Rock Products

OCT 2014

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www.rockproducts.com ROCK products • OCTOBER 2014 49 incorporated into the rule whenever they might be published causes two separate problems. First, since the revisions are not, themselves, rules, the revised material would not be published in either the Federal Register or in the next edition of the C.F.R. and thus, there would be no way to show that everyone had an equal opportunity to review them. Second, and perhaps more important, the revisions might have significant changes in them which would take effect automat‐ ically, without an opportunity for notice and comment. Thus, operators must not only comply with consensus standards, but also remain vigilant in their awareness of new requirements. Finally, MSHA's changing interpretation and inconsistent in‐ terpretation of its own regulations has easily become one of the main sources of confusion for operators. For example, on June 21, 2012, MSHA issued an enforcement policy letter clar‐ ifying the agency's position regarding its fall protection stan‐ dard in surface and underground metal and non‐metal mines (P12‐IV‐01). According to the letter, MSHA will consider com‐ pliance with OSHA's fall protection standard at 29 CFR 1926.501(b)(1), to "in many cases" satisfy MSHA's standards at 30 CFR §§ 56/57.15005. MSHA's standard requires safety belts and lines to be used "where there is a danger of falling." OSHA's standard requires that "each employee on a walking/working surface . . . with an unprotected side or edge which is 6 ft. (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems." The troubling aspect of this policy letter is in MSHA's use of the language "in many cases," which leaves the agency free to ac‐ cept or not accept compliance with the OSHA standard on a case‐by‐case basis and, in turn, leaves employers with little cer‐ tainty regarding their options for compliance when potential fall heights are at 6 ft. and below. Be Mindful Now, more than ever, must operators be mindful that the re‐ quirements for governmental compliance are ever‐growing and expanding. Most importantly, they are being expanded in many cases without regard for the requirement that they must be made available for notice and comment before changes can be made. For that reason, operators really must question any citation in‐ volving an unwritten or automatically changing reference to an outside standard. The failure to do so may result in the unwar‐ ranted imposition of countless additional and potentially changeable requirements. E

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