Rock Products

APR 2017

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54 • ROCK products • April 2017 www.rockproducts.com LAW CST Storage | 903 E 104th Street | Suite 900 | Kansas City | MO 64131 | +1-913-621-3700 FLAT-PANEL JACK-BUILT STORAGE SOLUTION FULL LINE PRODUCT PORTFOLIO TO OFFER THE RIGHT SOLUTION, EVERY TIME CST is the only tank manufacturer in the world that provides a flat-panel jack-built tank, a chime panel scaffold built tank and factory welded tank designs, all capable of safely and economically being installed on every diverse site imaginable. World-Class Coatings with OptiBond TM Coating Process 124+ Years of Experience EMR Rate of .68 350,000 Installations in over 125 Countries W O R L D R E C O G N I Z E D L E A D E R I N D R Y B U L K S T O R A G E TECTANK FP TECTANK CP WELDED Optimized Design – Reduced Hardware Required/Reduced Penetration Points Industry Leading Gasket – Leak Proof Design Heavy Duty Jacking System – Proof Load Tested and PE Stamped Preconfigured Models Available – Lead Time Within 10 Weeks of Order CST OptiBond™ Proprietary Coating – Ensures Best Quality Available Faster Construction Time – 20% Faster Than Chime, 30% Faster Than Welded ª more than "because we say so" will require work, work that MSHA hasn't done. Near as I can tell, MSHA didn't plan to do that work. Prior to the election, I think MSHA confidently assumed that "because we say so" would be enough. MSHA may believe that "because I say so," coupled with a citation to NIOSH's research in coal, would still be enough to justify a 1,000 ft. rule for metal/non-metal mines. How- ever, NIOSH stated that "the underlying differences between mining sectors are significant and practices in one sector cannot be generalized to the other." MSHA also knows that other countries have researched the issue. For example, 1,000 ft. is not the rule in Australia, and MSHA is well aware of the Australian research and guidance on refuge chambers in metal/non-metal mines. So, MSHA doesn't have any real empirical support for a 1,000 ft. rule, and it hasn't bothered to address or consider the host of significant (and very obvious) concerns about the feasibility of compliance with such a rule. Those are a couple of the major substantive problems with the rule, but MSHA also has a significant procedural problem. As I mentioned earlier, a senior MSHA official said that the agency intended to adopt the 1,000 ft. rule by way of a Program Policy Letter, not by notice and comment rulemak- ing. He explained that MSHA did not want to promulgate the 1,000 ft. rule via the rulemaking process because rulemaking takes too much time. While I applaud his candor, MSHA lacks the authority to adopt a new rule like this one on the indus- try by fiat. When it believes a new rule is in order, the law requires MSHA to engage in notice and comment rulemak- ing. "It's too hard" or "it takes too long" isn't an excuse for ignoring the law. The new administration has yet to appoint a new Assis- tant Secretary for MSHA, but the senior MSHA official I mentioned earlier did state that the Program Policy Letter is on hold until the Trump administration has a chance to review it. Additionally, several industry associations and mine operators have asked MSHA to at least meet with all the stakeholders before the agency takes any further action. At this point, I think it is safe to assume that MSHA won't be releasing a Program Policy Letter imposing the 1,000 ft. rule in the near future. Nevertheless, I do expect MSHA to pursue changes to the emergency escapeway and related rules, to focus enforcement on those rules, and to use its approval authority for escape and evacuation plans to impose new requirements on operators.

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