Rock Products

MAY 2018

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Page 62 of 75 ROCK products • May 2018 • 61 LAW Brian Hendrix, a member of Husch Blackwell's Energy & Natural Resources group, advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforce- ment defense and regulatory compliance counseling. He has extensive experience with federal and state agencies and has rep- resented numerous clients in manufacturing, natural resource production and service-related industries. Brian.Hendrix@, 202-378-2417. On April 9, the Mine Safety and Health Administration (MSHA) finalized its Examinations of Working Places in Metal and Non - metal Mines Rule (WPE Rule). For those who are keeping score, this is the second "final" version of the rule. MSHA rushed the first "final" version through the rulemaking process and pub- lished it on Jan. 23, 2017, just a few days after the inauguration. Stakeholders rightly criticized the rule, and several challenged the it in court. MSHA delayed its implementation at least three times and proposed a few changes to it back in September. Among concerns raised by stakeholders were safety (divert- ing safety resources to record-keeping duties), feasibility (ability to examine vast mines at the beginning of each shift), compliance (uncertainty about when an exam was timely, when notification was required, etc.), and cost (MSHA admit- ted that it was "unable to quantify the benefits" of the rule). Midnight rulemaking is a bipartisan tradition, but MSHA published this rule after the clock struck 12:00. MSHA didn't ignore the new administration's Executive Order expressly barring the publication of midnight rules after Jan. 20, 2017, but it certainly didn't respect it. To MSHA, the president's Executive Order was taken as more of a recommendation. MSHA has cast aside stakeholders' concerns and finalized the rule. It will be effective June 2. Here are the main provisions: •  Timing of Examinations: Examinations must be conducted at the beginning of the shift or "as miners begin work." •  Notification of miners. Operators must "promptly notify miners" in "affected areas" of adverse conditions that are not "promptly" corrected. "[I]n most cases, verbal notification or descriptive signage would be needed to ensure that all affected miners received actual notification of any adverse condition." • Examinations recorded before shift ends. Examinations must be recorded or documented before the end of the shift. •  Detailed records of conditions. Examination records must be detailed and include – for any adverse conditions that are not promptly corrected – descriptions of the conditions and be supplemented to state when corrective action was taken. •  Record production and retention. Examination records must be made available not only to MSHA upon request, but also to miners, and kept for one year. The most notable difference between the first final rule and the latest final rule is that the latter requires examinations to occur "at least once each shift before work begins or as miners begin Improving Safety Through Paperwork: MSHA's Workplace Examination Rule MSHA Is Happy To Saddle The Industry With $276 Million In Additional Costs Over The Next Decade Or So For A Rule That May Not Be Beneficial. By Brian Hendrix work in that place." This makes very little sense to me. Isn't a miner working when he performs a workplace examination? If that's not work, then a MSHA inspector performing a regular inspection isn't working. So, I'd say the vast majority of MSHA inspectors and their union will agree that examining a work- place for hazardous conditions qualifies as work. Second, hazardous conditions aren't normally self-correcting. Correcting a hazardous condition is work. A miner must cor- rect or address the condition. It's usually the case that miners must take some action in the affected area to correct or oth- erwise address a hazardous condition after it is identified. That action is properly considered "work," and it is usually performed by miners in an "affected area." Miners who inspect after a shot and then scale down the loose material they find or install support are working. If the mining cycle is drill, load, shoot, inspect/take down/support, muck and repeat, doesn't the inspect/take down/support part of that cycle count as work? Shoveling material off a catwalk along a beltway is housekeeping – it addresses a potentially hazardous condition and it is work. If it takes a miner half a shift to shovel the catwalk and others miners don't travel through or work in that area until it is clean, was the condition corrected before work began? To be fair, MSHA has assured stakeholders that it will answer these and a host of other questions during several public meet- ings between now and June 2. We'll see, but I am skeptical. If MSHA has all the answers, why wouldn't it publish those answers in the final rule? Is It In Writing? In truth, MSHA's WPE Rule has very little to do with safety or health. Rather, its purpose is to teach miners and the mining

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