Rock Products

NOV 2012

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Regulatory Compliance And The Quest For Consistency By Peter Gould Consistency and Clarity are Vital to Both Industry and the Agencies Charged with Regulating Industry. Consistency in the application and en- forcement of standards remains a key concern to the industry, and we are improving consistency. – Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health, Cincinnati, (July 16, 2012). Consistency and clarity are vital to both industry and the agencies charged with regulating industry. Confusion and in‐ consistency regarding compliance in the marketplace and by agencies result in unpredictable and wasted enforce‐ ment efforts that siphon precious re‐ sources away from programs –both private and public – aimed at improv‐ ing worker safety. Consistency is mani‐ fold; we seek consistency within the industry, and the agency [here, the Federal Mine Safety and Health Admin‐ istration (MSHA)] but also across agen‐ cies, even those that exist within the same Cabinet Department. For exam‐ ple, the two workplace safety and health agencies within the U.S. Department of Labor, the Occupational Safety and Health Administration (OSHA) and MSHA have virtually identi‐ cal Congressional Mandates. In OSHA's case it is "to assure so far as possible every working man and woman in the Nation safe and healthful working con‐ ditions and to preserve our human re‐ sources . . ." MSHA is likewise charged with protecting "the health and safety of its most precious resource – the miner." While similar types of work and condi‐ tions frequently exist on both OSHA and MSHA sites, too often the two agencies approach a single problem in signifi‐ cantly different ways. For example, OSHA and MSHA have very different hearing conservation programs, despite the fact that noise is noise, regardless of 34 ROCKproducts • NOVEMBER 2012 whether the noise is found at a mine site or a construction site. Fall Protection Another example is fall protection. The Metal/Nonmetal standards for both un‐ derground and surface mines found at 30 C.F.R. §§ 56/57.15005 state, in part: "Safety belts and lines shall be worn when persons work where there is a danger of falling . . ." A similar standard is found in 30 C.F.R. § 77.1710(g) per‐ taining to surface coal mines and sur‐ face work areas of underground coal mines. That standard also states, "Safety belts and lines shall be worn where there is danger of falling . . ." Cu‐ riously, no analogous standard appears to exist in Part 75 for underground coal mines beyond the simple safeguard guidance that miners "should wear safety belts while doing work in or over shafts." The analogous OSHA standard for the construction industry found at 29 C.F.R. §1926.501(b)(1), states that "Each employee on a walking/working surface (horizontal and vertical sur‐ face) 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 ar‐ rest systems." After years of inconsistent, arbitrary and often highly subjective enforce‐ ment of the MSHA standards, MSHA Metal/Nonmetal published Program Policy Letter No. P12‐IV‐01, entitled "Safety Belts and Lines (30 C.F.R. §§ 56/57.15005)" June 21, 2012. The PPL's purposed was to "clarify compli‐ ance required under 30 C.F.R. §§ 56/57.15005 to enhance consistency and protection of miners." Gould is an associate with Patton Boggs LLP. He can be reached at 303-894-6176 or at The PPL, which ironically was directed only at non‐coal operations despite the existence of the same standard in Part 77, but not Part 75, states that "In many cases, compliance with OSHA's fall pro‐ tection standard will satisfy the require‐ ments of MSHA's 30 C.F.R. §§ 56/57.15005 standard. MSHA will eval‐ uate all work area hazards to ensure ap‐ propriate fall protection provisions are in place to protect miners from fall haz‐ ards." MSHA's Program Policy Manual offers little guidance to operators or in‐ spectors: "Paragraph (g) of this Section requires that safety belts and lines shall be worn at all times by all miners work‐ ing in positions where there is a danger of falling, except where safety belts and lines may present a greater hazard or are impractical. "In those cases, the standard requires that alternative precautions be taken to provide the miners with an equal or greater degree of protection. Substantial scaffolding with adequate guardrails or safety nets are acceptable alternatives. The objective of this policy is to insure that miners working where there is a danger of falling are always protected."

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