Okay, here is some exciting news! A group of associations have joined forces to create a brand new website named MSHA Enforcement Alerts.
Thanks to the Iowa Producers Assoc., the Illinois Association of Aggregate Producers, the Missouri Limestone Producers Association and the Ohio Aggregates and Industrial Mineral Association there is more very important information online about dealing with MSHA. One of the many things this site offers is keeping track of the MSHA citations issued.
To check it out, here is the link:
http://www.mshaenforcementalerts.com/index.php
Members of those groups and other interested parties met with Joe Main (Assistant Secretary of Labor for MSHA) and Neil Merrifield (MSHA Administrator M/NM) last month in Illinois. Their meeting sounds very familiar to the one with Mr. Merrifield and OIAA in Oregon last summer. What follows are excerpts from the Illinois Association of Aggregate Producers (IAAP) newsletter. Here is the link to their website: Illinois Association of Aggregate Producers. Following the IAAP excerpt are notes from the July 15, 2009 in Salem, Oregon between OIAA, Neil Merrifield and Art Ellis.
February 17, 2010:
"Joe Main opened the meeting by stating his desire to ensure information was flowing from MSHA to mine operators and back again in order to reduce injuries and fatalities. Acknowledging the challenges faced by MSHA and mine operators, Main said the agency has been conducting more inspections and issuing higher penalties as a result of the MINER Act in 2007, thereby resulting in a large number of contested citations. He understood that some of these citations can be attributed to his agency's inconsistent interpretation of regulations, something MSHA must work to correct. He explained MSHA is experiencing 'growing pains' as new inspectors are hired and new legislation is implemented but is committed to more training for inspectors and their supervisors to address these issues.
Understanding industry's concerns is on of his top priorities, Main told our group. Prior to our meeting, Joe Main had asked the NSSGA and state associations for input regarding: unclear areas of MSHA regulation or guidance, the effectiveness of the MSHA Small Mines Office, and ways to reduce the Federal Mine Safety and Health Review Commission's citation contest backlog. He had also requested an opportunity to collaborate with industry to update MSHA's equipment guarding handbook and highwalls video, explore ways to improve dissemination of best practice and compliance assistance information and promote MSHA's new "Rules to Live By" fatality reduction program. As outlined below, members of the IAAP Safety Committee, IAAP staff and representatives of neighboring state aggregate associations readily responded to Main's requests for input by explaining our concerns and then charting a direction for increased collaboration with MSHA in order to address them.
Mining companies have become increasingly concerned about inconsistent and novel interpretations of MSHA rules resulting in citations and increased costs for compliance. Some of the most well known citations are for lack of hand rails on excavators, unguarded springs on screen decks, inadequate guardrails on truck scales and failure to chock wheels on parked trucks. Main and Neil Merrifield listened to mining company representatives explain how citations issued for conditions that are questionable violations of the Mine Safety Act (lack of handrails on excavators or unguarded springs on screen decks) or for violations that are not consistently applied (failure to chock tires on parked trucks or inadequate guardrails on truck scales) fules a lot of the current industry concern about MSHA enforcement activities.
The concern is heightened by MSHA's failure to provide clear guidance to industry outlining the proper way to comply with new regulatory areas. For example, MSHA provides no guidance regarding the height of the handrails its inspectors required to be installed on mobile equipment.
During the meeting, Jim Papenhausen told Main and Merrifield that OSHA regulations do not require handrails but the same equipment on a mine site will be sited. Todd Scott pointed out that rented equipment does not come equipped with tie-off points or handrails. Addressing our concerns, Merrifield acknowledged MSHA is having some trouble getting timely information to all mining companies but has attempted to do so through the NSSGA and other avenues. He also stated that MSHA considers not only handrails but also fall protection tie-off points or use of a platform to stand on when checking fluids as adequately protecting workers from falling off equipment. In response, Papenhousen said MSHA has been unclear about platforms being considered walkways. Main committed MSHA to work with industry to resolve this issue and ensure mining companies know how to comply with the regulation.
Merrifield noted that guarding is the most cited standard each year but stated that he had not heard of citations being issued for unguarded springs on screen decks. Papenhausen pointed out MSHA regulations address guarding of rotating parts so these particular citations seemed to be a unique interpretation mining companies have not witnessed before. Merrifield said MSHA has nearly completed a PowerPoint presentation to address guarding issues and will make it available to us as soon as possible. According to Main, working in conjunction with the IAAP Safety Committee to update the guarding handbook will be a good opportunity to address this issue.
Gary O'toole drew our attention to a citation his company received for failure to chock the tires on a pickup truck parked on level ground, locked and parking brake set. He said his company has spent thousands of dollars purchasing chocks for all vehicles and locations company-wide in response to this citation. Merrifield seemed surprised by this concern and stated that all mines commonly chock wheels on all vehicles whenever parked. This comment in turn perplexed nearly all present at the meeting. Main acknowledged the need for MSHA to settle on a clear standard.
Regarding inconsistent interpretation of MSHA regulations related to inadequate guardrails on truck scales, Merrifield explained that four Commission decisions have confirmed that a truck scale is part of the roadway and thus requires a mid-axle height barrier preventing trucks from falling off. Todd Scott pointed out that for years no citations were issued for these guardrails while several safety experts at the meeting questioned what kind of barriers would be adequate. Merrifield declined to comment on the adequacy of barriers.
Henricksen also expressed concern that MSHA might be considering elimination of the Small Mines Office (SMO) or drastically changing its mission. The SMA provides assistance to small mines (those with five or fewer employees) leading to reduced rates of injury and illness at mine sites and has worked with state associations to conduct safety seminars benefiting small operators. Main spoke highly of the need for a small mines assistance program within MSHA, but noted the agency has identified challenges related to consistency between the advice given to mine operators by the SMO and the inspectors tasked with inspecting that mine in the future.
Contrary to the notion that MSHA wants to eliminate the SMO, Main asked for companies benefiting from the SMO to let him know their success stories so he can get a better idea of what works well and thus bolster the program, eventually expanding it to mines with more than five miners. (If you have a success story regarding your experience with the SMO, please send it along to the IAAP. We will ensure it gets to the appropriate MSHA officials.)
Fortunately, all of these issues are capable of being resolved by a sincere effort, on the part of MSHA, to partner with the aggregates industry, according to Henriksen. He suggested the following actions on the part of MSHA: (1) continuing outreach to identify problem areas; (2) creation of technical working groups to define the conditions of concern and develop agreed upon compliance strategies - or identify rules that should be changed; (3) quality assurance to ensure consistency among MSHA districts; (4) fair notice to the industry of enforcement initiatives and changes to interpretation of regulations; (5) and annual compliance assistance visits to mining companies. Merrifield pointed out that MSHA is engaged in techical working groups organized by the NSSGA, but Hendriksen cautioned against excluding state associations representing companies that are not members of NSSGA. Noting the agency's shortage of personnel, Main said MSHA was willing to try.
MSHA is drowning in a sea of contested violations. Main would like to reduce conferencing of violations between inspectors and mine operators during the inspection and during closeout where inspectors can help mine operators to understand what is being written and why. He also wants conferencing to be more convenient and earlier in the process and is committed to finding ways to make this happen. Henriksen suggested the most effective way to alleviate the Commission citation contest backlog is for MSHA to cease issuing unsound citations (i.e., citations that are inconsistent or not clear violations of the Act); cease issuing citations characterized improperly as S & S violations or as having high negligence; bringing back procedures that facilitate settlement of citations; and partnering with the aggregates industry to reduce citations. Several company representatives complained that nearly all citations are now being written S & S and high negligence. Jason Bish said an MSHA inspector told him to contest all citations perhaps implying that some are not warranted. Main assured that everyone that MSHA has not instituted citation quotas for inspectors and committed to evaluate past citations in an effort to reduce "bad paper" and curb what aggregate miners believe to be an escalation to S & S. Merrifield suggested each mine operator take the opportunity to talk with the supervisory mine inspector at your field office when you do not agree with or understand a citation.
In the spirit of cooperation and fair notice, Merrifield and Main said MSHA will soon be issuing guidance for dust sampling and acknowledged this will be an MSHA initiative in the coming months. MSHA is currently evaluating several proximity detection products that could prevent equipment from crushing or pinching miners and will soon be issuing related standards. MSHA is also working with the Army Corps of Engineers to develop standards governing impoundments (dams and dikes) at mine sites. The new "Rules to Live By" initiative seeks to improve the prevention of fatalities in mining through industry outreach and education followed by enhanced enforcement..."
OIAA Meeting Notes On July 15, 2009:
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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