Oregon Independent Aggregate Association

Serving the Pacific Northwest Aggregate Industry

OIAA: P.O. Box 571, Stayton OR 97383

541-994-8510 (O) ~ 503-769-1834 (Fax) ~ Email: OIAA2008@hotmail.com

OIAA Website Link:http://oregonindependentaggregateassociation.blogspot.com/

As many of you know, my husband Cary and I are members of the Oregon Independent Aggregate Association. In February, OIAA asked me to take over their website and newsletter. I have been working hard to make them informative and easy to read. When you get a chance, please check out both of them. The March 2010 Newsletter just came out on Thursday.

March 2010 Newsletter Link:

www.oraggregate.com/wp-content/uploads/Revised final copy March 2010 Newsletter(1).pdf

Remember, I am happy to post your information on this blog also, if it applies to either MSHA or the aggregate industry. We want to know what everybody is doing, across the nation.

Together, we are making a difference!

Facebook Your Public Officials about MSHA:

Here is an easy way to contact your senators and congressmen: become a fan of their Facebook page and write to them about your MSHA concerns.

I did that this morning, contacting everybody that I could find in the State of Oregon, plus Senator Tom Harkin, who is on the HELPS Committee that deals with MSHA issues. Rumor has it that the mining industry was beat up pretty bad last week at a HELPS Committee hearing. I linked this website and our OIAA website along with my message about the grassroots movement spreading across our nation asking for fairness and oversight.

Write to them and tell our side!

This website has a Facebook site too, but I have not really got it going yet ... still not sure about the ins and outs. It is on my to do list though. Have a great weekend.

Kathy

OIAA's Letter to Oregon Senator Ron Wyden:

Honorable Senator Ron Wyden

Wayne Morse Federal Courthouse

405 E. 8th Ave Ste 2020

Eugene, OR 97401

3-17-2010

Dear Senator,

We are writing this letter to specifically request your immediate assistance regarding enforcement practices and penalty assessments upon small mine operators in Oregon by MSHA through its Western District in Vacaville, CA, and the Albany, OR field office.

MSHA has changed its focus since 2007 from one of miner safety to one of revenue generation, wrapped in the righteous cloak of miner safety. With the passage of the MINER Act, a system that wasn’t broken was “fixed” and citations and the corresponding dollar amounts of those citations was increased.

MSHA is citing and penalizing operators at a record pace and if it continues at this rate operators of all sizes, but specifically small operators, the backbone of America, will be devastated.

We would ask you to do the following to assist us;

1. Reduce the ability of MSHA to assess mine operators high dollar citations. It does not take $50,000 dollars to get the attention of small operators. We get the point with citations that are several hundred dollars.

2. Require MSHA to work with mine operators if there is a condition that is unsafe or a violation of a standard that is citable, allow the operator an appropriate and reasonable amount of time to rectify the situation.

3. Require MSHA to evenly, equitably, and fairly enforce the Mine Act, no more of the “gotcha” tickets or citations for equipment that has been in service for years with no prior history of citation the way it is equipped, or for work practices that have been developed over many years at a specific mine site.

4. Require MSHA to work with mine operators and eliminate the adversarial relationship that it has developed in recent years, the “us versus them” mentality. Citations and fines should be a last resort for MSHA, not the first option.

5. Require MSHA to maintain and enhance the “Small Mines Office” and put real teeth in the ability of the SMO to train and educate mine operators to improve the safety of miners and prevent citations and fines. This should be done through increased staffing and funding for the SMO. No regulatory agency should be permitted to have an aggressive enforcement arm without an equally aggressive education, training and outreach program for those it is regulating.

6. Lobby MSHA’s oversight committee for a congressional hearing and truly investigate these unfair practices against aggregate producers here in the Western District and nationwide.

Senator, we are independent and resilient people however we cannot continue this fight alone. We need your help and the help of your peers, you have the power to change this, listen to our grievances and hold MSHA accountable, require them to justify their conduct towards us. We are not asking for special treatment or a handout only fair, equitable, and just treatment and a hand up. Allow us to live the American dream not drown in a regulation nightmare.

Thank you for your time and consideration.

Respectfully,

OIAA

Oregon Independent Aggregate Association

PO Box 571

Stayton, OR 97383

541-994-8510 phone

503-769-1834 fax

OIAA2008@hotmail.com

Decisions, decisions...

Jim Sharpe, of Sharpe's Point is interviewing mine operators who are thinking about closing their mines or who already have, due to their dealings with MSHA. In the post below this, you will find his contact information. Please let Jim hear your voice for the in depth article that he is writing on this very important subject.

I am not writing an in depth article, I am just the wife of a sand and gravel pit owner who has her own blog, and lots of opinions and thoughts on this very subject. I decided to put those thoughts on here for Jim to use, or to help others understand what it is like trying to dodge the fear, dread and frustration that MSHA brings to us mine owners and operators on a daily basis.

As I meet mine owners, and those with drilling and crushing companies, I notice that most of these people are getting older. The majority of owners that I know are in their 60's. They have been running their businesses for many years; and some inherited their business from their fathers. Many of them probably feel like retiring, and many of them could do just that. Retiring is one thing, but there are some that are wondering if they should just shut down their mines at the same time. Why saddle their kids with a future of dealing with MSHA?

Yesterday was March 15th, the day that "Rules to Live By" was officially implemented and MSHA fines rose once again. We have been told that we can receive fines of $85,000 to $220,000 for everyday things. Not because anybody was hurt, or because they died on our property. Just because. Just because a large government agency has decided that they want power and control and money from us, and over us. We do our very best to conduct business in a safe manner, but that doesn't seem to matter since MSHA has a quota to fulfill. Because the government wants as much money out of us as they can get. The fine money goes into the general fund, which actually does need a boost since our government is spending money like crazy; but that is a different subject. Kind of.

We have been wondering what has happened, and what has hit us since 2006, when there was a horrible disaster in an underground coal mine back east. We were blindsided by the change in MSHA. We tried to make sense of it. We fought our tickets, which ended up jamming up the system with a caseload backlog of around 17,000. We got together and formed associations, and got the ball rolling by informing our elected officials of this huge problem of how we are being treated. We tell anybody who will listen how we are getting fines for 3 guys on a crushing job peeing in the woods. For how our customers can get in trouble and fined for parking their vehicles in front of the office and not chocking their wheels. For an unflushed toilet. For a potato chip wrapper in a break room garbage can with no lid on it. For not honking your horn when moving forward in your loader down in the pit, because some poor delivery lady walked out in front of a vehicle by an office and was killed. For not having a fall protection harness on a 2' foot ramp. For not wearing a hard hat as you take your dogs for a walk down in the gravel pit on a Sunday, when all equipment is shut down for the weekend.

Let's say that you only have a certain amount of money in your company checking account, and are trying to keep the doors open in this uncertain economy. You are a good, above board company and employ several people, provide a service and product to your community, and you pay your federal, state and county taxes. Then, one day, MSHA comes in and gives you a huge fine. The fine is so big that it takes all of your money and you have to close your doors. Will the government lien your property for the rest of the amount owed? Would it have been better if you saw that possibility coming your way, retired with the money you had saved up, and just closed your doors? That is what some people are doing. They are deciding just to stop doing business.

So, lets say that you close your business. Your pit just sits there. With good material that nobody can now use. Your employees lose their jobs. You no longer pay any payroll or other taxes, except for property taxes, to help fund the government. The contractors that used to come into your pit for material have to go somewhere else; if there is anyplace else. Your customers can't get gravel for their driveways anymore, at least from you. Sand and gravel operations are very important to communities. Their products provide the basics of construction: rock, sand, gravel, concrete, septic tanks, etc. None of this is a far fetched scenario, and it makes me so sad as I write this.

Mine owners and other aggregate operators have been through hard times before. We are strong, determined business people and we just keep on going. But it is getting to the point where we feel as if we will lose everything to MSHA's fines someday, forcing us out of business. So, in short, some people are just going when the going is good, for their own survival. If you are one of those people, please contact Jim and tell him your story.

MSHA's behavior is wrong. People need to know that.

Kathy

Request for Information from Jim Sharpe:

Dear Safety & Health Professional -

I am interested in interviewing any mine owner as soon as possible who has decided to close his/her mine, in significant part due to MSHA's actions. The information gleaned from such interviews would form the basis of an article on the subject. Any assistance you can give me in achieving this purpose would be greatly appreciated.

Thanks,

Jim

James Sharpe, CIH
Sharpe Media, LLC
Publisher of Sharpe's Point, The Newsletter on Safety and Health in Mining
4519 34th St. S.
Arlington, VA 22206-1914
703-379-0652 (o)
914-840-0716 (f)
sharpemedia@verizon.net or grosharp@msn.com
www.sharpespoint.com

State of Washington MSHA Training Seminar: March 23, 2010

Guest speakers include James Sharpe of Sharpe's Point and Mark Savit, Attorney, from of Patton-Boggs, plus much more!

Click on the brochure below to enlarge it for easier viewing:

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."

Jim Sharpe's Sample letter your group can send to Congress

From the January 2010 issue of Rock Products Magazine http://rockproducts.com/safety/rock_congress_msha_0110/


"Dear Congress: MSHA Over-Regulating
Jan 1, 2010 12:00 PM, JAMES SHARPE

Article Tools

Aggregates sector officials are calling for relief from the Mine Safety and Health Administration — which many believe has taken enforcement of safety rules too far. An appeal to Congress along the lines of the following letter might be considered.

Dear Congressional Representative:

No one should expect a reward for doing the right thing. But people should not expect punishment either. Unfortunately, in our mining sector today, punishment for doing a good job of safety is what we are getting from the Mine Safety and Health Administration.

Just after the turn of this century, we committed to reducing the injury incidence rate in our mining sector by 50% within five years. Admittedly, we fell short of that ambitious target, but the goal set us inexorably on a path toward zero and produced a declining injury rate in every year during the period. After five years, we set a revised goal of a 10% annual reduction, continuing the downward trend.

The numbers speak for themselves: our injury incidence rate has dropped to 2.62 injuries per 100 workers in 2008 from 4.14 in 2000. In 2009, fewer miners were hurt or killed in our sector than ever before, and a decade from now, there will be fewer fatalities still, if any at all.

We now have a better injury rate than most private sector industries; indeed, better than many agencies of government itself including, we suspect, the very agency that regulates us.

The twisted irony in all this is that while 2009 ended as the best year ever for mine safety, it most likely will be another year of record penalties.

While we expect no special recognition for keeping our employees safe on the job, we also do not expect our achievement to be answered by a numbers-driven agency intent on setting annual records for citations and penalties.

In 2007, the year a new penalty structure took affect that raised fines 108% in metal and nonmetal mines, MSHA wrote 33,824 citations and levied $11.3 million in fines in the aggregates sector alone. The numbers in 2008 were 41,667 citations and $17.9 million, increases of 23% and 58%, respectively.

MSHA raised fines, wrote new regulations and stepped up enforcement after underground coal tragedies occurred in 2006. Those horrible events did not occur in surface coal, metal mining or in the nonmetal mining sector. Yet we have borne a significant measure of the brunt of the agency's backlash. We are unfairly paying the price for events beyond our control.

If times were better, we might not be feeling the pain as acutely. But they aren't. Some mines have shut down altogether while others are on shortened hours because the depressed economy has brought less demand for our product. MSHA is kicking us when we are down.

All miners believe in the need for firm enforcement, but it should be fair too. It is not fair today.
We seek your assistance because we know you have the power to produce change. You can help us by listening to the grievances of your mining constituents, and then asking MSHA to justify its conduct toward them. You can also help bring this festering problem to national attention by lobbying MSHA's oversight committee for a congressional hearing. What you will learn about MSHA enforcement will surprise you.
MSHA's inspectors inflict a thousand little cuts on mine operators each and every workday. The wounds add up to injury massive enough to require an emergency response. We implore you to provide it.

Best Regards,
　

Aggregate Associaton


James Sharp holds a masters degree in environmental health sciences and is certified in the comprehensive practice of industrial hygiene. He has nearly 30 years experience in occupational and environmental health and safety. He can be reached atsharpemedia@verizon.net"

March 15th Possible Consequences:

This one is a "must read" ~
MSHA Unwarrantable Failure Criteria Under Spotlight
by Adele Abrams, in Rock Products.com
http://rockproducts.com/safety/msha_unwarrantable_failure_0210/


Excerpt:

"....The stakes are high, given that Section 104(d) actions can be deemed flagrant violations under the MINER Act (and MSHA policy) if they are categorized as “reasonably likely” to be at least “permanently disabling” and involving either a “high” or “reckless disregard” negligence classification. The maximum penalty for a flagrant violation is $220,000 per citation/order. There are statutory minimum penalties of $2,000 for Section 104(d)(1) actions and $4,000 for Section 104(d)(2) actions. One small company that I represent got socked by MSHA during a routine 2009 inspection with 20 Section 104(d) actions along with many regular citations. Total proposed penalties are more than $400,000."

=========================================

Link to Letter from CALCIMA to Joe Main Regarding Roller Guarding:
http://ocapa.net/uploads/Mainletter__2_.pdf

Thank You!

Wow, there is certainly a grassroots movement going on right now as we work together to hold MSHA responsible as a public agency to treating mine owners and operators with fairness and respect. (Not to mention the thousands of dollars in fines ... and in some cases, our very livelihoods.) I find this very exciting, how we are all working as individuals and as a group to get things done.

I want to thank everybody who sends me news and information to post on this site. You know who you are. I appreciate your help so much. If you have information that you feel is important to share, please let me know.

I also want to thank you readers, who take the time educate yourselves on the issues and then go out and do something about them. If you are not a member of your local aggregate association yet, please go and join it. There is obviously strength in numbers, and in this situation, your vote really does count. Be part of the solution and stand up and be heard!

I also want to thank the inspectors who are appalled about the change in MSHA, and who are trying to be fair to operators while also trying to keep their jobs. Keep up the good work. I know you are stuck in the middle.

~ Kathy

MSHA Compliance

February 23, 2010

CONGRESS HOLDS HEARING ON MSHA CASE BACKLOG

For clients and friends of Jackson Kelly PLLC

Volume 6, Number 3

©2010 Jackson Kelly PLLC

The House Committee on Education and Labor, under Chairman George Miller (D-CA), held a hearing on Tuesday, February 23, 2010, to discuss “Reducing the Growing Backlog of Contested Mine Safety Cases.”

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February 08, 2010

MSHA’s 2011 Budget Justification

For clients and friends of Jackson Kelly PLLC

Volume 6, Number 2

©2010 Jackson Kelly PLLC

There can be few things as dry as a federal agency’s Congressional Budget Justification but the 85 page document that the Mine Safety and Health Administration (“MSHA”) recently released to justify its FY2011 budget submission to Congress has some interesting information for mine operators. The budget submission reflects the agency’s expected emphasis on health issues and impoundments and references the recently-announced enforcement program for priority standards.

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January 29, 2010

NEW MSHA ENFORCEMENT PROGRAM FOR PRIORITY STANDARDS

For clients and friends of Jackson Kelly PLLC

Volume 6, Number 1

©2010 Jackson Kelly PLLC

On January 27, 2010, Joseph A. (Joe) Main, Assistant Secretary of Labor for Mine Safety and Health, and MSHA unveiled an upcoming enforcement program to prevent fatalities within the mining industry. The program will be titled “Prevent Fatalities – Rules to Live By.” MSHA plans to start implementation of the program on March 15, 2010.

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February 06, 2009

A FRESH LOOK AT THE S&S ANALYSIS

For clients and friends of Jackson Kelly PLLC

Volume 5, Number 1

©2009 Jackson Kelly PLLC

The elements of the significant and substantial (“S&S”) analysis are well established. In order to establish an S&S violation, MSHA must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard; (3) a reasonable likelihood that the hazard contributed to will result in injury; and (4) a reasonable likelihood that the injury in question will be of a serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). However, the Federal Mine Safety and Health Review Commission (“Commission”) is sometimes amenable to new arguments addressing each of these elements, and in two recent cases, mine operators prevailed in overcoming the S&S designation for alleged violations of § 75.400.

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Link to Jackson Kelly:
http://safety-health.jacksonkelly.com/congressional-and-state-obbying-and-monitoring/

Feb. 23, 2010 Letter of Complaint to Secretary of Labor Hilda Solis:

Click to enlarge this letter, written last week by eight members of Congress to Sec. of Labor Hilda Solis, asking her to address how MSHA is conducting their business:

Thank you to Jim Sharp for forwarding this information to me. Please check out and support his online industry magazine, Sharpe's Point at @ http://www.sharpespoint.com/portal/

FMSAHRC 2011 Budget Justification:

http://www.fmshrc.gov/

Link to The Federal Mine Safety and Health Review Commison 2011 Budget Justification:
http://www.fmshrc.gov/plans/fy2011justification.pdf

37 pages of easy and riveting reading ... well, maybe not riveting, but it is very interesting indeed. This link explains what the Commission does, and how the system works if you fight your citation. Included are the statistics on how their caseloads have dramatically increased since 2006. Of course, it is a budget justification, so they explain why they need more money and how it will be spent.

Link to 2009 Court Decisions:
http://www.fmshrc.gov/decisions/rcnt-commdecs.html