group. He represents clients on a wide range of administrative, regulatory and public policy issues. Leveraging his educational back- ground in biological resource engineering, Watzman advises clients on compliance with health and safety laws and regulations at the federal and state levels, and has experience with administrative appeals, motions practice, complex lit- igation and settlement negotiations.

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