A Resource Blog on MSHA and Above Ground Aggregate Mines

Navigating This Website:

Hi,

Thanks for stopping by to take a look! We hope that you will find some useful information as you browse this site. We welcome you as part of this informal group where we can communicate about what is going on in the industry regarding MSHA. Please feel free to leave your comments (but remember that MSHA does read this site too.) To contact us through the phone or email with your stories and concerns, call Cary or Kathy Matthews, at 541-536-1771 or 541-410-4673 (Cary's cell). Our fax number is 541-536-1772. You can email us at: lapineredimixinc@hotmail.com

New blog posts are featured on this page, and other information is found by category by clicking on the pages links above.

We encourage you to join up with your local aggregate association, because there is strength in numbers. If there is not one in your area yet, please consider forming one.

Take care, and remember to be in contact with your state officials to voice your concerns about MSHA. Our tax dollars pay for MSHA, which is under the Department of Labor. Our fine money goes into the general fund, and we cannot afford to keep paying out costly fines on the more and more frequent trivial citations to essentially support government spending. At least that is how I feel about it.

~ Kathy


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Monday, August 17, 2009

News and Upcoming Events:

I have added new information at the bottom of the sidebar, above the hit counter. There is a list of Blogs that talk about MSHA, and a list of Research Tools for learning more about MSHA. Please let me know of other sites you would like added to those lists.


Link to Other Blogs about MSHA:

http://en.wordpress.com/tag/msha/

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There are two interesting articles regarding MSHA in August's online Rock Products magazine. The first is by Adele Abrams, " Citation History Bites Back", and the second is by James Sharpe, "An MSHA Survival Guide". Click on the links below to read the articles.


Thursday, August 13, 2009

MSHA Meets with OIAA and Other Interested Parties for Guarding and Highwall Trainings:


On Wednesday, August 12, 2009, around 150 people attended a MSHA training meeting at the Mission Mill Museum in Salem, Oregon. MSHA was represented by Rich Laufenberg (Acting Administrator, M/NM) , Harvey Kirk (Guarding Specialist, Safety and Health Division, National Office), Kevin Hirsch (Supervisor, Vacaville, CA), Ron Jacobson (Field Office Supervisor, Boise, ID), Brad Breland (Field Office Supervisor, Albany, OR) and Evan Church (Small Mine Compliance). Mr. Kirk gave the presentation on Equipment Guarding, and Mr. Laufenberg presented information regarding Highwall Safety. Following the presentations was a question/answer and discussion period.


"Equipment Guarding"

by

Harvey Kirk



Here are the meeting notes I took on Harvey Kirk's Equipment Guarding presentation. For the complete DVD on this subject and to obtain the 2004 handbook titled: Guide to Equipment Guarding , please contact Mr. Kirk for ordering information. The Power Point presentation that Mr. Kirk used at the August 12th meeting is also available. His email is: kirk.lewis@dol.gov and his phone number is (202) 693-9617. There is also a new training resource video coming out from NSNGA, and it has information on guarding included. It will cover the process from crushing to trucking to stockpiling.

Mr. Kirk explained that his department focuses on reducing the number of fatalities, injuries, illnesses and risk to miners. He also strives to improve the consistency of guarding inspections and compliance between regions and across the nation by explaining those that are most cited and least understood. Mr. Kirk explained that there are around 100 serious injuries each year, as well as at least one fatality. Along with the number of miners who become permanently disabled from guarding accidents, there are scores of those with lost time and restricted duty. He gave a statistical breakdown of how the injuries happened, and it was interesting to learn that around 60% of injuries occurred during times maintenance.

Mr. Kirk introduced two terms for the group to consider: Residual Risk and Tolerable Risk, saying the the latter should be our goal. The rules on guarding standards are explained in the MSHA manual and it is important to know the standards and to read the preambles. The main goals are to guard against inadvertent contact of machinery and the guarding of engine drive belts on off-road vehicles (loaders, etc.)

The following materials can be used as guards if they are in good shape, strong and flexible: screencloth; rubber (if it is secured and replaced when needed), lightweight aluminum tubing; Tensar high-strength webbing; custom shapes or cut to fit plastic; plexiglass (may need to be replaced if scratches block the view) and sometimes wooden guards are fine. Plastic construction webbing is not okay, and neither are screens with sharp edges.

Mr. Kirk advised the following points:
  • Be aware and guard against the whipping action of V-belts when they break.
  • Make sure there are emergency stop switches on unguarded conveyors and walkways; making sure they work and are in good condition.
  • Railings have to be in a good position and be structurally capable.
  • Have good skirtboard and pinch point guarding.
  • Return idlers are very dangerous and are killers. Make sure they are guarded if people will be walking by them or under them.
  • Make sure to guard all running "nip points".
  • Guards need to be checked and maintained. Vibration over time will cause a loss in effectiveness.
  • Guards must be held securely in place at all times, either by fastening or held in place by its own weight, bulk or method of attachment.
  • Pins and sleeves are a great idea to secure guards.
  • Plastic wire ties are okay if they are heavy duty and there are enough of them. They must be kept in place and maintained (replaced when they get old).
  • Read the specifics of CFR 56/57.14105: Procedures During Repairs.
  • Guard your stationary grinding machines carefully. A peripheral hood is fine as long as it covers 270* and the maxium gap from tip to wheel is 1/4".
  • Watch for dangers where the likelihood of injury is low, but the severity is high.
  • Look for guarding problems in daily workplace exams and fix them immediately.
  • Presses can be adequately guarded by using Plexiglas shields.
  • It is a really good idea to color code your guards.
  • Use extended grease fittings to avoid contact moving parts. During winter months, use thinner grease for better flow through the hoses (EP2 works well).
  • Hinging guards is fine.
  • Make continuous improvements on your guards. Don't make them too heavy; weld handles on them if it will help them function better.
  • Beware of those moving parts that you consider "guarded by location". Any change or modification can cause loss of protection and something that was once safe is no longer.
  • Area guarding is not for convenience. Only area guard when you can not use a point of contact guard.


"Highwall Safety"

by


Richard Laufenberg



Mr. Laufenberg talked to the group about highwall hazards and how to keep highwalls safe. Highwalls are in the MSHA manual under CFR 56.3130 which discusses wall, bank and slope stability both from above (falling material) and from below (loss of support).

The first thing to do is to eliminate hazards by both recognizing the hazard and correcting the hazard. Owners and operators need to study their own wall formations to determine the unique possible hazards at each site. Look at the highwall from both directions (facing the wall and parallel to the wall). Check to see if there is a 50% chance that the wall is unstable and ready for separation. Look for wedges formed by geometry and orientation. The wall beds will be effected by moisture, freezing and thawing, and will change over time. Check the joints of your wall. If there is a possibility of wall failure, block access until you have corrected the problem. If you can not correct it, it becomes unusable and you need to place warning signs and put barriers in place to prevent access.

Never get between your equipment and the highwall.

Types of Highwall Failure:
  • Massive wall failure
  • Planar failure
  • Wedge failure
  • Toppling failures
  • Circular failure
  • Highly fractured rock mass
  • Rock falls. Rock fall factors to consider: exposure, block weight and geometry.
  • In the Northwest the most important thing is rock removal. This can be done by resloping, trimming and sealing.
  • Keep good records of your highwalls. Note any changes, no matter how small.

Protective Measures for Highwalls:
  • Examination of ground conditions and monitoring of highwalls.
  • Restrict access
  • Equipment position
  • FOPS (Falling Object Protective Standards)
  • Mesh
  • Benches
  • Berms
  • Computer modeling
Know the CFR 56.3131 - Pit or Quarry wall perimeter information. Keep the benches clean and maintained at leas one level above the mining operation. Also know CFR 56.3401 - Berming and examination of ground control, doing exams weekly or more often.


Discussion Period Notes:

During the first part of the question and answer period, Harvey Kirk had the floor. Questions ranged all over the board, and I will try to summarize the discussion here.

  • Brad Breland assured an audience member that ample time would be given to fix guarding situations, instead of forcing a band-aide approach in an effort to just get things done quickly.
  • I asked why the crusher and washplant manufactures were not required to install proper guards prior to selling their new equipment, so that we didn't have to scurry around trying to retrofit guards in a hit and miss fashion. Mr. Kirk said that you could order them that way, including that request in your bid. (I later found out that MSHA does not have jurisdiction over the manufacturers, only over our pits and the equipment we use in them.)
  • When asked which approach gets better results, citations and fines or non-punitive cooperation, Mr. Kirk said that if an inspector sees a violation they have to write a ticket. He suggested that operators go back and fix the problem so that there would be no citation written in the first place.
  • When asked how things went at the Field Inspector's meeting held the day before, and which things did the inspectors ask for clarification on, Mr. Kirk said that they asked such questions as if bolts were required. At their meeting, he cleared up misconceptions about guarding issues. Urban legends were dispelled. New inspectors still need to learn about guarding, and they had questions that he answered.
  • Kim Redding pointed out that inconsistencies between inspectors about fixing guards cost mine operators up to $34,000 in fines and a lot of time to fight the incorrect citations. Mr. Kirk replied that Congress made those rules about the increase in fines. If you feel that the citation is unjustified, talk to the inspector. The inspector has an obligation to justify the tickets that they write, as well as explain the reasons why he wrote it to the operator. If you get nowhere with the inspector, go to the Field Office Supervisor, then to the district level if you need to. There is a process to be followed. Mr. Kirk also said that inspectors should not be writing citations unless it is a true violation; they cannot just make them up.
  • Cary Matthews asked if it was really true that it was mandated for inspectors to issue citations and that they would be prosecuted if they did not. He wondered if Mr. Kirk knew of anybody who had actually been prosecuted for this. Mr. Kirk said, yes, he did know of somebody that was prosecuted, around two years ago.
  • Cary then brought up the Mike Davis letter of March that instructed inspectors to be courteous and professional to small mine owners and operators. He wondered what recourse mine owners have if they come across a rude and unprofessional inspector. Mr. Kirk said that in that case, the operator should write to the Office of the Assistant Secretary or call them. Give the circumstances and name names. Neal Merrifield and Mr. Kirk will investigate and respond. They have trained investigators and will respond.
  • Mr. Kirk was asked why the industry couldn't partner with MSHA like they can with Oregon and California OSHA, and why was it that only smaller mines could receive free consultation and education and not larger ones. Mr. Kirk replied that MSHA did have National Alliances with some organizations, but they do not apply to aggregate plants. There are some for the coal mines and for explosives, and the cement industry though. He suggested that we talk with Congress. As far as the difference between OSHA and MSHA, OSHA has specific standards, while MSHA uses the gray area.
  • The question arose about the guarding standard for non-work related, and about inspectors deliberately laying on the ground and putting their arm up inside a guard and then writing a citation for unsafe guarding. His operation was cited for not bottom guarding tail pulleys 5" to 6" off the ground. Mr. Kirk said that there were misconceptions about that, and that the inspectors are getting retrained on that very issue. All of the people in the field office have been retaught on the tail pully requirements; retraining and review has been done.
  • A question was asked about inspector interpretation being an issue, and if inspectors were graded on a daily basis to find their weak areas so that operators do not have to keep wasting time and money over the varying inspector opinions. Mr. Kirk replied that there were new training packets prepared for the new inspectors at the academy and that the experienced inspectors were being retrained. Managers from other districts are going into other areas to see how things are being done. Peer evaluations between the field offices are taking place. Checks are being made on the quality of inspections.
  • Dennis Ingram said that one problem is the drastic black and white practice in subjective situations, the only choice for the inspector is to write a citation or not. He stated that there are many safe minded people who were very upset because practices are not consistent across the board, and that it should be possible to have a different approach, as in other government agencies. Mr. Kirk responded by saying that there was a line act by Congress to improve the selection of inspectors, and that we all have our own life experiences. Just like in selecting a juror, inspectors need to be reasonable people doing their job and they will be corrected if they are wrong.
  • In answer to that, an audience member said that there is no money in the alternative. Consistency in inspectors is what we need. He gave the example that he had not had a ticket for years and years because he runs a safe operation, and then last year he received 20 tickets.
  • Mary McNatt stated that OIAA and like minded organizations want to be working partners with MSHA, and that we do not like to be in an adversarial position. We want to work together to lessen frustrations. Mr. Kirk suggested that we work together at a local level with the field offices. Then, he handed the floor over to Mr. Laufenberg.
  • Mr. Laufenberg told Mary that he would pass her request on to headquarters. He said that attending Spring Thaws and trainings such as today's all help to build relationship. He said that their agency is trying to be as consistent as possible. There is an Office of Accountibility and Performance and consistency is the goal. They review reports, work with Kevin Hirsch, and are out in the field more than ever before. Mr. Laufenberg assured us that allegations are reviewed at the highest level, even if we don't hear about the results.
  • The question was presented that all of these were reactive issues instead of proactive ones. The audience member appreciates how Cal-OSHA comes out and consults, but MSHA does not. He thought it would be great if MSHA would. He said that this meeting was very informative, but was not going to fix the issues in the field.
  • Mr. Laufenberg responded by saying that they came out to Oregon to do their presentations. Were those helpful or not? If you do your guarding over and above what is required and you won't get a citation. Members of the audience said, yes, this meeting was very helpful and we really appreciated them coming.
  • The question was asked about highwalls, was there any measurement info available, as in how high can they be and still be safe? Mr. Laufenberg said to use the best practices recommendation, it was really a site specific issue. If you are still needing to know more about highwalls, contact MSHA's specialists for guidelines and technical support.
  • A question was asked about whether or not the requirements that geologists gave met MSHA's criteria, and is there more that the mine operator needs to know besides the geologists report. Mr. Laufenberg said that benching is an option, not a requirement. You can scale the highwall, berm it, or evacuate the area. Geologists can give advice, but MSHA has rules on maintaining safety. There is exposure for each individual mines, and daily or weekly inspections are suggested.
  • Gary Clapshaw asked Mr. Laufenberg about how he felt about the heavy handedness being applied to above ground mines because of what happened with the coal mine disasters. The answer was that in 2006 the Part 100 was changed to increase fines, because some mine owners had found it easier to just pay the fines and not fix the problems. MSHA is concerned about the safety of the miners, and this is a nationwide and important issue. He knows that we care about our employees and want to be safe also.
  • I stated that when Mr. Merrifield came and spoke with us, he told us that 2 years ago there were $25 million in MSHA fines received into the general fund, and that there are now $250 million in MSHA fines written. I said we don't have the money to keep paying those kind of fines. He just looked at me. I said, I know you can't fix it, we just don't know what to do and who to talk to about it. The meeting broke up shortly after that.
(On a side note, I wondered if there are companies who go around to mine sites to review, manufacture and install site specific equipment guards for crusher and washplant operations. If anybody knows of some, I would be happy to list them on this website.)

Monday, August 10, 2009

Photos of the August 12th Meeting:

Cary Matthews and Dennis Ingram in
front of the Mission Mill Museum



OIAA Board President Mary McNatt
welcomes the group.


MSHA's Ron Jacobson and Rich Laufenberg
with Genoa Ingram and Mary McNatt


A meeting attendee visits with Harvey Kirk
as Genoa sets up equipment. Rich Laufenberg
and Dennis Ingram converse behind them.


MSHA's Richard Laufenberg
with OIAA's Dennis Ingram



MSHA's Kevin Hirsch and Ron Jacobson





MSHA's Harvey Kirk and OIAA's
Genoa Ingram, Court Street Consulting


OIAA Board Member Jerry Davidson and his son Waylon,
J. Davidson & Sons Construction


Kim Redding of N-Compliance, with OIAA Board Members
Dan Kauffman, D.K. Quarries, Inc.,
and Andrew
Siegmund of Siegmund Excavation


Kevin Hirsch and Ron Jacobson


OIAA Board Member Cary Matthews, T.M. Sand & Gravel
and MSHA's Evan Church



Saturday, July 18, 2009

OIAA and MSHA Meeting, July 15, 2009:


Genoa Ingram, Court Street Consulting
Jim Sharpe, Sharpe's Point
Cary Matthews, La Pine Redi Mix, Inc.

Cary and I have been traveling back and forth to Salem frequently to attend board meetings for an association that we belong to, the Oregon Independent Aggregate Association. OIAA was formed last October, and our first main issue to be dealt with was MSHA, otherwise known as the Mine Safety Health Association. MSHA is under the Department of Labor, and inspects coal mines, metal and non-metal mines, rock crushers and drilling operations.

Recently, they have increased the dollar amount of the fines and have put in this tricky little thing called pattern of violation. Pattern of violation reminds me of getting to the next level in a video game ... if you have a certain number of citations in a certain amount of time, your fines increase from about $250 each to $20,000 or more. This is something that really hurts, and, in some cases even destroys small companies. Also, there has been a lot of inconsistency in what is a deemed a violation or not. One inspector may say something looks fine, and the next one writes you a ticket when nothing has changed since the last inspection.

On top of all that, in the Western District, where Oregon is, there have been some inspectors (not many) who are aggressive and antagonistic; treating the mine owners and operators with rudeness and unprofessional behavior, as they write these huge tickets. I know this sounds like exaggeration and slanted reporting, but trust me, it is true.

That is the background. Mine owners and operators have tried to go up through the ranks and get some of these issues addressed, both locally and regionally. We did not get much help. Then, something rather good and nearly amazing just happened. On Wednesday, July 15th, one of the head people from MSHA, Neal Merrifield, came out to meet with our small association. Also in attendance were Arthur Ellis, the head of the Western District and John Pereza. We were also fortunate enough to have Jim Sharpe, from the industry online magazine called Sharpe's Point attend our meeting. Jim's website is www.sharpespoint.com

In addition, the above MSHA staff and others visited several local mines on a fact finding mission to see what the mines looked like and how they were operated.

The meeting itself lasted for 3 hours and was very positive. Most of us felt as if our voices were heard. Hopefully we will be seeing some changes in consistency and in how we are treated by MSHA. We very much appreciate Mr. Merrifield and the others coming out to meet with us.

~ Kathy

Meeting Notes:

As the meeting began, Neal Merrifield stated that even though this was an informal meeting with the mine owners and operators, there are many rules in place for set by the Dept. of Governmental Affairs and the Dept. of Labor, under which MSHA must adhere to. He apologized for all of the restrictions he put in place for this meeting, including the small group size and why staff from the senators office and congressional aides were not allowed to attend.

Mr. Merrifield explained that under the federal guidelines, there were two acts that MSHA goes about enforcing: The Mine Act, and the newer Miner Act. Recent coal mine disasters have brought on the Miner Act, and specifically the Part 100, which deals with fines and how to go about exact implementation of the act.

In 2005, there were 25 million dollars in fines levied against companies. Last year, there were 250 million dollars in fines. (Fine money goes into the general government fund, not to the MSHA agency.) Mr. Merrifield stated that he himself is shocked by the increase in individual fines. MSHA has to follow the mandates, and are audited by seven different sources, including MSHA Headquarters, MSHA District Offices, MSHA Special Investigations, litigation, internal audits, the office of accountability and even AIG.

The Office of Accountability is new. It keeps track of the number of violations, the types of violations and all other criteria that involved in MSHA enforcement. The Office of Accountability looks both for lack of enforcement by inspectors and for too much enforcement. There is inspector critiquing going on constantly. They are looking for consistency, both district wide and country wide.

The Western District, which includes Oregon, has written fewer tickets this year than the year before. There is elevated enforcement in the Western District, half the national average. Tickets on guarding have increased because there were fewer tickets written on guarding last year, which comes out to a statistical increase. According to the statistics, there is no enforcement abuse. As far as individual compliance, there is consistency across the nation.

Mr. Merrifield talked about how inspectors are required to follow the Performance Standards, Part 30 in order to do their jobs. Following those standards, the inspector must first deem that a hazard exists. One inspector may say that something is a hazard and the next inspector may say it is not a hazard. Though all inspectors go through the academy and are thoroughly trained, some are more experienced than others. One half of all the MSHA inspectors have less than 5 years experience on the job. Some of those with less than 5 years have no actual mining experience. In the past it has been difficult for people to apply for inspectors jobs, but that is changing and those applying do have more mine experience. The inspectors believe that they have no choice but to write a ticket; it is NOT okay to walk away from a violation.

After exhausting discussion with an inspector and pointing out mitigating circumstances, mine operators have these avenues to appeal their citations:

1) Use the appeal process.
2) Contest the citations with the Administrative Law Judge
3) Request a Commission Review (that can take up to three years for a hearing.)

Limited by Congress and the Mine Act for any actual procedures to be established, it is always good for mine operators to communicate their grievances by going up the chain of command. After talking to the inspector, call his field office supervisor. If that does not help, call the manager of the Western District, Mr. Arthur Ellis in Vacaville, CA. If the mine operator is still not satisfied, call Mr. Merrifield himself in Washington D.C. Mr. Merrifeld reminded the group that inspectors take pictures of what they are writing the citations on and they put those pictures in the each mine's MSHA file. The supervisor will look at that picture to review the operators case to make a determination of whether or not the ticket is valid. He will also call and ask the inspector the details on what happened, and then make his determination if the ticket should be kept or dismissed.

When an OIAA board member stated that it seems like MSHA inspectors are afraid of their own company, that phone calls are not being returned and that things are not currently working the way that they should be in the Western District, Mr. Merrifield said that he had heard those things but would not be addressing them today.

Mr. Merrifield said that one way for changes to be made is for Congress to pass a bill that then becomes law, as in the case of the New Miner Act. That takes national support, and he suggested that larger associations than OIAA could perhaps help. There is another way to get change to happen, and that is through regulation change or rule making proposed by the agency. Rule making does happen all the time, and in fact, the aggregate industry wrote the majority of the Part 46 Training with associations helping to get it written and passed. After allowing time for everybody's comments, either elected officials or MSHA can change the rules.

Mr. Merrifield stated that there are a lot of changes going on within MSHA itself currently. Mike Davis, the acting head of MSHA is being replaced by Joseph A. Main. Because of the new administration, there are quite a few unfilled positions in the budget requests and planning departments, but when Mr. Main gets in there he will appoint the people that he wants. [Editor's note: Joe does have a heavy background in the unions, and President Obama has recently designated $10 million dollars to MSHA.]

Mr. Merrifield assured our group that his people will talk to us in a professional manner and that we were to treat the inspectors with respect in return. As far as the mines that he and the MSHA staff looked at the previous day, Mr. Merrifield stated that everything was guarded fine and met the requirements. He also said that the things looked good regarding the high walls that he observed.

High walls are not to be taken lightly. It is MSHA's job to protect the miners on hazards, and things like taillights should not be a big deal. There are three areas to look at regarding high walls:

1. No hanging materials.
2. Benching of high walls - if you do a bench, keep it clear of material and have equipment that can reach the top of the bench.
3. Keep 10 feet of clearance from the top of the high wall.

Mr. Merrifield realizes that not everybody has the same amount of resources, and that some operators have more money and better equipment than others do. He also realizes that the quality of material and the economy effect operations. However, all of that does not have to do with what is in the CFR, and if you do not meet the CFR then your company will get a ticket. If you can show where the inspector is wrong then tell them. It is possible to talk your way out of a citation if you are correct and the inspector is not.

New outreach and training programs are now available, and are on the way. There is a new DVD about guarding, written by Harvey Kirk. Technical support on high walls is also available. There is also a training video being produced especially for the aggregate inspectors themselves. Operators will be able to use it too. Another resource regarding free information from the MSHA Academy is available, and we were told that individuals can sign up and attend the MSHA Academy for a low cost. The Academy will also travel to put on classes. Something else is in the works. Aggregate producers are not metal and are not non-metal, so we are going to get our own special attention now.

A new initiative is being developed focusing on the Top Ten list of Injuries and Fatalities. Though accidents and fatalities are at their lowest rate ever, they are still happening even though industry is being more careful. Last year 22 people died in mines and this year there have been 12 deaths. MSHA can try to influence safety, but operators are the ones to keep things safe.

Operator Concerns:

One of the meeting attendees stated that there are lots of family involved in these smaller operations, along with long-time employees. Owners want everybody to be safe, and to comply with the rules. It is very difficult when the inspector makes an off-the-cuff judgment call on a citation, and the operator can not anticipate what the inspector will say or do. The inspector may try to overdo things, such as requiring guards that box in material and then when the material builds up, the equipment fails. Repairs and time loss slow productivity and costs money. Operators are told that there is nothing cut and dry and that "it depends upon the unique circumstances of your site". There is not a clear answer for the operator to go by, and there is a gap between advisable (good practice) and what is mandated only. What is good, safe practice? We do not want to learn from the citation process only.

A board member gave an example from his own company. He has had three different inspectors and 5 sets of guarding in 5 years wrecked. This has been expensive and very frustrating. He understands that MSHA is not OSHA and that they operate within the gray area, but feels that the gray area is being used against the operators.

Mr. Merrifield answered by saying, first read the guarding instructions. There are only acceptable and unacceptable guards. Extend the grease lines if you need to, so you will be greasing in a safer manner. Walking under an unguarded belt will get you in trouble. The interpretations state that guards have to be secured. Administration can only act on what information they have. He said do not let anybody lay underneath the guard and stick their hand up there ... that is not ticket material, and if you see an inspector do that, take your own picture. He asserted that, "The buck stops with me."

Mr. Merrifield is striving to make things as consistent as possible. He said that sometimes everybody makes mistakes and not to take it personally. He stated that if he has people working under him who do take things personally, then he does not need those people working under him. MSHA could make things much more specific, but they leave it open so that you can meet the standards in your own way.

Best practices was also discussed. Operators can only be cited on CFR's, but it is recommended to use best practices. Also, we were encouraged to read the preambles for everything in the program policy manual so that we can better understand the reasoning behind the standard, in detail. For instance, there is no rule on what guard material is supposed to be made out of as long as it works for the job. Example: metal and rubber are okay, paper is not.

When it was pointed out to Mr. Merrifield that everybody has their own interpretation due to the vague way things are written and it is easy to add to a pattern of violations with even minor citations, and that is why everything is being fought. Mr. Merrifield went over the things to do when a citation is received: 1.) Contact the field office supervisor and take a picture of what is cited; 2.) The Field Office Supervisor and the Western District Manager will both look everything over, if necessary. Inspectors, supervisors and managers all have their rules to follow and he knows that everybody is trying to help.

It was pointed out by a board member that we were appreciating the constructive dialogue with Mr. Merrifield, and that there was not a personality conflict. He stated that he was now feeling like our voices were being heard and that it meant a lot.

Mr. Merrifield said that he would have been doing us a disservice if he had flown all the way out here and had not checked on several of our mine operations. Things looked good at the places he visited. He stated that he thinks everybody was trying to comply, and though he did see some violations that he wasn't there to give citations. He believed that there was an intent to comply on the part of the operators.

When asked if there was a special enforcement effort being made and if Oregon operators were under scrutiny, Art Ellis replied that there are several factors that effect incidents. These include the number of man hours, the ground conditions and special incidents. Special incidents are things like people falling off trucks and dying. He suggested that the operators take a good look around their facilities and correct things before MSHA gets to them and issues citations.

When told that operators want to be pro-active on safety, Art Ellis suggested that mine operators take advantage of the services offered by people such as Evan Church. These people do courtesy visits and go through everything, but do not write citations. It is also possible to take pictures and email them to Art for his review so that he can give suggestions online.

A question regarding courtesy visits and the news that there were going to be six courtesy inspectors assigned to the Western District (3 for small mines and 3 for large mines) and if that had happened was asked. Art Ellis said that he has requested that to happen, but that they haven't arrived in this area yet. Mr. Merrifield said that if there is a new mine or a new facility, then the courtesy visit team would be of help. For existing operations there are not enough resources because the inspectors need to meet visitation requirements. There have been 100 educational visits in this area in the past 5 years.

Mr. Merrifield said that every surface mine is supposed to be inspected twice yearly and every underground mine needs to be inspected four times a year. He said that there is a new, aggressive "Health Program" that has begun regarding testing for contaminants. In the past, only noise and silica were tested for. Now the testing is for 20 different contaminants, including asbestos, lead, mercury and others. He said that there is a list of all of them on the O & G website. Art Ellis said that for aggregate mines they will concentrate on dust and noise.

When asked that if MSHA is fully complying with the twice and four times a year visits to fully perform, would there be too much pressure to write citations? Mr. Merrifield said only if previous inspectors did not do their jobs well. It was then asked that if an inspector wrote fewer citations than the average would he be considered neglectful? Mr. Merrifield said, no, historically some mines do not get very many tickets. There are checks and balances in the system. Citations are time consuming and each one requires the inspector to record, report, pictures need to be taken, field notes on violations are detailed.

A discussion on rule making requests and how to go about that was next. OIAA or operators can write a letter recommending something to be added or changed and MSHA will look it over and discuss it. It very well may be rejected, but it may also be accepted. For instance, if operators would like to see a change where instead of citation dollars going into the general fund, they could spend the same amount of money correcting the problem that MSHA has found. It is not a new concept.

MSHA is in the process of expanding it's capability to handle litigation. This is under the OSRV Department led by Pat Silva. There are more attorneys and more administrative law judges being hired.

When asked if MSHA was an enforcement agency or an agency that was focused on safety, the answer was that enforcement agencies are never popular, and that Mr. Merrifield does not want to see operators fail, as he used to be one himself. He tries to do the very best job that he can, and has asked for resources for repairs and studies. He does see deficiencies, such many tickets written in a short period of time and personally recognizes that there is a problem. It is not only his problem either. There have been so many citations issued with people fighting them, that there is now a backlog of three years for the Administrative Law judges. If things keep going as they currently are, some cases could now take 10 years before resolution is achieved. Mr. Merrifield said that sooner or later something will happen to force a change.

Mr. Merrifield also said that MSHA's job is to protect the miners and that they go by CFR safety standards. The Small Mines Act has been helpful. The inspector's job is to inspect the mine and to explain the hazard and the safety standard to the operator when they are writing the ticket. They are not there to preach, but they do need to be direct as enforcers and they also need to be professional.

It was pointed out that there is no other enforcement agency where discretion is removed and everything is a mandatory fine. Mr. Merrifield answered that by saying that once an inspector has used his discretion to determine a violation exists, then he has to write the violation. If it is above the inspector's knowledge, he should get an expert in. If the inspector is wrong, call and ask a supervisor why the citation is being written. It was pointed out that over 50% of the tickets are vacated, but Mr. Merrifield said that in Oregon there is a 2 - 2.5 % rate of citations which are actually vacated.

Regarding professionalism and how much harm a "rogue employee" can do, Mr. Merrifield stated that relationship has been built between the operators and the MSHA staff at this meeting. He said to not bypass Art Ellis when problems arise, and to call him first after contacting the field office supervisor. He said that all complaints will be investigated, but that the information on any actions against his employees and any determinations will not be shared.

Mr. Merrifield said that it is a small world, and that he hopes that today's meeting has been beneficial. They have heard what we have had to say and will be discussing this meeting with the field office in Albany, including the inspectors who work there.

Saturday, May 9, 2009

On May, 8, 2009, the Oregon Independent Aggregate Association sent an important letter to MSHA and other interested parties. A dialogue has been opened between MSHA officials and OIAA over the past few weeks. Following is an excerpt of the portion outlining the association's initial objectives.

If you feel that OIAA's work is important, and that your company would like to be a part of what is going on, you are invited to join us. Please call Genoa Ingram, Executive Director, at: 503-378-0595. There is a link on the sidebar to OIAA's website for further information. If you do not live in Oregon and would like help forming your own association, Genoa can offer you suggestions. I think it is important for each state to have an independent aggregate association, and for all the associations in each district to touch base with each other on a regular basis.

~ Kathy


"OIAA has identified the following to be the association's initial objectives:


1. Measures to make certain that the mandatory requirements for operators are uniformily known by both the operators and by the inspectors that are charged with issuing citations rather than determining requirements in an adversarial process.

2. Provide assistance and communication among aggregate producers to educate the members on requirements and appropriate actions that should be taken. OIAA believes it reasonable to expect that an effective educational process can address all of the mandatory requirements for safety and health compliance.

3. Properly inspected operations, with reasonable trained operators, where few, if any citations and minimal penalties are required to meet the mandated safety and health requirements is to become the appropriate measure to determine if MSHA has compiled with its legislative and regulatory mandate.

4. Work with MSHA to articulate and to provide information to operators and miners of the particular measures that are to able to be implemented and maintained for the necessary compliance with the mandatory safety and health requirements as specified in the Mine Act and the Code of Federal Regulations.

5. OIAA will be seeking administrative and regulatory changes, or legislation, which will result in clarification of these mandatory safety and health requirements in place of the discretionary judgement of individual inspectors and managers."


Tuesday, May 5, 2009

More Articles on MSHA:

Please check out the informative new articles in the July 2009 online edition of Patton Boggs regarding MSHA, at the following link:



Article Titles:


"Congress Increases MSHA Funding"

"MSHA Rulemaking Rush Continues"

"New Pattern of Violation Notices"

"MSHA Citations for Violations Increases"

***************

Hi,

I have added a lot of information to this website over the past few days.

There are two articles written by Adele Abrams posted in the segment directly underneath this post. One of the articles is on guarding and the other is titled:
"Court Allows MSHA to Cite Multiple Employers".

At the very bottom of the page is a lengthy article from Pittney Boggs that is very important reading.

On the side bar, there is a new section with links on related articles; and a new section on links to court cases.

There is also a link to the constitution near the top of the sidebar.

I keep working on updating this page, so please keep checking back.

Thank you for stopping by.

Take care, and best of luck!

Kathy

Saturday, April 4, 2009

Preparing for a MSHA Inspection:


Be courteous to the inspector. Have your camera (or video camera) and notepad ready, to help document what you and the inspector discussed during the inspection. After the inspector has left, write yourself a report on the meeting and develop your pictures. If you do not agree with the inspector's findings, your notes will help later on.

You have the right to be treated fairly and with respect. Mine owners are also taxpayers, and your taxes pay for MSHA.

Make sure to have all of your paperwork up-to-date and in order. The inspector will be looking at the following things in your office:


[] Part 41 Legal Identity

[] Part 56 Safety Standards

[] Safety and Health Audit

[] Health and Safety Policy

[] Part 46 or 48 Training Plan

[] Part 46 or 48 Records of Training

[] Part 47 HAZCOM

[] Part 50 Accident Reporting

[] Part 50 Quarterly Reports

[] Part 62 Occupational Noise

[] Citation and Order Review

[] Miner Rights

[] First Aid

[] Fire Fighting Equipment Inspection
(annual and monthly inspections on your fire extinguishers)

[] Part 45 Independent Contractor

[] State Grants Contacts

[] Education Field Services Contacts

[] Continuity and Resistance Test

[] Mobile Equipment Exams - Checklists

[] Workplace Examinations - Checklists

[] Guarding

[] Occupational Dust Control

[] Risk Assessment

[] Holmes Safety

[] Site Specific Hazards



Keep up on your housekeeping. Make sure that there are no tripping hazards. Keep the outside of your property clean and organized.

The following are things that inspectors consistently look for, so make sure that these are always up to standard:

[] Guarding moving machinery

[] Horns and backup alarms

[] Safety defects

[] Electrical conductors

[] Guard Construction

[] Parking Brakes

[] Berms or guardrails

[] Quarterly reporting

[] Ground system tests

[] Wire and cable insulation and fittings


Misc.:

[] Chock your own vehicles and all equipment when in the quarry.

[] Make sure everybody always wears a hard hat in the quarry.

[] Post the quarry speed limits and other pertinent signage.

[] Make sure that your loaders and other quarry vehicles
do not have cracked windshields, and that their horns and back-up alarms work properly.

[] Inspect your fire extinguishers every month and record this in your paperwork.

[] Make sure that all employees know where your MSDS book is located and that they know how to use it.

[] Make sure that all employees know what to do in case of a fire in the pit.

[] Make sure that people who do work for you in the pit but who are not employees (such as Les Schwab) are registered with MSHA.

********************************************************************



Rock Law 2007
by Patton Boggs LLP, Attorneys at Law

December 2007

The Five Simple Truths

A condensed guide to surviving encounters with the ever-changing
Mine Safety and Health Administration.

by Henry Chajet

The first simple truth needed to survive the new MSHA
is to understand that inspectors are not your friends.

Hopefully, you do not need a Washington, D.C., attorney to
tell you that the Mine Safety and Health Administration (MSHA) is a dangerous agency.

Coal mine disasters continue to prompt Congress and
the unions to attack MSHA for a perceived lack of
enforcement. The result is that MSHA is lashing out
at employers, including non-coal mines, quarries, and
cement facilities, increasing enforcement and penalties
at a record pace.

The risks have become massive.
Housekeeping citations — spilled product — are being
issued as “unwarrantable failure” high-negligence
violations, while light bulbs without guards are being categorized as “significant and substantial” hazards
likely to cause death. Maximum fines are up to $220,000
per flagrant violation, a new term created by Congress that MSHA
defined as including repeat, unwarrantable failures.

Accidents and injuries draw a particularly harsh
enforcement as MSHA tries to prove its enforcement
dedication to its critics (one recent tragic fatal accident
resulted in more than 100 citations). Without an injury,
simple, non-hazardous violations that one year ago may
have been fined $60 to $300 are now penalized thousands
of dollars. Worse yet, a new statistical calculation of
a “pattern” of significant and substantial violations will
cause endless closure orders at MSHA designated mines.

The first simple truth needed to survive the new
MSHA is to understand that inspectors are not your friends.

It is not business as usual,
and they are not at your
facility to help you, regardless of past friendships,
professional respect, your outstanding safety
accomplishments, or their shared dedication to protecting
the workforce.

When something goes wrong, the stuff will hit the fan.
Even routine product spills and technical violations will
impose massive costs, risk of shut downs, and severe enforcement penalties. Yet, cooperation with MSHA
(and any state or federal agency) is required to successfully endure inspections and investigations by these government agents that
recently have begun describing their role
as “law enforcement” officials.

The second simple truth is that mine and quarry
operators must know their rights and duties to stay out of trouble,
and they must understand that the penalty for ignorance can be jail,
significant monetary fines, and
MSHA closure orders.

The most important mine operator rights and duties
include the following:

The right and duty to manage, including training employees
to comply with safety rules, and enforcing those rules with even-handed discipline. Ignoring infractions (or
management engaging in them) will be used by MSHA
to prove a high level of negligence or guilt, while enforcing
rules is a “mitigating factor” that reduces negligence and penalties associated with violations.

Never lie, never falsify a document, and never mislead or conspire to mislead MSHA. Not only is it morally wrong,
but these are felonies that carry potential five-year prison
terms, each, and are not worth risking to “cover up” what
at most may be a willful MSHA criminal regulatory
violation a misdemeanor, with a maximum one-year
sentence and most likely can be settled as civil fine.

Never admit prior knowledge of a violation or hazard.
While lying is not an option, silence is your right (freedom
of speech and freedom not to speak). MSHA inspectors
strive to obtain “admissions” from management agents (e.g. foremen, supervisors, and plant managers) because
admissions make proving their case easy.

The third simple truth that foremen, supervisors,
and site managers must learn is that they can be fully cooperative
without making damaging admissions.
Management agents who are asked, “How long have
you known about this?” (or any similar question
aimed at establishing prior knowledge) should be taught
that truthful, cooperative answers do not require
admissions. In fact, they may include: “I don’t feel like
talking about that,” and “We’ll make sure it gets fixed
right away and doesn’t happen again.”

The fourth simple truth is that, yes, MSHA might
get suspicious if you refuse to answer an incriminating
question, or refuse to be interviewed, but so what?
Better to exercise your constitutional rights and have
them suspicious than to give MSHA your own words to
use against you and waive your rights without any
warning (no Miranda warnings are required from
MSHA nor given by inspectors).

The fifth simple truth is that during an inspection
or investigation, MSHA is only entitled to documents
required by law or regulations. You will waive the
company’s right to maintain confidential its documents
by voluntarily giving them to MSHA, following an MSHA request.
Or, you can refuse or delay, politely referring
to the company’s document confidentiality policy, and
asking for a written request for company review. When
in doubt about whether a document is required by MSHA
rules, you can delay your response or ask MSHA to
show you the regulation, which requires the particular requested
document (e.g. MSHA training records
and MSHA work area inspection records are mandated
by 30 CFR, but maintenance records are not).

There are many more MSHA lessons worth learning
that space does not permit covering in this article.
These five, however, form the core of an MSHA
risk-reduction strategy taught in our management
seminars. Every management official under MSHA
jurisdiction should adopt them.

Knowledge and training is the key to surviving the
new MSHA."









Issue Date: NAQN MARCH 2009, Posted On: 2/4/2009


When MSHA or OSHA comes calling
Willa Perlmutter, Crowell & Morning, LLP, offers tips on how to host an on-site visit from MSHA or OSHA.

by Jon M. Casey
HERSHEY, PA — When businesses face the prospect of an inspection from MSHA or OSHA, managers need to know what is expected to stay in compliance. They also need to know what can be done to avoid problems on a larger scale, problems that can result from warnings or citations from either of these regulatory agencies. According to Willa B.
Perlmutter, counsel with the Washington, D.C. law firm of Crowell & Moring LLP, planning is essential.


Perlmutter was addressing quarry management personnel at the 2008 annual meeting of the Pennsylvania Aggregates and Concrete Association annual meeting held recently in Hershey, PA. There she said, “The more you have nailed down and know what you are going to do in a particular situation, the better prepared you are going to be to handle the unexpected things that come up. If it looks like you know what you are doing, it will look as though you are serving as an advocate for your operation when they arrive,” she said.

“If you minimize chaos before they arrive, they will start from the assumption that this is what your operation looks like across the board. It gives them a certain confidence level in your operation.”

Perlmutter, whose practice targets administrative enforcement and other mining industry regulatory and legislative issues, cited a letter written on Oct. 20, 2008 by then presidential candidate Barack Obama to John Gage, national president of the American Federation of Government Employees, AFL-CIO. In it, Obama said that should he win the presidential election, under his administration MSHA could be expected to change ways that will affect quarry operators and their employees. Now that he has won, the changes can be expected.


The Inspection:


Perlmutter said that when an inspection takes place, it is a good practice to have one company representative devoted to overseeing the inspection. In this way, the company can determine who is taking the inspector around the facility and it will limit any discrepancies that might occur should a different inspector from the initial one become involved in the visit. She said it also allows an opportunity to monitor any conversations that inspectors might have with people on the job, something that is well within the regulator’s scope of responsibility.

Note with whom the inspector had conversations with. Note too the time they had the discussion. She said it is permissible for the guide to know what was said and to write it down for future reference.

“There is nothing prohibiting a correction of information if the employee has errantly given information that is not correct,” she said. “It is important to make the corrections before it turns into a citation. Who it was and what they said is important.”

She went on to say that it is appropriate to ask inspectors what they are thinking in the way of what might be a violation. Ask if they plan to give a citation on that infraction.

“You may wish to say to the inspector, ‘What regulation is it that is in violation? We would be happy to correct it, but we aren’t clear on what the violation is.’ You may wish to take out your blue code book and ask the inspector to show you where the violation is,” she said.

“Immediately correct the violations and, if appropriate, challenge later,” she said. “Involve experts if necessary. Never speculate; stick to the facts. Do not admit to any infractions.”

Perlmutter said that after the inspector has arrived, it is reasonable to wonder if a lawyer should be called in on the business’ behalf. In many cases, it is better if a lawyer is not called in initially, giving the operator an opportunity to correct any deficiencies without litigation, she said. To the contrary, she emphasized that if there is a fatality on the jobsite or if community issues are the reason that the agency is involved, then getting legal advice is the better option.

“You want to establish a cooperative relationship with the inspector as a way to raise their level of confidence in you,” she said. “You want to be clear with inspectors from either MSHA or OSHA that you will cooperate with requests for documents if possible. If the inspectors require more than the Mine Safety and Health Act requires, tell the inspectors that they will have to make the request in writing. In this way, both sides are clear and there is no ambiguity about what is wanted. It also adds a layer of accountability.”

Perlmutter said that when it comes to trade secrets, OSHA has regulations to cover this situation, while MSHA does not. Since under MSHA guidelines there are no trade secret rules, some of the information you may not wish to be shared might include what specifically is being mined in a quarry. When dealing with OSHA on the other hand, the agency needs to know if a business is going to be disclosing trade secrets. When this happens, the business should be able to expect confidentiality on the part of the agency.

“You may not want to discuss quantities or things that you do not want your competitors to know about your operation,” she said. “You may want to say to the regulators that you will provide the information, but that you expect them to hold it as confidential information.”

Perlmutter said that every now and then, an inspector might request a demonstration of some activity. She emphasized that whenever that happens, do not conduct a demonstration. She noted that invariably, a demonstrator makes a mistake. That gives the agency cause to find fault with the process.

She said that if the company guide says stay with the inspector, the opportunity to minimize any penalty is best at the time of the inspection. By pointing out any deficiencies in the inspector’s observations at the time, it may reduce or eliminate a citation in the process. An example would be if an inspector believed they saw a need for a person to tie off when working from a height where there is in fact, no danger of that person falling.

Acknowledging the seriousness of a violation or unsafe condition will only increase the company’s exposure to being negligent in that situation.

“Avoid discussing how long a violation might have existed and whether anyone knew about it,” she said. “Do not give false or misleading statements. Do not give a needless rebuttal to a comment or discussion.”

Once the inspection is completed, insist on a closing conference. Ask for copies of samples, photos, and any information that will be helpful. Be sure to discuss how to abate any violations. Try to correct any misunderstandings. Ask questions. Re-emphasizing the need for management to avoid making any admission regarding violations or knowledge of any of the violation conditions, Perlmutter said anything that is said might be used to support their findings rather than being helpful to the company. “Never lie or intentionally mislead the investigator,” she said.


Do we need a lawyer?

Perlmutter summarized briefly by saying that a company might wish to contact legal assistance if it is clear that legal advice is needed during the inspection. This is usually the best decision when there is a fatality or the community is affected in some way. Other reasons to consider legal counsel could be if costly abatement is needed, if there will be high penalties or if there are flagrant violations at a worksite. If there is a serious accident, possible criminal activity, or a regular pattern of violations, a lawyer might be an asset in these cases as well.

While the aforementioned tips only begin to offer help in understanding how to work with OSHA and MSHA when an inspection takes place, Perlmutter reminded PACA members that there are several ways to work with these two agencies. She stressed that often, the nuances of the process require someone with previous experience in that arena for best results.

For more information on how to prepare for OSHA or MSHA contact Perlmutter online at www.crowell.com/Professionals/Willa-Perlmutter or via e-mail at wbperlmutter@crowell.com.

____________________________________________


Article from Rock Products:

MSHA Inconsistency Voids Guarding Citation in two Cases


"Two recent cases before Federal Mine Safety and Health Commission Administrative Law Judges addressed MSHA's interpretation and application of its guarding standards. Where MSHA failed to give appropriate notice of what was required to serve as an “adequate” guard, the court refused to uphold the citation; in other instances, it rejected MSHA claims of “significant and substantial” violations involving high negligence.

Guarding always has been a controversial subject when it comes to MSHA enforcement, because the concept of what is an “adequate” guard is subjective, and there always is some degree of debate over whether one must guard to simply avoid accidental contact with moving parts, or whether one must guard against intentional stupidity. The latest pair of decisions (one in the aggregates industry, one in coal) provide a bit of guidance on how the judges are applying the law these days.

SCENARIO 1

In Sangravl Company Inc. (ALJ Hodgdon, Nov. 26, 2008), the small Tennessee sand and gravel company received and challenged five citations that carried a proposed total penalty of over $4,000 — several of which involved guards. The company had only four individuals working at the time of inspection, none of whom were in the vicinity of the guards at issue — they were a crane operator, the plant operator, a truck driver and a front-end loader operator. Moreover, the plant was not running on inspection day, due to a shortage of sand.

The first citation issued under 30 CFR 56.14107(a), claimed that a return roller on a conveyor was guarded and that it had moving parts 4 to 5 feet above ground level, and that the roller was 4 to 5 inches in diameter. The cited standard states: “Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and take-up pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” In the citation at issue, there were partial guards on each side of the conveyor roller, but the bottom portion was unguarded. The president of Sangravl Company Inc. testified that the previous inspector approved the existing guarding and that no miners clean up or work under the plant while it is running.

ALJ Hodgdon found the chance of a miner inadvertently contacting the roller — while not impossible — was extremely unlikely. There was no evidence that the roller was worked on while running, and none of the four employees' job assignments were located near the roller.

JUDGE VACATES IRRATIONAL CITATION

The judge vacated the citation because the operator did not have notice that the roller was not properly guarded. He quoted the Commission's 1990 ruling in Ideal Cement Co.: “It is appropriate to evaluate the evidence in light of what a ‘reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have provided in order to meet the protection intended by the standard.’” MSHA had initially recognized that the previous inspector had approved the guard, but thought this warranted only a reduction from “high” to “moderate” negligence. The judge disagreed, and said that because the previous inspector — a person “familiar with the mining industry and the protective purpose of the standard” had okayed the guard, there was no way for the operator to know that the guarding was inadequate. Therefore, the citation was vacated.

SECOND CITATION ONLY MODIFIED

A second guarding citation in this case was not vacated, but was modified from S&S to non-S&S. This involved a conveyor head pulley that had a portion unguarded 4 to 5 feet above the ground and had protruding bolts that supported the bushing. In analyzing the gravity of the violation, ALJ Hodgdon noted that the agency must establish a violation of a safety standard, a distinct safety hazard contributed to by the violation, a reasonable likelihood that the hazard would result in an injury, and a reasonable likelihood that the injury would be of a reasonably serious nature. The company witnesses testified that employees do not frequent the cited area when the plant is running because water flows over the equipment, and they avoid it in order to stay dry. The judge agreed that because employees would rarely be in proximity, it was unlikely that any contact would occur with moving parts. Therefore, the violation was not S&S. He also rejected MSHA's claim that this was a “high” negligence violation, and he reduced the negligence to “moderate.” A third guarding violation was affirmed as S&S, but the judge again reduced the negligence to “moderate.”

SCENARIO 2

In the coal mine guarding case (where an absent guard was cited under 30 CFR 77.400(a)), ALJ Feldman disagreed with MSHA's claim that the violation was S&S, although he did find that a guard was needed in an area that was infrequently traveled, where the moving part was adjacent to a highwall, and the area was only accessed by a crossover constructed over the beltline. Reference: Process Energy (ALJ, Nov. 17, 2008). The language of the cited standard is not identical to the metal/nonmetal rule, but is the functional equivalent: “Gears; sprockets; chains; drive heads; tail; and takeup pulleys; flywheels; couplings; shafts; saw blades; fan inlets; and similar exposed moving machine parts which may be contacted by persons, and which may cause injury to persons, shall be guarded.”

In affirming a violation, albeit modified, ALJ Feldman reminded the parties that the “controlling case” on guarding violations is the Commission decision in Thompson Brothers Coal Co. (FMSHRC 1984). In that case, the Commission stated:

We find that the most logical construction of the [guarding] standard is that it imports the concepts of reasonable possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness. In related contexts, we have emphasized that the constructions of mandatory safety standards involving miners' behavior cannot ignore the vagaries of human conduct…. Applying this test requires taking into consideration all relevant exposure and injury variables, e.g., accessibility of the machine parts, work areas, ingress and egress, work duties, and as noted, the vagaries of human conduct. Under this approach, citations for inadequate guarding will be resolved on a case-by-case basis.

RUSTY CITATION

The Sangravl case had one other interesting citation at issue — this involved a rusted “H” beam at a screening tower, which MSHA cited under the generic “defects affecting safety” standard (30 CFR 56.14100(b): “Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” This standard is typically cited for mobile equipment hazards (e.g., missing steps or windshield wipers, or malfunctioning lights), or for smaller tools that have problems such as a mushroomed hammer head or a poorly repaired come-along. It is quite unusual to apply this to a structural condition in a mine building.

Here, the inspector alleged there was “significant” rust between two lateral runners on the H beam, which was 15 feet above the ground. A portion of webbing was missing, and the inspector hypothesized that it had been in this condition for about six months. The inspector graded it as “S&S,” speculating that if it continued to rust, it could fall, and that the entire area could collapse, and could knock over an electrical box next to the control house causing an electrocution hazard. In the alternative, he argued that it could strike an employee if one were working underneath when it eventually collapsed.

The judge did affirm application of the “defect” standard to the structural element of the tower, but found it was not S&S because it was unlikely that the control house would collapse or that anyone would be in the area if the beam did eventually fall. Operators should be on notice, however, that this ruling will likely encourage other inspectors to use this “catch-all” standard for building defects in addition to those of tools, machinery or mobile equipment."


AUTHOR INFORMATION

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com


____________________________________________

Court Allows MSHA to Cite Multiple Employers

"The U.S. Court of Appeals for the Fourth Circuit affirmed citations issued to a mine operator for the sins of its contractor. More disturbingly, in the case of Speed Mining Inc. v. FMSHRC, the appeals court held that MSHA had “unreviewable discretion” to cite the mine operator (or owner), the contractor or both in such circumstances. Another U.S. Court of Appeals — for the D.C. Circuit — came to the same conclusion in 2006, in the Twentymile Coal case. Having the new decision affirm the authority of MSHA, and some statements made by the judges that this power is “settled law” will make it far more difficult for production operators to distance themselves from violations over which they have little control and may have no prior knowledge.

SPEED MINING INC.

The Speed Mining Inc. (SMI) case has been in the courts for a while, and the facts presented are worth some consideration. SMI is the owner-operator of an underground coal mine in West Virginia, and it engaged a contractor (Cowin and Co. Inc.) to sink an elevator shaft at the mine. The court found it somewhat significant that, when retaining Cowin, SMI did not check its history of safety violations nor its history concerning employee injuries … and that Cowin's injury rate was four to 10 times higher than the national average over the preceding eight years.

SMI and Cowin's contract gave Cowin “almost complete discretion” to sink the shaft as it saw fit and specifically stated that Cowin “maintained complete control at all times over its employees and any Subcontractors, Vendors or others working under Cowin's supervision.” The contractor also explicitly said that Cowin was responsible for complying with all laws, rules, order and regulations — federal, state and local — applicable to the sinking of the mine shaft.

In August 2004, Cowin began work and MSHA issued four citations to Cowin a month later (but not to SMI). A second independent contractor at SMI's site (American Electrical Inc.) also received citations. SMI only was cited in relation to that contractor for failure to provide hazard training to the electrical contractor's workers. Weeks later, an accident occurred at Cowin's shaft-sinking site, when a crane hoist failed and a six-ton bucket fell near five Cowin employees. No one was seriously injured. In addition, no SMI miners appear to have had any exposure to the hazardous condition.

MSHA MAKES CITATIONS

MSHA cited Cowin for six violations of the agency's safety standards: failure to correct crane defects, failure to adequately train its operator, failure to comply with the MSHA shaft-sinking plan (two citations), failure to remove the crane from service, and failure to do an adequate pre-operational check of the crane. SMI received six citations, nearly identical to those issued to Cowin, except that SMI was charged with a lesser degree of negligence.

SMI contested its citations and, based on the then-precedential ruling by the Commission in Twentymile Coal (which held that MSHA abused its discretion in citing a production operator for contractor's violations), an Administrative Law Judge agreed to vacate SMI's citations. MSHA appealed to the Commission, and the case was stayed because the Twentymile Coal case was pending appeal to the D.C. Circuit of the U.S. Court of Appeals.

In July 2006, the D.C. Circuit held that the Secretary of Labor possessed discretionary authority to “cite owner-operators, their independent contractors, or both for safety violations committed by the independent contractors,” and that the Commission lacked authority to review these discretionary decisions. Subsequently, the Commission remanded SMI's case back to the ALJ, who affirmed all six citations based on the Twentymile ruling. The Commission denied SMI's petition for discretionary review, and its appeal to the Fourth Circuit followed.

SMI'S DEFENSE

SMI made two arguments: (1) The Mine Act bars the Secretary from citing an owner-operator for violations committed by an independent contractor; and, in the alternative, (2) that even if the Secretary had discretionary authority, she abused her discretion in the SMI case. The first argument rested on language in Section 104(a) of the Mine Act, concerning the Secretary's citation power. It states:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator … has violated [the Act], or any mandatory health or safety standard, rule, order or regulation promulgated pursuant to [the Act], he shall, with reasonable promptness, issue a citation to the operator.” [emphasis added]

Since another provision of the Mine Act deems both production operators and independent contractors to be “mine operators” by definition, SMI argued that the use of the definitive article “the” before operator in Section 104(a) indicated that the Secretary only had statutory authority to cite “the operator” that “has violated” the standard. Since Cowin, not SMI, violated the standard and was “the operator,” MSHA lacked authority to cite SMI, it argued.

The Secretary's counsel rebutted that this was a fundamentally flawed interpretation of the statute, and the Fourth Circuit agreed that the Act granted the Secretary discretionary authority to site either the production-operator, the contractor or both for any violations committed by an independent contractor. It also pointed to two early cases: Cyprus Indus. Minerals Co. v. FMSHRC (9th Circuit 1981), and BCOA v. Secretary of the Interior (4th Cir. 1977), which had the same finding under the 1969 Coal Act (prior to the establishment of MSHA).

THE HOLDING

In discussing its holding, the SMI court also noted the strict liability aspect of the Mine Act, which dictates that mine operators can face civil penalties if a violation merely occurs at its mine, regardless of fault. It also stressed that the early BCOA decision held that the owner of a mine may be held “jointly and severally liable for violations committed by” its independent contractor. The Coal Act's provisions, upon which the BCOA court relied, were largely unchanged in the 1977 Mine Act, other than the 1977 law added “independent contractors” expressly to the definition of “mine operator.” The Fourth Circuit also examined the legislative history of the Mine Act and found that the Senate Report stated that the “purpose of [one of the accepted amendments] was to give statutory expression to the doctrine of BCOA.” Other appeals court decisions also were cited, although those basically affirmed citations issued to the mine operator for contractor violations but stopped short of claiming that MSHA's discretion to do so was unreviewable.

The SMI decision stressed it was consistent with the purpose of the Mine Act: protection of the health and safety of miners. Precluding liability for contractor violations would encourage owners to use contractors as a means of insulating themselves from safety regulations, it said, and because owner/operators are in continuous control of mine conditions and are more likely to know federal safety and health requirements. Thus, mine safety would not be encouraged by letting the owner “exonerate itself … merely by establishing a private contractual relationship.” The court held that owner/operators possess ultimate authority over contractors in terms of retaining, supervising and dismissing them, if necessary. The court declined to adopt an interpretation of the Act that “would encourage owner-operators to remain willfully blind to the safety histories of their independent contractors,” which it claimed SMI did in this case.

The court dismissed SMI's alternative argument on abuse of discretion, saying the claim was “unreviewable.” The court did take note of MSHA's “Enforcement Guidelines” on multi-employer citation policy. However, even though SMI argued that these guidelines provided an objective framework to use when considering abuse of discretion, the court pointed out that the guidelines were non-binding and the Secretary was not required to observe them. The court also balked at using a “factual basis” standard of review under vicarious liability tort principles or under a principal/agent theory. It again noted that it concurred with the “joint and several” liability approach taken in the BCOA decision.

IN CONCLUSION

The court said that the decision on which operator to cite for a Mine Act violation rested on a “complicated balancing of a number of factors.” It found that the agency, not the courts, was best equipped to balance these factors and determine its enforcement priorities. In short, the Federal Mine Safety & Health Review Commission — despite being an independent appellate agency — must defer to the Secretary's expertise in its enforcement choices.

Bottom line: Mine operators can expect many more citations in the future arising from contractor actions or equipment defects, when present at their mines. Prequalifying and thoroughly training contractors, and documenting enforcement of safety provisions when it comes to contractor oversight, may help convince MSHA at the outset not to cite the mining company. But if a citation is issued, the operator will be limited to challenging the fact of violation, gravity, negligence and penalty issues … not the propriety of citing the mine operator in lieu of, or in addition to, its contractor."


AUTHOR INFORMATION

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com