Meeting Notes of OIAA's Meeting with Adele Abrams:

Adele Abrams, P.C.
OIAA President, Mary McNatt
OIAA Secretary/Treasurer.
Kellie Ramar

Kathy Matthews’ notes on the three hour meeting with Adele Abrams, P.C., OIAA, and other interested parties. I took these notes as accurately as I could, but am not a lawyer and am not Adele. Please clarify with Adele anything in question in this report.

Oregon Independent Aggregate Association was proud to have Adele Abrams, P.C. speak at their event on Monday, March 8th at The Red Lion Inn in Salem, Oregon. Over 50 people turned out for the early morning meeting to be informed and in some cases, entertained by Adele, as she shared information about MSHA from an industry attorney’s standpoint.

Ms. Abrams is uniquely qualified, as she spent over 20 years in the construction field prior to becoming an attorney. She also was in charge of Government Affairs with the National Stone Sand and Gravel Association and at this time is the only Mine Safety Official currently practicing law. Adele has her own law firm in Maryland, employing six other attorneys.

Ms. Abrams presented two PowerPoint presentations and gave plenty of time for question and answer periods throughout her presentation. The first presentation was “Rules to Live By” and the second was “Legal and Regulatory Requirements”.

Ms. Abrams began by telling us she truly believes that “safety is paramount”, and that some MSHA citations are not legitimate. A discussion with the audience brought out the following information:

There are now quotas for inspectors to meet in writing mine citations. Some districts are requiring 4 citations per visit. This was put in as a policy, so that it would not have to go through rulemaking and have input from miners. Mine operators are noticing that if an inspector leaves without writing a citation, a MSHA supervisor and an inspector newer to MSHA will come out and re-inspect their operation, making sure that citations are indeed written. The mine operator will be audited, and there are no statute of limitations on how far back MSHA can go back in their audit procedure.

Some MSHA field offices actually have a “Wall of Shame”, where they do their best to embarrass veteran inspectors who do not write very many citations. These walls of shame include photos of what the inspector “missed”, because MSHA is now stating that there are no safe mines. Individual inspectors are also audited.

Since 2006, when enforcement was increased due to the Sego disaster and because of the Pattern of Violations implementation, operators are fighting their citations more than ever before. There is currently a case backlog of 16,000. To hear these cases, there were only 11 administrative law judges in the country (with the new budget, 2 more have recently been added). At the current rate of processing, it would take 10 years for all of these cases to be decided upon. Joe Main, the head of MSHA, has stated that the mining industry is only playing the system to avoid paying fines. MSHA is not acknowledging that they are the ones writing bad citations in the first place.

To speed up the process of clearing all of these case backlogs, MSHA is reinstating their Pre-Penalty Conferencing. A mine operator can submit a memo regarding why a citation is not correct within 10 days. Keep in mind that anything that you write in the memo can be held against you in court. On the top of the memo, make sure to write, “For settlement purposes only: Not Admissible in Court”.

All contested citations go to John Pereza, and if an operator does not agree with the decision, it goes back to John Pereza.

A discussion then followed where everybody in the room had a chance to talk about the craziest and/or most unfair true citations that they had received or had heard about from a friend. Here are examples of some of those citations. Some of these were written as S & S, as high negligence, and with high fines:

You know have to honk your horn each time you begin to move your loader or other piece of equipment forward.

Contractors are getting tickets for not bringing their own stretcher into the mine as they do their work. (The MSHA policy states that there must be a stretcher on the mine premises, but not that everybody carry their own one with them.)

One mine was cited an S & S health hazard for bird droppings on a sidewalk. The mine operator was told that walkways need to be clean enough to eat off of.

One mine was cited for having a 3” icicle hanging near an outside window during a recent snowstorm. In another related snow event, the mine employees were actively using equipment to clear the parking lot when the MSHA inspector showed up and wrote a citation for a snow filled area that they hadn’t gotten cleared yet.

Last year, there was a citation written for an unflushed toilet, and another one for a potato chip wrapper left uncovered in a wastebasket in the employee break room.

An employee had a bucket full of tools as he was working on a piece of equipment and received a citation for that. On a slow winter day, another was sorting out nuts and bolts on the shop floor in between loading trucks and received a citation for having a mess on the floor.

Customers are getting cited for parking their pick ups on the property on flat ground, near the office, for not chocking their tires.

Boxed in return rollers are also citation grabbers, even though MSHA’s policy and trainings clearly state that the rollers need to be guarded against accidental, non-intentional or inadvertent contact. Inspectors have been known to duck under and wrap their arm around inside the guarded machinery … where nobody would even think of going there, especially when it is turned on!

A worker was asked to keep welding for an hour for a 15 minute welding job so that the inspector could take a sample of the welding fumes. Adele asserted that MSHA cannot tell your workers what to do and how to work. If they want to take a sample of something, it has to be in line with what the employee is already doing that day. Adele recommends that operators get the training for taking samples themselves and take their own samples along side the MSHA inspector.

MSHA is currently focusing on sampling for dangerous particulates and fall protection. The fall protection is being addressed even on 3’ platforms, and operators are being cited for no railings on low platforms. Citations are being given for no 3 point contact for a 6’ man standing on a 3’ platform.

Adele warns about modifying manufactures equipment, as MSHA is telling operators to do. If you are redesigning something, she says to get it approved by an engineer.

Miners are being cited more frequently for “High Negligence” and this is so it makes it easier for MSHA to prove a pattern of violations so that our fines will increase dramatically.

Pattern of Violations (POS)

Pattern of Violations was put on the books in 1977 but was rarely used by MSHA. It was activated when the Sego Mine disaster took place a few years ago. MSHA is able to use the same violations or similar violations and then write several separate citations. If an operator gets too many tickets during a certain time frame then your organization may be eligible for POV, and this is a bad thing.

If you receive a Pattern of Violation letter, get a lawyer immediately! Meet with your District Manager and do what they ask you to do. Close down every piece of equipment that you have until MSHA clears you and you have no S & S citations.

MSHA is now about enforcement. They will go on “fishing expeditions” and try to get into all of your documents, even if they are none of their business. They will use anything they find in these other documents to hold against you, in court, if it come to that. Anything you say, at any time (even if you run into an inspector at the grocery store) can be used against you.

However, the search authority of MSHA is not a power without limits, as much as they want us to believe that. The inspector may tell you, “I need all of your incident reports within 10 minutes or I will close you down.” To this, operators need to reply, “Please give me a list of the things that you need, and I will hand it over to my attorney and get back to you.” Adele said to make MSHA carry their own burden of proof … make them prove their case. Don’t do it for them.

“Rules to Live By”

Beginning on March 15, 2010, MSHA will begin implementing their “Rules to Live By” program. MSHA took a look at the most common causes of miner deaths. They are trying to prevent more deaths by noting pointing out what is the most likely cause for fatality. If something can be called high negligence, even with no actual injury occurring, the mine operator can be fined $85,000 or more. The top 20 citations given out each year do not necessarily correlate with the actual Rules to Live By program.

MSHA's Rules to Live By Focus and H.R. 2768:
This inspection season, MSHA will be focusing on air and noise contamination. Learn as much as you can about these requirements, and fix such hazards at your site.

Other focuses for this year include the following areas, and tickets are being written in these areas:

56.9101 - Operating Speeds and Control of Equipment
56.12017 - Work on Power Circuits
56.14101 (a) - Brake Performance
56.14105 - Procedures During Repairs or Maintenance
56.14130 (g) & 56.1413 (a) - Seat Belt Use
56.14205 - Machinery, Equipment, & Tools Used Beyond Design
56.14207 - Parking Procedures for Unattended Equipment
56.15005 - Safety Belts and Lines
56.16002 - Bins, Hoppers, Silos, Tanks and Surge Piles
56.20011 - Barricades and Warning Signs
57.3360 - Use of Ground Support
Also: Staying Clear of Suspended Loads


This is off of my MSHA Blog, not from the meeting, but it might come in helpful to somebody:

Link to H.R. 2768: Supplemental Mine Improvement & New Emergency Responsibility Act of 2007 ---not brand new info, but it seems that this is what the enforcement focus currently is based on: http://www.cbo.gov/ftpdocs/88xx/doc8817/hr2768.pdf

Adele walked us through the “Rules to Live By” program.

1) Operating speeds. Have them posted. There is some talk about solar lighting for night driving, in case the electricity goes out.

2) Power circuits. Do everything they say to do, this one is self-explanatory and is for safety reasons.

3) Brake Performance. Find/develop your own test area and make MSHA use it. Test your parking brakes on the different grades at your site. Remember to chock your vehicles.

Everybody must do a pre-shift walk around every time somebody new uses the loader or other equipment. Make sure that you make a visual inspection of things like cracked windshields and broken steps. If you have a piece of equipment that you are not using, but is still in good working order, place this memo on it: “Out-of-service until it has a pre-shift inspection.”

Remember this: MSHA’s “103A” - MSHA is not allowed to make me deviate from my workday.

4) Procedures During Maintenance and Repair. This is very valid; do what they say for safety’s sake.

5) Safety Belts and Lines. If a manager does not wear a seatbelt this is considered to be a 104 D unwarrantable failure, and could, under special assessment, be deemed a $220,000 fine. A manager can now be anybody: an hourly employee, anybody who does a walk-around inspection, a trainer, a foreman, a blaster in charge.

Make sure all seatbelts are of the highest quality and in very good shape. Manufacturer recommendations should be looked into.

Danger of falling is now down to 2 feet.

6) Parking for unattended vehicles. Employees, customers, chocking.

7) Staying clear of suspended loads. Even 22” off the ground counts, and huge tickets are being given for this.

8) Barricades and Warning Signs. Heat, acids, dust, noise, radiation and imperceptible dangers. Place warning signs on all of these, though the imperceptible dangers is kind of tricky to define. The MSHA website has 11 pages of regulations regarding this rule to live by, with many links … over 300 pages of reading.


Adele said for us to read all of the recommendations. The new inspectors are being trained on these recommendations and therefore MSHA is slipping in new rules. When Joe Main was asked about getting copies of the training materials, he said they are not done writing them yet.

She said to be very, very careful about modifying everything that MSHA tells us to, because the manufacturer may no longer guarantee their equipment if we begin altering their designs.

She said to be very careful about grades on our sites. A 10% grade is okay, but do not go over 15%.

Asphalt: running material through screens is now considered mineral milling.

Maintenance Shops … MSHA is trying to get jurisdiction over our shops. FIGHT THOSE!!!

Tarping trucks. This is also effecting your contractors. If MSHA is requiring you to install a designed platform for a tarping station, please let Adele know about it. MSHA is trying to slip this through by illegal rulemaking.

Return idlers … there are 11 pages on this too, on the MSHA website.

“Legal and Regulatory Requirements”

MSHA is for enforcement. You must manage your own safety.

MSHA has NO statute of limitations.

Regulations (30 CFR Parts 1-199) are mandatory. A policy is information and is not binding.

Any of the following can be held against you in court if you let MSHA read information that they are not privy too:

a) Near miss accident reports
b) Safety meeting notes and information
c) Workers Compensation information
d) All internal company emails

MSHA fines are now up to $220,000 for flagrant violations. A flagrant violation is something that is: reasonably likely to occur, permanently disabling and something that is disregarded.

When receiving a big citation do this: In your own handwriting, on top of a citation: “I protest and request that you, the inspector, put this in your notes.” File a contest to judge; if you don’t do those two things, you are waiving your rights.

MSHA must have jurisdiction before they can cite you.

A standard must apply to the cited employer.

MSHA must prove that the standard’s requirements were not met.
MSHA has strict liability statute and no affirmative defenses.

Agency makes negligence and gravity findings.

Employee must have notice, the standard cannot be overly vague.

Personal Penalties - Section 110C

MSHA can assess personal penalties, felonies that can be up to 5 years in prison. A felony also means that you can no longer have a firearm, or even go hunting. And, the fines for these civil penalties can be up to $70,000 per citiation.

Each citation that is specially assessed and involves a corporation or LLC is reviewed for section 110C action.

An “agent” is somebody with authority to direct the workforce or to carry out management responsibility. An agent can be a salaried position or, since June 2009 an hourly employee. Check out 56.18002

Special Investigations

104D - A case cannot be settled until you know the outcome or a special investigator can come and get an investigation started.

You are not required to speak to a special investigator, nor are your employees. Nothing is ever off the record with MSHA. You do not have to speak to them; get a lawyer. Tell your employees that you will get them a lawyer if MSHA ever comes around to speak to them, that the company will pay for lawyer fees. MSHA will act like they are your friend, but will put people in jail if they want to.

There are actually people … miners and operators who are getting probation, some prison time and who are now felons because they made unintentional errors on paperwork. This is a huge deal. Fines can be as high as $250,000 per violation for individuals and $500,000 per violation for corporations.

You will never get a Miranda warning from MSHA.
The best thing you can say is, “I really can’t say.”
Be quiet. Do not admit guilt.
You are not required to give a statement during any inspections or investigations, and you don’t get Miranda warnings or 5th Amendment.

Prepare for the Inspection

Audit training records
Injury/Illness reports
Workplace Exam/Equipment records
Other mandatory records and certifications
Pre-shift - check all the defects and tag “out of service” for any equipment you are not actually going to use that day.

During the Inspection

Accompany the inspector around your site.
Do not take pictures of stuff that isn’t in your favor
Do take pictures of their weird pictures
Keep quite. Do not argue, do not mutter bad things under your breath or threaten the inspector.
Make sure you have really good housekeeping.
Take notes on all of the inspectors statements.
Look up the notes that MSHA has made on your past inspections.
Don’t give them tape measures or other tools.
Don’t answer questions on distance (if the inspector says, hey, how far away do you think we are from that pond?)
Fix stuff that you need to fix, but don’t admit wrongdoing
Don’t be audio taped!
Don’t argue with the inspector
Listen, don’t talk
Ask if they see any violations
Don’t challenge the inspector

At Closeout

Don’t agree with anything that is a violation
Say, thank you, we will review with counsel and see if any of this will be contested.
Ask for an extended abatement right then and there.

Adele L. Abrams,

Esquire, CMSP, REA

www.constructiondisputes-cdrs.com/Adele%20Abrams.htm

"Adele L. Abrams, Esq., CMSP, REA, is recognized as a national expert on matters of construction and mining law and occupational/mine safety and health. She is both a practicing attorney and a trained mediator, with extensive experience handling court-referred and private mediation cases during her decade in private practice. She is both a Certified Mine Safety Professional and a Registered Environmental Attorney. She is admitted to practice in Maryland, the District of Columbia.

Adele has 20 years experience in the construction field, working first as a staff member of the American Road and Transportation Builders Association, and then as director of government affairs for the National Stone Association (representing producers of construction materials). She is past president of the Construction Writers Association and regularly writes columns on legal, employment and safety issues for construction, mining and general interest magazines. In 2004, she was a co-author of the American Society of Safety Engineers’ textbook, Construction Safety Management and Engineering. She has also contributed sections to other books on mining law and occupational safety and health."