Genoa Ingram, Court Street ConsultingJim 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.]
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.
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.
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