Aggregates Manager

November 2017

Aggregates Manager Digital Magazine

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28 AGGREGATES MANAGER / November 2017 Yet again, MSHA pushes the effective date of and proposes additional substantive changes to final rule. K. Brad Oakley is a member in Jackson Kelly PLLC's Lexington, Ky., office, where he practices in the Occupational Safety and Health and Litigation Practice Groups. He can be reached at 859-288-2835 or kboakley@jacksonkelly.com. Adam J. Schwendeman is an associate in the firm's Occupational Safety and Health and Litigation Practice Groups. He can be reached at 304-340- 1077 or aschwendeman@ jacksonkelly.com. Workplace Examination Rule Delayed I n the ongoing saga of the Mine Safety and Health Administration's (MSHA) effort to modify the workplace exam rule, the agency has again published proposed changes to the final rule — and its effective date — that was initially published on Jan. 23, 2017. The most recent proposed rules follow two previous publications by the agency delaying the effec- tive date of the final rule, which was originally set to take effect on May 23, 2017. In March, MSHA published a proposed rule to delay the effective date until July 24, 2017. After recei- ving comments from stakeholders, the agency published a final rule in May and again pushed back the rule's effective date, this time to Oct. 2, 2017. On Sept. 11, 2017, MSHA made available for public viewing two proposed changes to the final rule. The first proposed rule amends the final rule that revised the Workplace Examina- tion standard. The final rule is the subject of a legal challenge in the U.S. Court of Appeals for the Eleventh Circuit. As has been well documented, the final rule made the following changes to the Work- place Examination standard at 30 C.F.R. §§ 56/57.18002: • Requires examinations of each working place before miners begin work in that place; • Requires mine operators to notify miners of adverse working conditions in their working places; • Requires the examination record to include: the name of the person conducting the exa- mination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect safety or health and, when necessary, be supplemented to include the date of corrective actions taken for adverse condi- tions; and • Requires operators to make examination records available to miners' representatives in addition to authorized representatives of the Secretary. In its most recent changes, MSHA states that it is considering changes to the final rule to address two issues: (1) when working place examinations must begin; and (2) the adverse conditions and related corrective actions that must be included in the examination record. With respect to the timing of examinations, MSHA is proposing to modify the final rule such that a working place must be examined before ROCKLAW by K. Brad Oakley and Adam J. Schwendeman

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