Courtesy of La Pine Redi Mix, Inc. and T.M. Sand & Gravel, LLC .......... All rights reserved ~ April 2009
A Resource Blog on MSHA and Above Ground Aggregate Mines
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Thanks for stopping by to take a look! We hope that you will find some useful information as you browse this site. We welcome you as part of this informal group where we can communicate about what is going on in the industry regarding MSHA. Please feel free to leave your comments (but remember that MSHA does read this site too.) To contact us through the phone or email with your stories and concerns, call Cary or Kathy Matthews, at 541-536-1771 or 541-410-4673 (Cary's cell). Our fax number is 541-536-1772. You can email us at: lapineredimixinc@hotmail.com
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We encourage you to join up with your local aggregate association, because there is strength in numbers. If there is not one in your area yet, please consider forming one.
Take care, and remember to be in contact with your state officials to voice your concerns about MSHA. Our tax dollars pay for MSHA, which is under the Department of Labor. Our fine money goes into the general fund, and we cannot afford to keep paying out costly fines on the more and more frequent trivial citations to essentially support government spending. At least that is how I feel about it.
Local aggregate producers had a big win on July 21, 2010, when the House Education and Labor Committee, considering laws designed to overhaul the Mine Safety Health Administration ("MSHA"), voted H.R. 5663 out of committee with a provision that specifically excludes most surface mines from the new Robert C. Byrd Miner Safety and Health Act.
Regulators have been under intense pressure to tighten workplace safety regulations and impose tougher penalties on violators, following several recent and fatal coal mine disasters. Tension has been high between industry and lawmakers, as they seek to strike a balance between addressing workplace safety concerns and imposing costly requirements on contractors in order to encourage workplace safety.
MSHA has broad jurisdiction, ranging from expansive coal mining operations on the East Coast to small, family-owned gravel quarries in Oregon. Although coal mining in West Virginia is dramatically different from surface mine aggregate production in Oregon, local aggregate producers have been subject to the same stringent MSHA regulations.
Local operators and industry associations have been working diligently to educate lawmakers on the dramatic differences between surface and underground coal mining operations. The amendments that were voted out of committee proved that lobbying efforts were successful in demonstrating that regulating these two types of mining operations under the same law would not be practical.
If surface mining had not been excluded from this legislation, operators could have faced stiff civil and criminal penalties of up to $2 million and imprisonment for up to 10 years for violations. This is not to say that legislators will not draft subsequent laws with similar penalties specifically targeting surface mine operations. Local aggregate producers can find some comfort in knowing that for the time being they are excluded from the current draft of the MSHA reform legislation.
Published Summer 2010
This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
In what I would call at the least, an unexpected turnaround in approach, Chairman George Miller, following an NSSGA delegation meeting early yesterday evening, decided by 11:25pm last night to include a carve-out for all mining sectors including aggregates, from his bill. His bill being marked up in the full House Education and Labor Committee today ONLY applies to underground coal and other underground mining with flammable gases. The Committee just adjourned until 2pm when the roll call votes will occur (a presidential signing ceremony drew some of the committee Members away).
Rep. Tom Price (R-GA) opposed the carve-out, asking if it wouldn’t be more fair for any changes to MSHA law to apply to all mining sectors. He was answered by Rep. David Wu (D-OR) who responded that he’d work with Price if Price wanted to include sand and gravel. No other comments supporting Price’s point were made.
This therefore is a significant victory for NSSGA leadership (especially the GA division-S&H Committee Task Force, the S&H Committee and ESH division leadership, some great input by Council of Counsel members and state association partners; the NSSGA staff who brought together the ad-hoc national coalition and have worked tirelessly with NSSGA member “weekend warriors” to exchange inputs back and forth with the also tireless committee staff). Most important, we are grateful for all the critical grassroots and ‘grasstops’ calls from member after member, including non-members’ calls rallied at our request by the state aggregate associations. We’ll you’re your help for similar if not more constituent support in the Senate.
NSSGA has removed from our legislative action center, our Action Alert to oppose the bill as amended by the Chairman’s mark (his amendment in the nature of a substitute). We have not suggested support for the remnant bill (we would defer to the coal industry and NMA on how the amended provisions, which NSSGA has been reacting to and addressing throughout these past weeks/weekends and late evenings/early mornings, impact the underground coal sector).
Commendations and gratitude to the down to earth eloquence and impactful reality check provided in person by our NSSGA member leaders, who also up-ended their schedules yesterday to participate in the last-minute meeting with Chairman Miller: Dave Thomey, Jim Venesky, and Mike Heenan. I am so proud also of Joe Casper and Pam Whitted, of their teammates here in HQ and many many others that deserve our thanks.
I want to assure you, NSSGA never justified our position by defaming or scapegoating coal or any other industry sector.
We based our position that none of this should apply to us, which we reiterated to the Chairman last evening in person and then by letter still later in the evening, to him and to all members on the committee as well as their appropriate staff . To the letter we attached legal analysis of recent changes as well as our hearing statement, our hearing Statement, and language for a legislative approach (special thanks to Mark Savit) to carve us out by targeting the bill’s application to highest risk sector/operations, because:
a) aggregates achieved record safety and health levels in 09: our sector doesn’t deserve to be punished for those remarkable achievements and strong commitment to S&H improvements in future,
b) aggregates operations were not and are not the provocation for the legislation; our risk profile is inherently different from other industries due to the nature of materials sought: our underground stone mines don’t have flammable gases, or combustible dust; our underground stone mines are cavernous and stable vs. tunnels, etc.
c) aggregates businesses coast to coast have been hit hard by the recession; our construction materials relate to the construction industries’ markets, and those industries continue to experience depression-level unemployment;
d) companies whose production is already cut way back, are already experiencing dramatically increased penalties despite record safety and health achievements, and are further deeply concerned by current inconsistent MSHA enforcement. (Among many comments by the NSSGA delegation to the Chairman last evening, I explained that even Joe Main declared a top priority of his is to resolve inconsistent enforcement…that NSSGA was working with MSHA to help identify and clarify ambiguities.) Therefore imposition of such new and far-reaching requirements on already heavily regulated companies so hard hit by recession and regulation, but also who are achieving great progress in S&H, could force some companies to reach a tipping point…risking more job losses etc.
Despite Ranking GOP member Kline (R-MN) remarks in his opening statement that the Republicans want the bill focused on worst offenders, there is no specific roll call vote to show bipartisan support for the carve-out in the Chairman’s mark. Democrats on the Committee have thus far have opposed GOP attempts to remove OSHA from the bill.
We will issue a press release after the Committee completes its voting.
Best regards and congratulations on your leadership, Joy
On July 13, 2010, the Dept. of Labor began holding hearings on HR 5663. On July 21, 2010, the bill was voted on. One important thing decided was that the new changes apply only to underground coal mines. Metal/Non-Metal and surface mines were excluded.
The ranking minority member of MSHA’s oversight committee in the Senate has linked staffing issues at the Agency with recently uncovered training and enforcement program problems and suggested “deficiencies” in staff, training or enforcement may have played a role in the Upper Big Branch-South (UBB) mine disaster.
Commenting that he was “very concerned about management issues” at MSHA, Sen. Mike Enzi (R-WY) said he believed some of the problems may be associated with a “significant number of senior management positions in the career ranks” being either vacant or staffed by acting personnel.
Enzi, who sits on the Health, Education, Labor and Pensions Committee, expressed his views in a two-page letter to Labor Secretary Hilda Solis Wednesday.
Enzi noted that, at the time of the UBB disaster April 5, at least six senior positions were vacant or filled by acting staff, including the Deputy Administrator for Coal and the Coal Division’s Accident Investigation unit supervisor. “With accident investigations involving multiple fatalities ongoing, including that for Upper Big Branch, it is certainly not helpful that there is no permanent supervisor,” Enzi said.
Enzi also noted that it appeared as though “the entire leadership of the Metal/Non-Metal Division is transitory,” while persons in acting status fill jobs as head of Technical Support and the Solicitor’s Office. Referring to all the staffing positions, Enzi said, “These positions exist so that the Department is able to provide critically important leadership, support and oversight of its field inspection personnel.”
Enzi’s letter included an attachment that consisted of MSHA responses to staffing questions senators raised after a hearing in April. MSHA said the Deputy Coal Administrator position has been vacant since November 2008, but is currently held on an acting basis by Charles J. Thomas. A vacancy announcement for the Senior Executive Service (SES) position ended June 1. Coal’s Accident Investigation supervisory post has been vacant since August 2008, and is currently filled by Terry Bentley. No vacancy announcement has been posted.
As Enzi noted, the situation is even worse in M/NM. Besides the Administrator’s job, an SES position being held now in an acting capacity by Neal Merrifield, four other top jobs in the Division are filled by acting personnel: Deputy Administrator, Mike Hancher; Accident Investigation unit supervisor, Michael Franklin; Chief of Health, Chris Findlay; and Management Office director, Christine Mayhugh.
Merrifield’s position has been vacant since January 2010, the opening has been posted, and MSHA is currently reviewed qualified applicants, MSHA said.
The Acting Director of Tech Support is Linda Zeiler. The SES position has been vacant for a year, and no vacancy announcement has been posted. Heidi Strassler fills the top position in an acting capacity in mine safety and health in the Office of the Solicitor.
In addition, although unmentioned in Enzi’s letter, Michael Schimmenti has stepped in as acting Director of Administration and Management, a position lacking a permanent director since February 2009. A panel is currently reviewing applicants for the SES position, MSHA said in its response to lawmakers. Other top-level acting positions include Pete Montali in the Office of Accountability and Tom Kessler in Educational Policy and Development.
In addition, the crucial No. 3 job at the Agency, Deputy Assistant Secretary for Operations, also remains unfilled since the position was vacated by Mike Davis April 30. Jeff Duncan fills in as acting Chief of Staff. “[T]he agency’s short staffing is an issue the Committee has to review,” Enzi said.
Linkage to Critical Reviews
Enzi suggested the staffing issues may be linked to two recent reports by the Labor Department’s Inspector General (IG) critical of inspector training and the management of the Agency’s pattern of violation (POV) enforcement weapon. He also suggested a possible linkage with UBB. He asked Solis to direct the internal review team investigating MSHA’s role in the tragedy “to consider whether any of these deficiencies may have played a role in MSHA”s inability to detect or prevent the problems that led to the tragedy at Upper Big Branch.”
The training audit, released in March, revealed that 56% of 102 inspectors the audit team interviewed had not completed MSHA’s required training during the fiscal year 2006-07 training cycle, and that the Agency lacked controls to track and assure completion of such training.
Preliminary findings from an audit of the POV program, released last week, found that the Agency had dropped nine West Virginia coal mines from its potential POV list in March 2009 due to “resource constraints.” The audit was requested by several lawmakers after Sharpe’s Point pointed out that UBB had met MSHA’s criteria for inclusion on the potential POV list during the fall 2009 cycle. MSHA agreed, but attributed the mine’s exclusion to a “computer glitch,” a determination that aroused lawmakers’ concern.
The senator called on Solis to commit to remedying the training issues and to fill the empty staff positions with qualified career personnel. He asked for an update on the current staffing situation and monthly status reports.
Enzi also raised concern about “MSHA’s overall priorities” in light of the staffing, training and enforcement matters. He noted that MSHA, in hearings and Capitol Hill staff briefings, had suggested it was developing a list of recommended legislative changes. “While I appreciate the input,” Enzi told Solis, “I believe MSHA should currently be focusing on fulfilling its existing obligations using its existing authority . . .”
On Tuesday, the House Committee on Education and Labor released a 70-page mine reform bill that appeared to include many of the legislative priorities the Agency is seeking.
Copyright 2010, Sharpe Media, LLC. All Rights Reserved.
The Small Mine Office of MSHA will be providing a workshop geared toward improving contractor safety and compliance at mine sites. Please pass the attached information on to your contractors and encourage them to enroll in the workshop on August 31st in Wilsonville, Oregon at the Associated General Contractors building. If your mine would like a compliance visit from the Small Mine Office, respond to this email and I will give you a call to schedule an appointment.
Thank you,
Evan Church
MSHA-SMO
1815 14th Street, S.E. Albany, OR 97321 Telephone: (541) 270-4878
CongressionalDemocrats Introduce Partisan Mine Safety Legislation; Bill Would Lump Aggregates Operations In With Coal Mine
- Plan To Rush The Bill Through The House Before End Of July -
Partisan mine safety legislation entitled the "Miner Safety and Health Act of 2010," H.R. 5663, was introduced on July 1 by House Education and Labor Committee Chairman George Miller (D-CA) and 17 Democratic co-sponsors (see below for complete list.) This bill makes no distinction between aggregates and the coal industry, posing a significant threat to our industry, which has shown a consistently improving safety record and a strong commitment to the safety of our employees.
Companion legislation from Senate Health, Education, Labor and Pensions (HELP) Committee Chairman Tom Harkin (D-IA), Senators Patty Murray (D-WA) and Jay Rockefeller (D-WV) is anticipated. Senate HELP Committee members Mike Enzi (R-WY) and Johnny Isakson (R-GA) issued a statement protesting that mine safety, traditionally a bipartisan goal, has become partisan with Republicans shut out of discussions.
The House Education and Labor Committee plans a July 13 hearing on the legislation and a July 15 markup of the bill. This indicates the intent to rush this to a House floor vote sometime the following week before the House leaves for the August congressional recess.
BACKGROUND:
Following the tragic coal mine disaster in West Virginia on April 5th, the Executive Branch response, led by President Obama, has been that accountability is needed of both mine operators and the government. The president has stated that he looks forward to a full investigation of the disaster and (recognizing the pointed criticism that's been leveled at MSHA) he wants a review of the agency's operations. Click for full text here.
On Capitol Hill, both the House and Senate held hearings on mine safety pursuant to the West Virginia tragedy and NSSGA submitted statements for the record. NSSGA continues to meet with members of Congress and has been engaged in other efforts to impress upon them the differences between coal and aggregates production.
Preliminary review of the "discussion draft" of this bill suggests it is wrong-headed legislation in many ways - so much so that, despite all sympathies that we share for the victims of the West Virginia coal mine disaster and their families, this bill must not be enacted into law in its current form. It is clear that this sweeping measure would, if enacted, pose a substantial threat to aggregates operators that could close facilities, bankrupt companies and even send corporate officers to jail. While the measure was described in benign terms as targeting "recidivist offenders" of mine safety rules, this bill as introduced will hit alloperators very hard.
Among the most serious provisions are the following:
Overhaul of the pattern of violations to clarify ambiguity and to ensure that the nation's most dangerous mine operations improve safety dramatically is laudable, but the pattern system contained in this bill is vague, penalties are doubled while a mine is on pattern status; the language states that - once a mine is placed on pattern - the entire mine would be shut down until it complies with an MSHA remediation order.
The expansion of the definition of Significant and Substantial (S&S) to be applicable "if there is a reasonable possibility that such violation could result in injury, illness, or death" eliminates the requirement that an S&S violation be of a "reasonably serious nature" and could render most violations as warranting S&S classification.
Increases in maximum criminal and civil penalties, e.g., maximum civil penalty for S&S increases to $150,000.
Reduces the threshold for criminal liability from "willful" to "knowing;" this is not defined and a first violation is now a felony; advance notice of inspections would become a felony.
Charges pre-judgment interest (rather than escrow payments) for challenged citations.
Provides for injunctive relief allowing the Secretary of Labor to close a facility if he or she determines there is "a course of conduct that in the judgment of the Secretary constitutes a continuing hazard to the Health or Safety of miners, including violations of this Act or of mandatory Health and Safety standards or regulations under this Act."
Expands Section 110(c) provisions dealing with personal liability to any officers, directors and agents of the company.
TAKE ACTION:
Visit NSSGA's Legislative Action Center and find out how you can connect with your members of Congress at their state and district offices!
Please make every effort possible to meet with or call your members of Congress during the Fourth of July recess as this legislation is likely to reach the House floor quickly. Tell them:
"One size does not fit all" when it comes to mine safety;
The aggregates industry has a decade's worth of demonstrated commitment to safety;
The industry has a very good safety record;
Dramatic increases in penalty assessments just four years after passage of the MINER Act will likely have the effect of under-cutting work towards safety in the workplace; and
The additional regulatory burdens requiring a focus on items that won't necessarily improve safety might actually make operations less safe, not more, for our industry's employees.
On April 8, Past NSSGA Chairman Louis Griesemer of Springfield Underground was interviewed by his local NBC News affiliate and he did an exemplary job of stating the aggregates industry's case effectively and convincingly. Please click on the following link to view Louis' interview at http://www.ky3.com/news/local/90317357.html.
NATIONAL STONE, SAND & GRAVEL ASSOCIATION FACT SHEET
How Underground Aggregates (Stone) Mines Differ from Other Underground Mines
NOTE: Of the more than 10,000 aggregates facilities nationwide, only about one percent operate underground.
Extracted aggregate product is non-combustible and non-flammable;
No flammable gases such as methane are present;
Most underground aggregate facilities are only a few hundred feet deep;
The stable geologic formations result in a minimized need for additional roof supports;
MSHA-approved (permissible) equipment is not required in stone facilities such that automobiles, haul trucks and loaders can be used;
Extraction methods create large open spaces for easy access by oversized mobile equipment;
Large mine openings accommodate emergency equipment used by outside emergency services;
Increased ventilation due to large open spaces and different geology eliminates combustible dust potential;
No rail man-ways or vertical man-lifts are needed to transport employees to/from working face of mine; standard modes of wheeled transportation apply
Emergency escape and access is easier because of larger spaces in facility;
Minimal need for certified mine rescue teams because local fire departments, or emergency services, are able to respond;
Due to size of large open spaces, mining methods do not require remote-controlled operation of mining equipment;
Mechanical mine ventilation usually not required or is minimal; natural ventilation works well.
List of House Co-Sponsors of H.R. 5663 - "Miner Safety and Health Act of 2010"
First Glimpse of Mine Safety Bill Discussion Draft Poses Challenge
After initial review of the discussion draft of Mine Safety legislation unveiled Tuesday in the House Committee on Education and Labor, it is clear that this wide-ranging measure would, if enacted, pose substantial challenges to aggregates operators. NSSGA has learned that a Committeehearing will be held shortly after the July 4th recess. Following that, a mark-up (or vote) will be held, and the bill could proceed to the House floor as early as late July. While the measure was described as targeting recidivist offenders of mine safety rules….this draft bill looks like it will hit all operators very hard.
Among the most serious provisions are the following:
- Overhaul of the pattern of violations to clarify ambiguity and to ensure that the nation’s most dangerous mine operations improve safety dramatically but pattern system is vague, penalties are doubled while mine is on pattern status; the language states that – once a mine is placed on pattern – the entire mine would be shut down until it complies with an MSHA remediation order.
- Extension of subpoena power to “any of the functions under this Act;” no criteria or limitations for use of subpoena power.
- Expansion of the definition of S&S to apply “if there is a reasonable possibility that such violation could result in injury, illness, or death;” this eliminates the requirement that an S&S violation be of a “reasonably serious nature;” this could render most violations as warranting S&S classification.
- General prohibition that attorneys used by operators for defense against alleged violations from being used by operator company employees, as well.
- Requirement that operators include contractors in injury and illness reports.
- Increases in maximum criminal and civil penalties, e.g., maximum civil penalty for S&S increases to $150,000.
- Reduction in the threshold for criminal liability from “willful” to “knowing;” this is not defined, first violation is now a felony, advance notice of inspections would be become a felony.
- Increases MSHA’s accountability by requiring an independent investigation of accidents in which three or more miners die; also it would require pre-shift reviews of conditions and communications to ensure that appropriate safety information is transmitted.
- Increases in penalties for retaliation against whistleblowers.
- Charge of pre-judgment interest (rather than escrow payments) for challenged citations.
- Provision of injunctive relief for a “continuing hazard.”
While NSSGA looks to soon provide further reporting and analysis of the potential impacts of the bill, we also welcome any comments or technical analysis that individual members would like to share as soon as possible. I can be reached at (703) 526-1074 / jcasper@nssga.org. However, in the wake of the April 5 coal disaster that spawned this action, it’s difficult to envision a way in which this vehicle could foster further improvements in aggregates industry worker safety and health.
Welcome to this website. It is desined as an informational and training tool for MSHA Inspections.
This website is provided by Cary and Kathy Matthews of La Pine Redi Mix, Inc./T.M. Sand & Gravel, LLC. It is for informational purposes ONLY. It is intended to help us all keep a focus on workplace safety and to be prepared for our next MSHA inspection. This site is not sponsored, and the information that has been posted was chosen for educational purposes. If you have information that you would like to see on here, please email us at: lapineredimixinc@hotmail.com or call us at: 541-536-1771 or 541-410-4673. Our address is: La Pine Redi Mix, Inc., P.O. Box 632, La Pine OR 97739, and our fax is: 541-536-1772.
"Vote Smart" Link to Writing to Your Congressmen and Senators and to their voting records:
EXTREMELY IMPORTANT: 15 Minute Rule and Phone Number:
Remember: You have 15 minutes to call MSHA in the event of a death or other critical accident that occurs on your mine site. Failure to do so results in severe fines. Call 1-800-746-1553 to report any of the following:
* Hazardous conditions at a mine to MSHA
* Imminent danger hazardous conditions
* For the Mine Maps Hotline, Impoundments Hotline, and Abandoned Mines
N-Compliance Safety Services, Inc. Kim Redding 2949 S. Jiovanni Ave. Meridian, ID 83642 (360) 870-2371 Email: redding1562@msn.com
Kim Redding is the owner/operater of N-Compliance, a safety and health consulting service providing advice, training, and on-the-job assistance to companies.
Kim is a former MSHA inspector who provides consultation on MSHA compliance to quarry owners and managers throughout the Northwest. Kim has over 20 years experience in mining and construction, with private industry and state and federal agencies. He also has long-term experience in underground mining as well as surface, metal and non-metallic mines. Kim is experienced with helping mills and plants that process construction materials, including cement, aggregate, asphalt and concrete.
