Rock Products

MAY 2018

Rock Products is the aggregates industry's leading source for market analysis and technology solutions, delivering critical content focusing on aggregates-processing equipment; operational efficiencies; management best practices; comprehensive market

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62 • ROCK products • May 2018 LAW DECADES OF EXPERIENCE & CUSTOMER SERVICE For 60 years BTI has worked with mining & aggregate companies to power productivity and break into profitability. Whether you're above ground or underground, we offer over 12 different model series customized to fit your site for maximum endurance. APPLICATIONS Primary crushers // grizzlies // draw points // stopes 1-800-567-8267 300 BOOM-TO- BREAKER COMBINATIONS POWER YOUR PRODUCTIVITY industry a couple of lessons. The first lesson is one that's near and dear to the heart of every true bureaucrat – if it's not in writing, it didn't happen. For MSHA, a day without paperwork is like a day without sun- shine. As an attorney, I'm hardly one to complain about all the paperwork MSHA requires inspectors to do in order to docu- ment inspections and investigations, enforcement actions and the like. First, all those documents are typically quite useful to me in litigation. Second, I'm mindful of the fact that my own profession has consumed vast forests for notes, briefs and the like. I'll not be the first to cast that particular stone. In contrast, miners and the mining industry aren't paperwork enthusiasts. It's not 1:1, but you might say that the larger the pile of paperwork, the smaller the pile of concentrate, aggre- gate, sand, etc. No matter though. MSHA believes that more paperwork will make our mines safer and healthier. How do we motivate miners to conduct thorough exams, iden- tify hazards and correct them? MSHA's answer: Paperwork! Lots of it! How do we get to zero? More paperwork. Who knew? Second Lesson The second lesson MSHA wants to teach us is that it can promul- gate a new rule based solely by its belief that the rule is justified and while frankly and forthrightly admitting that it cannot quan- tify the benefits of the rule. Data? Actual experience? MSHA needs none of that to promulgate a new rule. MSHA is happy to saddle the industry with $276 million in additional costs over the next decade or so (that's MSHA's esti - mate, not the industry's) for a rule that may not be beneficial. MSHA cannot quantify the benefits of the rule, and it doesn't care to. It wants industry to know that it can't be bothered to even try. This is MSHA spiking the football. So, what to do? Mine operators would do well to work with their counsel to develop compliance plans to meet the new requirements, particularly in light of some uncertainty in interpretation. In many cases, this will require new systems, procedures and even staffing for: • Completing and handling additional paperwork. • Checking records to be sure that proper follow-up occurs in documenting corrective actions. • Retraining all miners on the new protocols. •  Auditing crews to ensure that they perform all required examinations of the right places at the right times (before or as work begins, and before exposure of miners to adverse conditions) and with notice to miners of adverse conditions found that are not promptly corrected. Beyond that, the first final rule was challenged in court, and MSHA's second final WPE Rule may yet see a challenge. Rulemaking challenges are always hard to win, but I can't think of a rule that's more ripe for a challenge.

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