MSHA Inspections: Preparing Your Small Sand and Gravel Operations (Part 46 Mines) for a Visit

"A Big Win for Aggregate Producers" Article by Katie E. Jeremiah

2010-07-24T08:36:00.000-07:00

A Big Win for Aggregate Producers

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.

This page printed from: http://www.jordanschrader.com/articles/article0383.html

Explanation by NSSGA's President Jennifer Joy Wilson: Underground and Above Ground Mines Separated in New Leglislation:

2010-07-24T08:32:00.000-07:00

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

Jennifer Joy Wilson, President and CEO

National Stone, Sand and Gravel Association

1605 King Street, Alexandria, Virginia 22314

(703) 525-8788 - ph; (703) 525-7782 - fx

www.nssga.org

For actual voting HR 5663 voting records:
HR 5663 Voting Records

Links to Recent Articles on MSHA and Dept. of Labor:

2010-07-22T05:53:00.000-07:00

HR 5663 Voting Details

West Virginia Gazette Blog: Pattern of Violations

MSHA Grant Money Available

Joe Biden/Joe Main: Focus on Workplace Safety

HR 5663 Hearing Info:

2010-07-13T09:11:00.001-07:00

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.

Here is the link to the results:

HR 5663 Votes and Results

Amendment #1 to H.R. 5663 by Mr. Miller (CA)
Passed by voice vote

Amendment # 2 to H.R. 5663 by Mr. Kline (MN)
Defeated 17 to 30 Roll Call #1

Amendment # 3 to H.R. 5663 by Ms. Shea-Porter (NH)
Passed by voice vote

Amendment # 4 to H.R. 5663 by Mrs. McMorris Rodgers (WA)
Defeated 17 to 30 Roll Call #2

Amendment # 5 to H.R. 5663 by Ms. Woolsey (CA)
Passed by voice vote

Amendment # 6 to H.R. 5663 by Mr. Price (GA)
Defeated 17 to 30 Roll Call #3

Amendment # 7 to H.R. 5663 by Mr. Hare (IL)
Passed by voice vote

Amendment # 8 to H.R. 5663 by Ms. Titus (NV)
Passed by voice vote

Before and during the hearing links:

HR 5663 Bill and Summary (proposed)

HR 5663 Hearings

Letter from CWS Against HR5663

CWS Testifys

Thank you to Jim Sharpe from Sharpes Point for the following article:

2010-07-13T09:10:00.001-07:00

Refocus MSHA Priorities, Enzi Tells Solis

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.

Sharpe's Point.com

MSHA SMO Workshop:

2010-07-08T18:56:00.000-07:00

Mine Operators,

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 31^st 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

Fax: (541) 924-8499

Thank you to Genoa Ingram and NSSGA for this important info:

2010-07-04T12:52:00.000-07:00

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 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
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"

Rep Andrews, Robert E. [D-NJ-1]Rep Bishop, Timothy H. [D-NY-1]
Rep Clarke, Yvette D. [D-NY-11]Rep Courtney, Joe [D-CT-2]
Rep Grijalva, Raul M. [D-AZ-7]Rep Hare, Phil [D-IL-17]
Rep Hirono, Mazie K. [D-HI-2]Rep Holt, Rush D. [D-NJ-12]
Rep Kildee, Dale E. [D-MI-5] Rep. Miller, George [D-CA-7]
Rep Mollohan, Alan B. [D-WV-1]Rep Pierluisi, Pedro R. [D-PR]
Rep Rahall, Nick J., II [D-WV-3]Rep Sestak, Joe [D-PA-7]
Rep Shea-Porter, Carol [D-NH-1]Rep Shuler, Heath [D-NC-11]
Rep Sutton, Betty [D-OH-13]Rep Woolsey, Lynn C. [D-CA-6]

2010-07-04T12:49:00.001-07:00

____________________________________________

Sunday, July 4, 2010

New Propsed Legislation Coming Up IMMEDIATELY:

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 Committee hearing will be held shortly after the July 4^th 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.”

- Expansion of Section 110 © provisions dealing with personal liability to any officers, directors and agents of the company.

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.

Joseph S. Casper

Vice President, Safety Services

National Stone, Sand & Gravel Association

1605 King Street

Alexandria, Virginia 22314

(703) 526-1074

(703) 525-7782 (fax)

www.nssga.org

News from MSHA's Neal Merrifield:

2010-06-29T10:53:00.001-07:00

MSHA is taking a number of steps to address consistency related to compliance and policy concerns at Metal/Non-Metal (M/NM) mines. A new section of our website, Compliance and Policy Updates, http://www.msha.gov/SiteIndex/MNMSiteIndex.asp has been established to address compliance and policy issues. To date we have placed two new documents:

1 - “Guarding Conveyor Belts at Metal and Nonmetal Mines”. This guide supplements existing guarding guidance contained in "MSHA's Guide to Equipment Guarding" issued in 2004, and in MSHA’s existing Program Policy Manual. A PowerPoint (.PPT) version of the presentation is attached – please note that explanatory notes are provided for almost every slide. In addition, a link to a .PDF version of the same presentation can be found on MSHA’s website; a link follows: http://www.msha.gov/Accident_Prevention/EquipmentGuardingConveyorBelts2010.pdf

2 - A Program Information Bulletin (PIB) provides information on providing safe means of access, fall prevention, and fall protection to miners operating, conducting maintenance or service activities, or accessing work platforms of self-propelled mobile equipment. A link to its location on MSHA’s website follows: http://www.msha.gov/REGS/COMPLIAN/Pib/2010/pib10-04.asp

Please draw these resources to the attention of other interested parties in the metal and nonmetal mining industry.

We will place additional documents on this site as compliance and policy questions arise. In order to keep up to date on any new postings please sign up for email notification at http://www.msha.gov/subscriptions/subscribe.aspx.

Neal Merrifield

Link to June 2010 Aggregates Manager Srttcle on MSHA Audit:

2010-06-23T06:44:00.000-07:00

June 1, 2010 |

AggBeat

AggBeat: The heat is on MSHA

An audit by the Department of Labor’s Office of the Inspector General reveals that 56 percent of ‘experienced’ journeymen MSHA inspectors aren’t trained properly.

By Tina Grady Barbaccia, News and Digital Editor

http://www.aggman.com/aggbeat-the-heat-is-on-msha/

Citizen Survey Being Considered:

2010-06-22T07:27:00.000-07:00

Oregon Independent Aggregate Association is considering working in collaboration with Washington State University in conducting a citizen survey on MSHA that will include operators from the Pacific Northwest.

The thought here is that if non-biased professionals put together a report that represents the voices of mine owners and operators, drilling and crushing companies, then perhaps two things will happen: a) MSHA will recognize the areas that need improvement and address them and, b) Our government officials will have hard data describing the problems that we are having with MSHA.

WSU recently completed a similar survey for the Washington State Patrol, if you would like to view that link:

Washington State Patrol Citizen Survey http://www.wsp.wa.gov/publications/reports/citizen07.pdf

Please give your input on this idea by calling the OIAA Board Members at the bottom of the page, or emailing us at: OIAA2008@hotmail.com

Thank you!

DJC Article by Katie Jeremiah:

2010-06-22T07:22:00.000-07:00

Aggregate producers, coal mining companies feel the heat of safety enforcement

POSTED: Monday, June 21, 2010 at 09:05 AM PT; DJC: http://djcoregon.com/news/2010/06/21/coal-mining-companies-feel-the-heat-of-safety-enforcement/ BY: Katie Jeremiah

Katie Jeremiah

Regulators are under intense pressure to tighten workplace safety regulations and impose tougher penalties on violators, following several recent fatal coal mine disasters. Tensions are high between industry and lawmakers, as they seek to strike a balance between addressing workplace safety concerns and imposing costly - sometimes economic “death knell” - requirements on contractors in order to encourage workplace safety.

The Mine Safety and Health Administration 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 Pennsylvania is dramatically different from aggregate production in Oregon, local operators are subject to the same stringent MSHA regulations.

But MSHA’s rules offer little guidance to operators. It is impossible to distinguish operational and enforced requirements necessary for compliance in a quarry setting as opposed to subsurface coal mine operations. The lack of specific guidance gives MSHA unfettered discretion to enforce safety rules, which makes citations a near certainty during inspections.

In addition, operators are concerned that the enforcement climate has become too focused on the quantity and gravity of citations, rather than on a cooperative effort to create safer work environments. They have accused MSHA of operating with performance metrics that include secret enforcement quotas. MSHA denies these allegations.

Fatalities continue to occur despite increases in citations and penalties. Recent data compiled by an Oregon industry group suggests that even with the recent surge in citations since 2006, there has not been an effective or measurable redirection in workplace injuries or fatalities.

So, how should mine operators comply?

MSHA’s penalty structure imposes serious consequences on operators with multiple violations, no matter how trivial each citation may be. Operators must be diligent in their efforts to provide safe workplaces, to comply with current MSHA regulations, and to prepare for a tougher enforcement regime. To avoid the severe civil and criminal penalties imposed by current MSHA regulations and to prepare for reform, operators must:

1. Educate workers on MSHA’s “Rules to Live By.” MSHA recently published a new fatality prevention initiative that focuses on 24 frequently cited standards, 13 of which are for metal/nonmetal mining.

2. Study the MSHA handbook series. Recent citations have been issued in Oregon for violations that may not otherwise fall under the “common sense” test. Operators should study the MSHA handb ook series available at www.msha.gov/readroom/handbook/handbook.htm. The handbooks provide specific information that may be used by inspectors to identify MSHA violations in a quarry.

3. Report accidents to MSHA immediately. Operators who do not notify MSHA of an accident that has “reasonable potential to cause death” can face up to $60,000 in penalties. Train workers on the procedures to call for help and contact MSHA in the event of an emergency.

4. Give the inspector documents only upon request and a showing that it is required by law. If an inspector requests records, ask which rule requires the document to be produced. Most records do not have to be produced at the inspection, and a reasonable time is allowed for production of documents to MSHA after the inspection. Some records do not have to be produced at all.

5. Remedy unsafe conditions as soon as they are discovered. Operators face significant penalties for failure to abate a hazard that has been cited by an inspector. Even if a citation is contested, if a subsequent inspection cites the same unsafe conditions, the prior citation will be used to show that the operator was on notice and could provide a basis for an “unwarrantable failure” citation.

6. Don’t argue with the inspector. An argument with an inspector is ineffective and usually detrimental. An inflamed inspector may increase the gravity of a citation. Always remember that anything people say can and will be used against them in court, while silence is not an admission and can never be used against them. Save arguments for the contest of the citation after legal arguments have been organized.

7. Don’t lie. Lying provides MSHA with a basis for criminal prosecution. This extends to oral statements as well as falsified documents.

8. Contest a citation if it is unfounded, no matter how minor the penalty. People have a constitutional right to due process. If there is a valid reason to contest a citation, contest it. Even if the citation involves only a few hundred dollars, it could mean a total mine shutdown if multiple citations are issued over time.

9. Continue educating workers and site visitors on the law. Make sure every person on the site has access to a copy of the MSHA laws, the MSHA Program policy manual, and the MSHA handbook. Moreover, workers should have a thorough understanding of the standards and how they apply to a worksite.

With new MSHA reform in the pipeline, it is important to know the current law and how new legislation will impact operations. If a citation is issued on a work site, contact an attorney to discuss options to avoid significant civil and criminal penalties.

Katie Jeremiah is an attorney in Jordan Schrader Ramis’ Dirt Law practice group. She assists clients in matters involving construction and mining law. Contact her at 503-598-5539 or katie.jeremiah@jordanschrader.com.

Important Info:

2010-06-17T16:13:00.000-07:00

I received this email from Attorney Katie Jeremiah on June 14^th. Thank you, Katie, for this valuable information, and the compliments!

Hi Kathy,

I am an attorney at Jordan Schrader Ramis PC and a partner in a drilling/blasting/crushing company out of Eugene (BJ Equipment Co LLC). After seeing my family business tread through the trials and tribulations of MSHA regulation, I am focusing my practice area on MSHA issues that Oregon quarry operators face.

Your website has come up several times in my research, and I just wanted to introduce myself and share some information that I found today that might be useful to share with the visitors on your website.

The biggest frustration I have seen quarry operators have in recent years is the lack of guidance on specific compliance measures that should be taken. MSHA inspectors show up to a site and seem to arbitrarily issue citations and cite guidelines that no one knew existed.

I ran across some handbooks that are somewhat hidden on MSHA's website but provide extremely detailed information on haul road construction, lunchroom facility rules (such as hand washing stations, covered trash receptacles, changing stations, etc), etc. that I never knew existed aside from speaking with people who were cited for violating the rules. It appears that they may be what the inspectors are supposed to use. I may be the last to know about them, but I have never seen them or heard anyone talk about them.

Here is the link: http://www.msha.gov/READROOM/HANDBOOK/HANDBOOK.HTM

The "PH06-IV-1(1) "Metal and Nonmetal Health Inspection Procedures" within that list has great guidance documents.

There is another one on break rooms and toilet facilities: http://www.msha.gov/READROOM/HANDBOOK/MNMInspChapters/Chapter20.pdf

Thank you for all of the great work on your website!!

-Katie

KATIE JEREMIAH | Attorney
Jordan Schrader Ramis PC | Attorneys at Law, Lake Oswego
Oregon: (503) 598-7070
Direct Dial: (503) 598-5539
Washington: (360) 567-3900
www.jordanschrader.com

MSHA Called Out by Massey:

2010-06-10T06:24:00.001-07:00

Massey claims that MSHA forced them to use inadequate ventilation systems: http://www.publicnewsservice.org/index.php?/content/article/14392-1

"MP Man Arrested at Gunpoint" by Mary Schamehorn, Editor of The Myrle Point Herald:

2010-05-18T17:03:00.000-07:00

"Two men have Francis Schrader at gunpoint."

That was the 9-1-1 call that came in shortly before 10 a.m. last Tuesday.

When an officer from the Myrtle Point Police Department arrived on the scene at 433 Railroad Avenue, it turned out that the "armed subjects" were agents from the U.S. Marshal's office who were arresting the 65-year old man on outstanding warrants.

The arrest involved Schrader's failure to appear after being cited for safety violations at his All Coast Concrete rock pit east of Myrtle Point.

Schrader was taken to federal court in Eugene where he was jailed and later released.

The first person the Herald spoke with, at the court house in Eugene, said originally it was a civil case, but it became a criminal matter when Schrader failed to appear at the show cause hearing.

At his May 4 appearance in federal court, Schrader declined the appointment of counsel, telling the court that he would represent himself.

Reading from the court docket, a spokesman for the U.S. District Clerk's office said "the parties were ordered to confer regarding resolution of proceedings. Following conferral, government agrees to provide defendant with copies of the citations and court-ordered conditions which would allow him to continue to mining (for rock)."

A civil case was filed in January for safety violations under the Federal Mine Safety and Health Act. He was given until Tuesday (May 11) to decide whether or not he wants to continue mining and will advise the government by that date of his decision. During the week between May 4 and 11, he agreed not to mine. He was later released on his own recognizance and returned to Myrtle Point.

At press time, the Herald had not learn of his decision.

Mike Shimizu, Seattle, regional director of public affairs for the U.S. Labor Department, told the Herald he could not give the paper much information as the case is still "an open investigation."

"It does involve conditions under the Mine Safety and Health Act that he has refused to respond to. Inspectors have been out to his rock pit, and he refused to abate some of the conditions that we cited," Shimizu said.

He would not confirm if this were a routine inspection or if it came as a result of a complaint.

Schrader told the Hearld that he had "hundreds of pages of tickets. I laughed at them. I got thrown in jail for a few hours. It's the principal of the thing," he said.

"Are your prepared to die today for your liberties? Several people in Myrtle Point witnessed ...a Gestapo act of terrorism and the kidnapping of an American citizen for a for-profit corporation," Schrader said. See Schrader's letter to the editor below.

"Schrader Describes Arrest for Rock Pit Violations"

2010-05-18T16:44:00.000-07:00

This was a letter to the editor in the Myrtle Point Herald, in the small town of Myrtle Point, Oregon earlier this month, and is written by 65-year-old Francis Schrader, the owner of All Coast Concrete.

To the editor:

"Are you prepared to die for your liberties? Several people, in Myrtle Point, witnessed, on May 4 at about 10 a.m. a Gestapo act of terrorism and the kidnapping of an American Citizen by a for-profit corporation. The Myrtle Point citizen on the street or near the mini-mart near Railroad Avenue were at risk of being shot or killed during this assault.

An American citizen was called three times by phone and lied to on each call. This citizen was told that there had been an accident and damage done to the citizen's parked truck by a man called Jim Roberts. The person on the phone said he got the cell phone number off the door on the damaged truck. He said he had to soon leave town, but wanted to settle the damages first, in cash, and he asked for the citizen to come to the dump truck.

When the citizen arrived at the dump truck at around 10 a.m., he found no damage and nobody around. He suddenly saw two plainclothes me running toward him from about 150 feet away, yelling, one of which was pointing a revolver in his direction. He was told to get on his hands out of his pockets, turn around, and hands behind his back. The 65-year-old citizen was taken to the pavement by two men in their 30's, from behind, and handcuffed. They refused to give any identification as to who they were. They then began picking up all the papers and personal items that had flown from the citizen's pocket during the attack.

A neighbor, thinking this was a mugging, robbery, and/or kidnapping, called 9-1-1. The Myrtle Point police officer that arrived on the scene ask them two times while his gun was pointed at them what was going on and who they were. At first they ignored him. At this point, the citizen was in the line of fire. Finally, arrogantly, they replied that they were U.S. Marshals, at which time the Myrtle Point officer forced them to show identification.

The guns were lowered and the citizen was hauled to the U.S. District Court in Eugene.

The people of Myrtle Point were in great danger if shots had been exchanged. The Myrtle Point police officer did a very professional job of protecting the citizen. Thank you. There was no reason to approach the citizen in the manner they did, as he did not even have a traffic ticket on his record!

Could this happen to you? This citizen hopes not. When one stands up for what is right and true, the allege government does not like it. Fear is the weapon they use. This citizen is not buying their bullying tactics.

This is all over whether I have the right to work in my rock pit without their jurisdiction, as if this citizen does not know how to take care of himself. The Mine Safety and Health Administration, better known to rock pit owners and workers as MSHA, is behind it all.

This citizen has the creator as his Lord and Savior. He will not submit to such tyranny with the Kind of the universe by his side. I covet the prayers of all who stand for truth, love and liberty."

Francis Richard Schrader, Sovereign American,
Myrtle Point, republic of Oregon

May 24th Workshop in Kent, Washington:

2010-05-18T16:00:00.000-07:00

2.5 Hour MSHA WORKSHOP HAS BEEN RESCHEDULED FOR:

MONDAY, MAY 24TH @ 9:00am - 11:30am

MSHA requested to reschedule the workshop for Monday, May 24th and we indicated we would advise once we had all planning and commitments in place. SAME LOCATION as prior notice, please see below for more details.

Everyone is aware the dynamics in MSHA are changing and very unpopular and that is not likely to change in the short term.

Recently, MSHA has implemented a renewed emphasis of enforcement policy on Return Roller Guarding, implemented Rules to Live By and Horn policy. The objective of this workshop is to discuss these 3 areas and obtain clarification regarding these standards.

The Safety Committee has scheduled time with the local KENT District MSHA supervisors to discuss these issues.

WHEN: MONDAY MAY 24TH AT 9:00am- 11:30am

WHERE: AT THE CENTERPOINT CORPORATE OFFICES IN KENT

20809 72ND AVE S. // KENT // 98032

*** COMMONS BUILDING

*** Same building as the Alkai Bakery & Day Care
*** Site where the Spring Thaw Meetings have been held

WHAT: Review of Policies for Return Roller Guarding,
Rules to Live By and Horn Policy

HOW: To register for this COMPLIMENTARY workshop

please email Sarah at shamner@washingtonconcrete.org

The Safety Committee is gathering and evaluating picture examples of when return rollers may require guarding and when they may not, and we hope to have a dialogue with the agency to clarify other newly implemented policies that are creating confusion.

If you cannot attend, not too worry, we will take copious notes and provide as much guidance and clarity as we can following the event. IF you are interested in receiving updated information discussed at the workshop please email me or Sarah Hamner at: shamner@washingtonconcrete.org

*** Note Sarah Patterson's email has changed to:

shamner@washingtonconcrete.org

spatterson@washingtonconcrete.org will remain active for a little while. Please update your records accordingly.

From I-5:

Take the 188th St / Orilla Rd Exit // Turn LEFT onto Orilla Rd // Orilla Rd becomes 212th St. // Turn LEFT onto W. Valley Hwy / 68th Ave S. // Turn RIGHT onto S. 208th St. // Take a LEFT at the "V" in the driveway, the Commons Building is on your RIGHT.

From I-405:

Take WA 167N - Exit 2B toward Rainer Ave S // Merge onto Valley Fwy. (WA -167 S.) via Exit 2A on the LEFT towards Kent / Auburn // Take the 212th St. Exit // Turn RIGHT onto 212th St. // Turn RIGHT onto W. Valley Hwy / 68th Ave S. // Turn RIGHT Onto 208th St. Take a LEFT at the "V" in the driveway.

For more information contact:

bchattin@washingtonconcrete.org // 206-571-3395

WA Aggregates & Concrete Association

22223 7th Avenue So.

Des Moines, WA 98198

ph. 206.878.1622

fx. 206.878.6282

www.washingtonconcrete.org

Encylopedia.com AND Google Search Results for MSHA FBI Investigation:

2010-05-01T09:07:00.000-07:00

Here is a link to a great search engine called: Encyclopedia.com

http://www.encyclopedia.com/searchresults.aspx?q=MSHA

From Google:

Massey, Federal Officials Investigated In Mine Blast

NPR - Howard Berkes - ‎12 hours ago‎

The sources also say the probe also includes possible bribery of employees of MSHA, the federal agency that inspects coal and other mines and enforced ...

DEVELOPING: MSHA, Massey Energy Under Possible FBI Bribery Investigation

HNN Huntingtonnews.net - Tony Rutherford - ‎9 hours ago‎

Late Friday afternoon, April 30, a federal law enforcement source denied that the MSHA is part of the UBB mine disaster investigation. ...

FBI Said to Conduct Criminal Investigation of Massey Explosion

Bloomberg - Mario Parker, Justin Blum - ‎18 hours ago‎

... are among the top 20 in the US ranked by the number of “significant and substantial” violations accrued since January 2009, according to MSHA data. ...

Bribery allegation in mine WV probe

The Guardian - ‎21 hours ago‎

When last we spoke of this general matter, the subject of why MSHA, the mine safety and health administration, didn't do more to prevent such disasters was ...

Massey Responds to MSHA Press Release Regarding Surprise Inspections

PR-USA.net (press release) - ‎Apr 30, 2010‎

Massey Energy Company today responded to MSHA's press release earlier today entitled "Hazard complaints result in surprise inspections at 3 Massey-owned ...

MSHA Inspectors May Have Been Bribed

West Virginia MetroNews - ‎Apr 30, 2010‎

ABC Radio reports an FBI Investigation is underway into allegations federal mine inspectors may have taken bribes ahead of the Upper Big Branch Mine ...

FBI Reportedly Launches MSHA-Massey Bribery Investigation

WOWK - ‎Apr 30, 2010‎

Massey Energy officials told NPR they did not know about the allegations, but that the company would fully cooperate with the investigation. MSHA did not ...

NPR: FBI probing possible bribery of mine safety officials in W.Va. disaster

USA Today - ‎Apr 30, 2010‎

... cooperating with any investigation. MSHA, the federal agency that inspects and regulates mining, has yet to respond to a request for comment, NPR says.

US Sued by Widows Over Massey 2006 Coal Mine Fire Deaths

BusinessWeek - Chris Stratton, Margaret Cronin Fisk - ‎Apr 29, 2010‎

“MSHA found at least 20 specific safety violations that contributed to the accident that killed Mr. Bragg and Mr. Hatfield,” according to the complaint. ...

Former miner says FBI investigation is 'long over due'

West Virginia Public Broadcasting - Jessica Y. Lilly - ‎20 hours ago‎

April 30, 2010 · News of the FBI investigating Massey Energy, and the federal MSHA office for allegations of bribery, are bringing hope ...

Massey Energy To Bid On Idled Washington County Mine

WPXI Pittsburgh - ‎20 hours ago‎

Massey acknowledged MSHA found conditions that didn't meet company or industry standards. But Massey denied MSHA's assertion there was a fire at one of the ...

FBI Probing US Officials And Massey, Owner Of W. Va. Mine Where 29 Died

NPR (blog) - Howard Berkes, Dina Temple-Raston - ‎Apr 30, 2010‎

NPR has reported that Massey Energy and MSHA were the subjects of investigations. NPR News has learned that the Mine Safety and Health Administration is one ...

Massey Energy (MEE) Slammed On Reports of FBI Investigation

StreetInsider.com (subscription) - ‎Apr 30, 2010‎

The mining company has been cited on several occasions for violations of the safety standards set by the MSHA, and rumors have been swirling that mine ...

Massey, mining regulator under FBI probe: report

Reuters - John Gress, James Vicini - ‎Apr 30, 2010‎

... was the result of "willful disregard" for safety regulations but acknowledged that eight Massey mines were targets for an inspection "blitz" by MSHA. ...

FBI interviews Massey employees in mine blast probe

CNN (blog) - Brantley Foster - ‎12 hours ago‎

To my mind, it'll be tough for the gov to show that the consequences of whatever oversight they finger as the root cause of this were Rx Fx. If it ends up ...

Prosecutors Investigating Coal Company

Los Angeles Times - ‎16 hours ago‎

Washington…The Justice Department has launched a criminal investigation of the explosion at Massey Energy's Big Branch mine in West Virginia, ...

Mining Notes: Second Miner Dies in Ky., Massey Under Criminal Probe, Potential ...

FairWarning (blog) - Bridget Huber - ‎Apr 30, 2010‎

Rescue workers recovered the body of a second coal miner killed in a collapse at a Kentucky mine with a history of safety ...

Mine Blast That Killed 29 Prompts FBI Inquiry

New York Times - Ian Urbina - ‎18 hours ago‎

WASHINGTON — The FBI has interviewed more than 20 employees of Massey Energy in a criminal investigation of the explosion that killed 29 of ...

Hazard complaints result in surprise inspections at 3 Massey-owned mines

PR-CANADA.net (press release) - ‎Apr 29, 2010‎

The US Department of Labor's Mine Safety and Health Administration today announced that MSHA inspectors responded to three separate anonymous complaints ...

FBI interviews nearly 2 dozen Massey employees

The Associated Press - Pete Yost - ‎19 hours ago‎

WASHINGTON — The FBI has interviewed nearly two dozen current and former employees of Massey Energy Co. in a criminal probe of the West Virginia mine ...

Justice Dept. investigating W.Va. mine explosion

Washington Post (blog) - Jerry Markon, Ed O'Keefe - ‎22 hours ago‎

By The Post's Jerry Markon and Ed O'Keefe: The Justice Department is conducting a criminal investigation of the explosion that killed 29 people at a West ...

Massey Energy shares fall on report of FBI probe

MarketWatch - Steve Gelsi - ‎22 hours ago‎

SAN FRANCISCO (MarketWatch) -- Shares of Massey Energy fell as much as 9% Friday after the company said media reports of a ...

Upper Big Branch mine remains unsafe for investigators

Beckley Register-Herald - Mannix Porterfield - ‎Apr 29, 2010‎

Within the past few days, Massey Energy and MSHA have engaged in a war of words over safety issues at the mine leading up to the explosion. ...

FBI Investigating Fed Officials And Massey Energy Over Possibly Bribery

Huffington Post (blog) - ‎Apr 30, 2010‎

NPR News reports that the FBI is investigating the possible bribery of federal officials overseeing mining industry regulation by Massey Energy, ...

Massey shares drop on report of FBI probe

MarketWatch - Wallace Witkowski - ‎Apr 30, 2010‎

SAN FRANCISCO (MarketWatch) -- Shares of Massey Energy Co. (NYSE:MEE) dropped Friday following a National Public Radio report that the coal mine operator is ...

Mine Owner, Safety Agency Face Federal Inquiry

NPR - ‎Apr 30, 2010‎

The Mine Safety and Health Administration is the subject of a federal criminal investigation following the explosion at the Upper Big Branch mine in West ...

Massey mine still not safe for investigators to enter

istockAnalyst.com (press release) - ‎Apr 29, 2010‎

MSHA and the state Office of Miners Health, Safety and Training are investigating. Additionally, Gov. Joe Manchin appointed longtime mine safety advocate ...

FBI investigating W.Va. mine blast

UPI.com - ‎2 hours ago‎

WASHINGTON, May 1 (UPI) -- The FBI has interviewed more than 20 Massey Energy employees in a criminal investigation into the explosion that killed 29 West ...

Mine blast inquiry

Sarasota Herald-Tribune - ‎9 hours ago‎

The Justice Department has launched a criminal investigation of the April 5 explosion at Massey Energy's Big Branch mine in West Virginia, law enforcement ...

Massey under FBI investigation for possible negligence

Pittsburgh Tribune-Review - Brian Bowling - ‎12 hours ago‎

Brian Bowling is a Pittsburgh Tribune-Review staff writer and can be reached at 412-325-4301 or via e-mail. ...

MSHA Under FBI Investigation:

2010-05-01T08:04:00.000-07:00

May 1, 2010

DEVELOPING:
MSHA, Massey Energy Under Possible FBI Bribery Investigation
Case Originated in US Attorney’s Office in WV

By Tony Rutherford
Huntingtonnews.net Reporter

Washington, DC (HNN) – National Public Radio has reported that the FBI is looking into “possible bribery of employees of the Mine Safety and Health Administration” in connection with “potential criminal negligence on the part of Massey Energy.” The company owns the Upper Big Branch mine near Beckley, W.Va., where on April 5 twenty-nine miners lost their lives.

Massey Energy issued a statement that they have “no knowledge” of criminal wrongdoing, adding, “It is not uncommon that an accident of the size and scope of UBB would lead to a comprehensive investigation by relevant law enforcement agencies.”

The Los Angeles Times has reported that the Justice Department had stepped into the mining tragedy and that the case “originated in the U.S. attorney’s office in the Southern District of West Virginia.” Both the U.S. Attorney for the Southern District (who referred questions to the Justice Department) have declined comment.

According to the NPR report and one by the Associated Press, about two dozen current and former employees of Massey have been interviewed in connection with the criminal investigation.

Late Friday afternoon, April 30, a federal law enforcement source denied that the MSHA is part of the UBB mine disaster investigation. “I can say that there’s an investigation but it’s not about them (MSHA),” the report said. However, NPR “stands by” its earlier report.

NPR discovered the criminal investigation after one of their reporter’s tried to interview a miner. The miner said he could not talk because he was “being interviewed by an FBI agent and an investigator from MSHA.”

Previously released MSHA documents showed that two “special investigations” were launched in 2009 concerning the UBB mine. Though, the so-called “preliminary special investigations” are referenced in MSHA records, there was no documentation provided on how these probes --- which generally open criminal investigations --- were closed.

“We are not sharing special investigation data with anybody right now,” said Kevin Stricklin, MSHA coal administrator. “That’s private,” the Charleston Gazette reported.

Contradicting the Massey Energy response that “it is not uncommon” for relevant law enforcement agencies to be involved, Tony Oppegard, a former senior official of MSHA and a former mine safety prosecutor in Kentucky, told NPR that FBI involvement in a mine disaster is “extremely rare. I’ve never heard of it before.”

The NPR story and updates can be found by clicking here: http://www.npr.org/blogs/thetwo-way/2010/04/fbi_probing_fed_officials_and.html. The LA Times story can be found at: http://www.latimes.com/news/nationworld/nation/wire/sc-dc-massey-investigation-20100430,0,7650481.story.

Massey CEO Don Blankenship will be interviewed on Decision Makers which airs Sunday morning, May 2 at 8 a.m. on various West Virginia Media Holdings television stations. Blankenship said, in part in the interview, “ Our people know we do not condone anything like that… something of the nature described by National Public Radio would be very serious.”

Sharpe's Point and Other Recent Articles:

2010-05-01T07:29:00.000-07:00

Sharpe's Point

A couple of days ago, Jim Sharpe posted his latest newsletter. It is full of new investigative information, including an in-depth explanation of the MSHA Office of Accountability. MSHA denies having a citation quota for inspectors, but the way that the Office of Accountability is set up, the inspectors get audited and this puts pressure on some of them to increase the number of tickets that they write. To learn more, click on Sharpe's Point to get the details.

Jim Sharpe, a watchdog for the mining industry, also wrote a great articles in this month's newsletter on the Upper Big Branch disaster, the HELPS committee hearing, and possible enforcement consequences as a result. This is all great stuff to know. Jim has the best inside scoop out there, and his website is his job, so everything is up-to-date. Google: Sharpes Point.com

Links to Recent Articles Regarding MSHA:

"An Uphill Battle for an Underground Issue",
by: Tina Grady Barbaccia
http://www.aggman.com/agg-beat/

"Taking Inventory"
by: Peter Gould
http://www.aggman.com/rock-law-taking-inventory/

2010-04-29T07:39:00.000-07:00

Full Committee Hearing - Putting Safety First: Strengthening Enforcement and Creating a Culture of Compliance at Mines and Other Dangerous Workplaces

Link to HELPS Hearing on Safety:
http://help.senate.gov/hearings/hearing/?id=1c73dd04-5056-9502-5d66-5b82b85e591d

Link to Joe Main's Testimony:
http://help.senate.gov/imo/media/doc/Main.pdf

Link to Sen. Tom Harkin's Facebook Page:
http://www.facebook.com/home.php?#!/tomharkin

2010-04-26T10:55:00.000-07:00

See the video of this hearing tomorrow at 2:00 ET:

Full Committee Hearing - Putting Safety First: Strengthening Enforcement and Creating a Culture of Compliance at Mines and Other Dangerous Workplaces

Date:

Tuesday, April 27 2010, 2:00 PM

Place:

430 Dirksen Senate Office Building

Witnesses

Panel I

Joe Main , Assistant Secretary of Labor for Mine Safety and Health, Washington, DC

Panel II

Cecil Roberts , President, United Mine Workers, Triangle, VA
Jeff Harris , Mine Worker, Farley, WV
Wes Addington , Deputy Director, Appalachian Citizens’ Law Center, Whitesburg, KY
Bruce Watzman , Senior Vice President, Regulatory Affairs, National Mining Association, Washington, DC

Panel III

David Michaels , Assistant Secretary of Labor for Occupational Safety and Health, Washington, DC

Panel IV

Peg Seminario , Director of Safety and Health, AFL-CIO, Bethesda, MD
Holly Shaw , Philadelphia, PA
Dr. Michael Brandt , Board President (2010-2011), American Industrial Hygiene Association, Los Alamos, NM
Kelli Heflin , Coordinator of Regulatory Compliance and Safety Manager, Scott’s Liquid Gold, Denver, CO

Washington D.C. Meeting:

2010-04-18T08:21:00.000-07:00

This is from the April 2010 OIAA Newsletter. I am posting it here so that you can use it as an idea for your state or region. ~ Kathy

OIAA Director, Dan Kauffman has been working with Jim Sharpe of Sharpe’s Point: The Newsletter on Safety and Health in Mining regarding a meeting between Matt Bormet of Senator Ron Wyden’s office in Washington D.C. and Mr. Sharpe.

Following is a summary of Jim’s meeting notes, along with suggestions for Mr. Wyden’s office to consider.

“What MSHA is doing today is deeply troubling. The heavy hand of enforcement is hitting the small mines, who do not have deep resources. We are looking for a win-win scenario for everybody involved.

There are unintended consequences to the MINER Act that has been passed by Congress. Mines have become safer, but MSHA has taken enforcement to the extreme. Economic survival is the issue now. Money spent on excessive fines is no longer available for capital investment, job hiring, raises, 401K’s, health benefits, and sometimes even safety improvements. There is also the hidden cost of abatement.

Did Congress intend for any federal agency to exert this level of influence over such a vital sector of the economy? There is anger toward MSHA, and a backlash is coming. MSHA is making the federal government look bad.

To turn this around, we are asking Sen. Wyden’s office to hold a hearing in Washington D.C. that is exclusively for Metal/Non-Metal, and build momentum for changing the civil penalty structure in that area of mining. We ask that you invite Oregon and other Pacific Northwest producers to testify at the hearing. Also, please direct MSHA to not terminate its Small Mine Office program. Ask them to expand it instead. In addition, we are asking Mr. Wyden’s office to do all they can to limit the fallout to the aggregate sector from the Big Branch tragedy. We urge you to oppose the expansion of the S-MINER legislation beyond coal mines.”

A Ready Made Letter to the Editor :

2010-04-18T07:58:00.000-07:00

Jim Sharpe has written the following for Aggregate Producers to submit to their local newspaper editors. Please make sure to give him credit by mentioning the information in the white box below.

MSHA WOUNDS ITSELF WITH DECISION

TO DROP SMO

MSHA has shot itself in the foot with its decision to eliminate its Small Mine Office (SMO).

SMO is an important player within MSHA because of the vital role it plays in providing compliance assistance to small mines, especially in the dimension stone, sand & gravel and quarry sectors. It also helps make mines safer. Its demise will leave a serious void in MSHA’s resources for helping small mine operators.

MSHA’s decision is a self-inflicted injury for several reasons. First, MSHA’s own data show SMO to be effective. In a self-evaluation released in 2008, the Office reported a 66% decline in the fatal incidence rate among mines it had served over the previous 5-year period. SMO’s performance was sufficiently impressive to elicit a strong expression of praise recently from the agency’s own top policy official, Deputy Assistant Secretary Greg Wagner.

Thousands of small mines around the country don’t need Wagner to tell them what they already know: SMO is a valuable asset and a ray of sunshine amidst the otherwise dark shadow MSHA has been casting of late. As we reported last month, 15 of 16 small operators who have used SMO reported being very pleased with the service. In a web-based poll this month, 34 of 40 respondents did not favor SMO’s elimination.

The decision also makes the agency look bad because of the bumbling way MSHA went about it. In January, an agency spokesperson said SMO will not be “dismantled.” At the same time, the agency gave at least four different reasons why it was looking at alternatives. MSHA also said SMO’s compliance assistance function would continue.

But just days after promising not to terminate the Office, the agency released its FY 2011 budget justification statement to Congress. It carried a line item stating that SMO would go, effective Oct. 1. At the same time, the agency did not adequately explain how SMO’s critical compliance assistance functions would continue.

MSHA said the 21 staffers at SMO would be assigned to enforcement and litigation duties within MSHA’s six metal/non-metal districts. That change highlights another reason the decision is bad. Assigning compliance assistance responsibilities to enforcers won’t work. MSHA’s inspectors are not dedicated to compliance assistance. Enforcement is their mantra, their bread and butter, how they will ultimately be evaluated. Any responsibility on top of that is apt to be seen as an imposition and resented.

Nor can operators on the receiving end of this repackaged “compliance assistance” be expected to take it well. Handing someone several thousand dollars in citations does not create a healthy atmosphere for a teachable moment.

Just ask any newspaper that decides to run it to run this credit line: Adapted from an article published in Sharpe's Point, a mining trade publication.

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

HONK SO YOU DON'T GET FINED:

2010-04-18T07:56:00.001-07:00

Remember to honk your horn if you move your vehicle (car, pickup, truck, loader, etc.) when you move either forward or backward at your mine site. Also, even personal vehicles need to be chocked when you are in the mining area. The rules say that if you are on flat ground, you don't need to, but do it anyway because some inspectors are handing out citations even then.

In addition, make sure that your toilets are flushed. Apparently, "if it's yellow, let it mellow" does not fly with some MSHA inspectors. Speaking of bathrooms, another operator who had 3 guys out in the woods rock crushing got fined for not having an outhouse available.

Keep the garbage can lids in your break room covered at all times. An Oregon mining operation got a ticket for an empty potato chip wrapper in an uncovered kitchen garbage can. True story.

Then MSHA complains that everybody is fighting their citations and clogging up the court system for years. Even the little tickets above can go toward a Pattern of Violations history.

Presidental Speech:

2010-04-16T16:46:00.000-07:00

Here is the MSNBC link to President Obama's speech on Thursday, April 15, 2010 regarding the latest underground coal mine tragedy and how MSHA should have more power:

http://www.msnbc.msn.com/id/21134540/vp/36557921#36557921

Link to NY Times Article on MSHA and the latest coal mine disaster:

2010-04-11T16:13:00.000-07:00

Here is a link to the NY Times article on MSHA and the latest mine disaster. What do you think about this article? Is MSHA using it to let American’s know how kind they have been in letting things slide? Is MSHA trying to play the victim here? Will this help MSHA enforce the "S Miner’s Act"? While the sand, gravel and crushing operations are racking up tickets for unflushed toilets and potato chip wrappers in garbage cans for their pattern of violations; apparently the huge companies have gotten a pass, according to parts of the NY Times article.

MSHA's Kevin Stricklin speaks at a press conference.

http://www.msnbc.msn.com/id/36364165/ns/us_news-the_new_york_times/

"The agency can seek to close mines that it deems unsafe and to close repeat offenders, but it rarely does so. The fines it levies are relatively small, and many go uncollected for years. It lacks subpoena power, a basic investigatory tool. Its investigators are not technically law enforcement officers, like those at other agencies, including the Food and Drug Administration and the Environmental Protection Agency.

And its criminal sanctions are weak, the result of compromises over the 1977 Mine Act that created the agency. Falsifying records is a felony, for example, while deliberate violations of safety standards that may lead to deaths are misdemeanors."

From OIAA Board Member Gary Clapshaw:

2010-04-09T07:55:00.000-07:00

Unacceptable!

I am sitting at my desk contemplating the tragedy that occurred just two days ago in West Virginia. Twenty-five, maybe more, hard working individuals in the underground coal industry have perished as the result of another catastrophic failure.

This particular company has what seems to be a rather large number of citations for some very severe violations.

To an aboveground aggregate producer half a world away, I have a hard time understanding why my small company should suffer the effects from the fallout of yet another obvious catastrophic failure by this company as well as the federal agency that oversees them, MSHA.

MSHA rolls out new laws and programs every time one of these incidents takes place and then here comes another witch hunt! You know the story, no trash can lids, un-flushed toilets, chock the wheels on your passenger vehicle parked in front of the office on level ground… All the paperwork to write the violation and then more paperwork to terminate the citation, asses fines and collect fines, contest citations and on and on… It seems to me that energy being used on the aboveground aggregate producers in this country to enforce such violations should be redirected and focused on safety. Underground coal producers are far and away from aboveground aggregate producers practice and MSHA’s time, energy and focus should be directed to those areas that, after devastating disasters such as this latest incident, remind us of where the serious safety issues lie.

This is why I must conclude that it is time to call for the resignation of the Heads of each District in the Agency. In addition, a full congressional review of the Agency as to the effectiveness of the Agency to oversee the safety in the industry should be conducted. MSHA’s policies directly affect my company. So, why shouldn’t they also be held responsible for the policies, enforcement, and programs that are constantly being implemented into law after such catastrophic events take place?

In a nutshell what I am saying is these leaders are fiddling while Rome burns.

It is time for the complete separation between underground coal and aboveground aggregate producers. MSHA should be protecting the safety of the miner from serious injury and/or death. Tell me the last time a miner died or was injured from a toilet not being flushed or a lid not being placed on a garbage can. Enough of the madness!

Gary D. Clapshaw

President, Turner Gravel, Inc., Turner, Oregon

West Virginia Coal Mine Disaster:

2010-04-05T17:34:00.000-07:00

Our hearts and prayers go out to the coal miners in West Virginia. So far, 7 miners have died, and 19 miners are missing. This is very heartbreaking. We sincerely hope that the other 19 people are okay. We are praying for your rescue, wholeheartedly. God bless you and your families.

Here are some links to this story:
http://www.msnbc.msn.com/id/36183425/ns/us_news-life/
http://www.cnn.com/2010/US/04/05/west.virginia.mine.explosion/index.html?hpt=T1

At the same time, I hope that MSHA does not use this as an excuse to beat up the above ground sand and gravel pits. It will not help the coal miners, and it would not be justified.

2010-03-20T08:45:00.000-07:00

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:

2010-03-19T07:36:00.000-07:00

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:

2010-03-19T06:08:00.001-07:00

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...

2010-03-16T06:59:00.001-07:00

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:

2010-03-15T10:03:00.000-07:00

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

State of Washington MSHA Training Seminar: March 23, 2010

2010-03-09T17:28:00.000-08:00

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:

2010-03-09T14:35:00.000-08:00

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

2010-03-05T22:19:00.000-08:00

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:

2010-03-02T17:58:00.000-08:00

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!

2010-03-02T10:09:00.000-08:00

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

2010-03-02T09:40:00.001-08:00

MSHA Compliance

February 23, 2010

CONGRESS HOLDS HEARING ON MSHA CASE BACKLOG

For clients and friends of Jackson Kelly PLLC

Volume 6, Number 3

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.”

Continue reading "CONGRESS HOLDS HEARING ON MSHA CASE BACKLOG" »

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February 08, 2010

MSHA’s 2011 Budget Justification

For clients and friends of Jackson Kelly PLLC

Volume 6, Number 2

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.

Continue reading "MSHA’s 2011 Budget Justification" »

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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

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.

Continue reading "NEW MSHA ENFORCEMENT PROGRAM FOR PRIORITY STANDARDS" »

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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

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.

Continue reading "A FRESH LOOK AT THE S&S ANALYSIS" »

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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:

2010-03-02T06:32:00.000-08:00

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:

2010-03-01T20:16:00.001-08:00

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

Well, here you go:

2010-03-01T14:33:00.001-08:00

Brand New:

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.

MSHA's Rules to Live By Focus and H.R. 2768:

2010-02-19T08:13:00.001-08:00

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

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

No Citations? You may be in for a lot of trouble:

2010-02-19T06:40:00.000-08:00

Does your small sand and gravel pit have a history of safety, with inspector visits resulting in zero citiations? Congratulations! However, that very fact may be making you a target for MSHA to come down hard on you the next time they inspect.

Frank Adkins at Safeco, Inc. http://www.safeproinc.com has posted several articles this week about this very subject. Safepro, Inc. used to post a section on their website about mine operators who were outstanding in the zero or very low citation department. Frank now feels as if this proved to be a list for MSHA to target, and has suspended this practice.

There is more. Frank also posted that he has been told by a source inside MSHA that inspectors who make a visit to a mine site and do not write any citations are required to submit a report to their district manager how they justified that no tickets were deserved. He suggests that we all write to our senators and state representatives and inform them of this abuse of power.

Here in Oregon, we do know of a case where the inspector went out and did his job, and found nothing wrong at the site. He warned the mine operator to watch out, because his supervisor would be out to take a look. Sure enough, the supervisor came out the next day and wrote four S&S citations. There is something really wrong here, and apparently it is not always with the individual inspector.

I am also noticing a change in terminology. Last year, when we had a younger inspector in our area who was abrasive, aggressive and writing a lot of unfair citations, we were told by his superiors that the man was either a) just doing his job or b) was a "rouge" employee who they would talk to and tell him to settle down. Now, the supervisors are telling mine owners and operators that the inspectors who do not write tickets are "lazy" and are not doing their jobs. Wow.

This also makes me wonder if eliminating the Small Mines positions was due to the fact that this would eliminate one more person testifying that everything was fine at a mine site when they were there. In one way, the inspectors who give out two $100 citations may feel as if they are doing us a favor in the long run, but it doesn't really work out that way either, because of the pattern of violations clause. MSHA has it set up all in their favor, and continues to rethink all the little details to keep us right where they want us. They get us coming and going. It is unjust, to say the least, and very expensive for us, the mine owners.

I did a copy and past on the next part, from Safepro, Inc.'s website, because I feel that this letter to Frank clearly spells out what is now happening, and the frustration it brings to those who are just trying to make a living and provide jobs to those in their communities. The identifying names and company names were withheld so that the author would not get into further trouble with MSHA at this time:

"Frank,

Just read your comments on the "Zero" citation "witch hunt" that MSHA is currently implementing.

We here at ******* had a similar problem last month when the inspector showed up here. He came in on a ******* afternoon when we were shut down for the winter. He seemed to have trouble understanding why we were not producing since the day was fairly nice by January standards. I explained that we would not be running due to the low volume of sales and the weather uncertainty. He did a few looks at things, walked around the plant a little and said that he would be back tomorrow and hang noise and dust monitors on the only guy that I had working; which he was disappointed because he wanted to be able to use several guys for monitoring.

The next morning, after he had put his monitors in place he made a comment to me that really pi**ed me off, saying that he was researching our history and could not believe that we had not had citation in over 2? years. He said there is no way we are that good, and he felt that past inspectors were just lazy and didn't want to do their job.

At that point I knew that I was in trouble, and it was not going to be a good day. By the end of the day we a 1 non-S&S citation and 2 S&S citations for not having or implementing fall protection when a haul truck operator does a pre-shift on his ***** A-35C articulating haul truck each morning.

Needless to say I was extremely upset with him since we stress 3 points of contact just as the Operator's Manual directs us to do, his comment was that in his opinion we do not do that, and he claims to have seen me slip after demonstrating our practice to him (while wearing fall protection).

His next comment was he does not understand why "******'s Site Managers get so upset when he writes us a citation, and besides that I know you will contest these citations anyway, ****** always contests citations."

Needless to say he did not leave here without getting a real earful from me.

Hope all is well with you and Miss Blue.

Site Manager (Institute Graduate)

$afepro has removed names, dates, and times to prevent identification of the site. Here is the Manager's e-mail reply to my request to post the above.

Frank,

You may do anything with this e-mail that you want, and I wish I could truly express my distaste for MSHA at this time. I told the inspector that there was a time when we may not have liked having them come to our pit but after they left we knew that anything they found unsafe was brought to the attention of management and we were all the better for it. This is no longer the case we (being average Joe Miner) despise them coming in now because they don't care about average Joe Miner, they are only concerned about writing enough citation's to pay for their salaries and couldn't care any less about the miners, because now some of the ridiculous things that they are writing are causing more hazards then anything they are correcting. I wish I knew what the answer was to stop this bull**it that is going on with these inspectors.

Register for May 10-14 Institute at http://www.safeproinc.com"

Links to February 2010 News Articles on MSHA:

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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/

Sorting Out Mine Safety
by Rick Markley, in Rock Products.com
http://rockproducts.com/news/agg1_safety_0210/

Quarry News.com Database on MSHA Articles and News:
Type "MSHA" in the search box at the top right hand corner of the page.
http://www.quarrynews.com/ME2/Audiences/dirmod.asp?sid=&type=AdvancedSearch&nm=Advanced&mod=Site+Search&level=2&p=1

Getting the Attendtion of our Federal Senators:

2010-02-04T07:49:00.001-08:00

OIAA Board Member Jerry Davidson

On January 8, in Oakridge, Oregon, OIAA board member Jerry Davidson attended a town hall meeting held by Senator Ron Wyden. Jerry was chosen as one of the people allowed to submit a question, and he brought up issues that the aggregate industry was having with MSHA.

On January 28, Jerry, Andrew Siegmund, and Dan Kaufmann. along with Kim Redding of N Compliance, attended a meeting with Juine Chada, a Field Representative for Senator Wyden's office to go over the issues. You can email Ms. Chada with your information and experiences at this email address: Juine_Chada@wyden.senate.gov, or call her at 541-431-0229.

On Wednesday, February 3, 2009, Jessica Adamson, the Business Liaison for Senator Jeff Merkley's office, came to the OIAA meeting as a guest. Jessica gathered information from our board members, and is going to report back to Senator Merkley bringing our issues with MSHA into focus. Jessica's email is: Jessica_Adamson@merkley.senate.gov, and her phone number is 503-326-3386.

Link to Jim Sharpe's column in Rock Products magazine:
http://rockproducts.com/safety/rock_congress_msha_0110/

2010-01-31T06:21:00.000-08:00

No More Good Guys to Help?

MSHA is planning to remove the Small Mine Compliance positions (guys like Evan Church, in our local area). This means that you will no longer have somebody available to come out and look over your site and give you safety tips who actually works for MSHA.

Here is the link to the MSHA Small Mine Office website:
http://www.msha.gov/smallmineoffice/smallmineoffice.htm

Following is an excerpt from a letter written last March by Mike Davis, (the interim head of MSHA before Joe Main). It was in response to the outcry from small mine operators about MSHA inspectors:

"As government officials, we all have a duty to treat every member of the public professionally and with dignity and respect. We must develop and implement the most effective ways to produce the ultimate result - saving lives and preventing injuries and illnesses. We will use all of the tools available to us to achieve this result, including firm and fair enforcement, education and training, and technology."

Is that attitude now changing with the new director installed? What about the education and training part of that paragraph for those with small mines? Is MSHA more interested in handing out violations than in safety training? MSHA's funding has been expanded by millions of dollars in the past year, so why are they deleting the Small Mine Compliance people? I'm just wondering about the reasoning behind MSHA's decision in this matter.