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.

Webcast to be held Monday, Feb 1st:

(This meeting was held as scheduled, and the discussion and other information are at the bottom of this post.)

On Monday, February 1, Secretary Solis and DOL agency heads will unveil President Obama’s fiscal year 2011 budget for the Department of Labor via live Web chat from 1 to 3 pm EST. Built around the vision of “Good Jobs for Everyone,” the budget launches innovative ways to prepare workers for 21st Century jobs, and makes new investments in worker protection programs. Stakeholder groups, the general public and the news media are encouraged to participate by submitting questions through e-mail, Twitter and telephone.

http://www.dol.gov/budget/chat-solis.htm#protections

2011 DOL Budget -

Live Q&A Session

NOTE: If you are unable to access the live chat window, please go to the static comments page and refresh the page for new comments.

Schedule

• Secretary Solis: 1-2 p.m. EST
• Workforce Investment: 2-2:30 p.m. EST (List of DOL Participants)
• Worker Protections: 2:30-3 p.m. EST (List of DOL Participants)

How to Participate:

• Enter your question directly into the live chat window below
• Use the hashtag #DOLBUDGET on Twitter
• Call our National Contact Center at 1-866-487-2365
• E-mail us at webmaster@dol.gov

Workforce Investment Chat Participants:

• Jane Oates (Assistant Secretary, Employment & Training Administr ation)
• Ray Jefferson (Assistant Secretary, Veterans ' Employment & Training Service)
• Kathy Martinez (Assistant Secretary, Office of Disability Employment Policy)

Worker Protections Chat Participants:

• Dr. David Michaels (Assistant Secretary, Occupati onal Safety & Health Administration)
• Patricia Shiu (Director, Office of Federal Contract Compliance Programs)
• Phyllis Borzi (Assistant Secretary, Employe e Benefits Security Administration)
• John Lund (Deputy Assistant Secretary, Office of Labor-Management Standards)
• Sandra Polaski (Deputy Undersecretary, Bu reau of International Labor Affairs)
• Joe Main (Assistant Secretary, Mine Safety and Health Administration)
• Nancy Leppink (Dep uty Administrator, Wage and Hour Division)
• Deborah Greenfiel d (Acting Deputy, Solictor of Labor)

Follow-up Information on the meeting above:

Summary of the meeting, regarding the MSHA portions, submitted by a reader of this website. (Thank you very much, by the way!):

On Monday February 1, 2010 Secretary of Labor Hilda L. Solis released the 2011 Budget Request of $13.98 Billion, of that $360,780,000 is for MSHA.

In FY 2011, MSHA proposes to improve safety and health conditions in the mining workplace by:

* Targeting the most common causes of fatal accidents;

* Reducing health risks;

* Improving training of new and inexperienced miners and contractors;

* Targeting the most egregious and persistent violators;

* Improving impoundment safety;

* Improving MSHA and mining industry emergency response preparedness; and

* Protecting miners’ rights against discrimination for reporting hazardous conditions.

Secure Safe and Healthy Workplaces, Particularly In High-Risk Industries:

MSHA contributes directly to the attainment of safe and healthy workplaces by its efforts to reduce mining fatalities and serious injuries and illnesses, which are reflected in its performance indicators below. MSHA’s fatality rate calculates the number of fatalities per 200,000 hours worked over a five-year period in the mining industry. The following indicators for safer mining workplaces will be measured in FY 2011:

Enforcement:

Five-year rolling average of fatal injuries per 200,000 hours worked

Percent of inspector respirable coal mine dust samples exceeding the applicable standard for Designated Occupations

Percent of noise exposures in coal mines above the citation level

Percent of Metal and Nonmetal Mines conducting their own silica dust surveys and noise evaluations for miners

Improve the Timeliness of Discrimination Complaint Investigations:

Percent of investigations of miner discrimination complaints that are completed within 60 days of receipt

Percent of investigations of miner requests for temporary reinstatement that are completed within 20 days of receipt

MSHA will implement several initiatives to reach the targets for its performance indicators and achieve its high priority goal to Reduce Workplace Deaths. MSHA has evaluated the historical data and will target the 24 most frequently cited standards that cause or contribute to fatal accidents. MSHA intends to enhance enforcement to target these violations of the identified standards and concurrently develop and implement training strategies for improving compliance. MSHA will enhance its efforts to screen mine operators for potential patterns of violations which most frequently cause or contribute to fatal accidents and require that mine operators who are found to have a potential pattern of violations develop and implement an ongoing comprehensive safety and health management program that targets the reduction of conditions which most frequently contribute to significant accidents.

MSHA will contribute to the attainment of healthy workplaces by its efforts to reduce miners’ exposure to coal and silica dust and other health hazards. MSHA will address respirable coal dust by the development and implementation of a comprehensive black lung strategy which involves rulemaking, education and training, health outreach, and enhanced enforcement. These efforts will include using focused audits to target the most egregious and persistent violators by aggressively investigating and acting on unlawful respirable dust sampling practices. MSHA will increase the surveillance in the metal and nonmetal mining sector.

Voice in the Workplace:

Miners will be encouraged to report any hazardous conditions that they encounter via telephone or by using the Hazardous Condition Complaint form located on MSHA’s internet site. MSHA will improve its process to investigate miners’ discrimination complaints and complete investigations of knowing and willful violations.

MSHA expects that by implementing these initiatives it can effect significant and measurable reductions in mining deaths and health risks.

_____________________

During a Web chat on Monday 2/1/10 Secretary Solis and Joe Main, the Assistant Secretary of MSHA answered the following questions about the MSHA budget;

[Comment From Guest Guest: ]

Could you comment specifically on the budget for MSHA and what the goal there is?

Secretary Solis:

MSHA's goals are to reduce deaths, injuries and diseases from mining. The MSHA budget is constructed to support a number of safety and health initiatives, and assure that MSHA can implement the Mine Act to address these goals.

[Comment From Ken Ward Jr. Ken Ward Jr.: ]

Could you outline how the proposed budget affects MSHA and ongoing efforts to eliminate black lung disease and do away with mining deaths?

Secretary Solis:

The budget is designed to carry out implementation of the Mine Act. That includes complete inspections of mines (including health inspections). MSHA has launched a special program to End Black Lung and is launching another focused on prevention of mining deaths. Both programs include education and improved enforcement

[Comment From Kathy Snyder MS&HN Kathy Snyder MS&HN: ]

Perhaps you would give us a run-down on prospects for miner safety and health in 2011?

Joe Main:

In FY 2011, MSHA will improve safety and health conditions in the mining workplace by targeting the most common causes of fatal accidents, reducing health risks, and improving miners training. We will also focus on improving impoundment safety as well as emergency response preparedness. The budget is designed, fundamentally, to assure implementation of the Mine Act – including complete inspection of all mines. The 2011 budget will permit MSHA to continue and expand efforts to end black lung disease and prevent fatalities.

[Comment From James Sharpe James Sharpe: ]

How much money has been set aside for the state grants training program?

Joe Main:

The 2011 Budget includes $8,441,000.00 for state grant assistance, and $500,000.00 for Brentwood-Sago Grants.

[Comment From Bruce Bruce: ]

The budget proposal includes an increase of $4 million for the Mine Safety and Health Administration. Can you identify the MSHA programs that will be increased and by what amount?

Joe Main:

The program increases will incur in the metal and non-metal program, the Office of Standards, the Technical Support program, and the programs responsible of MSHA's computer systems and technology.

[Comment From James Sharpe James Sharpe: ]

Is there an increase in the budget for enforcement and, if so, by how much? Please break down the answer by Coal vs. Metal/Non-Metal.

Joe Main:

The budget request includes an increase of 4.8 million dollars for MSHA enforcement programs. The Coal Program has an increase of $397,000; the metal / non-metal program received an increase of 3.5 million, and the Office of Standards grew by $841,000.

[Comment From Kathy Snyder Kathy Snyder: ]

For Joe Main: I sent this Q in to Secy Solis, too, but it seems there was not enough time for her to answer it. The MSHA budget calls for eliminating the Small Mine Safety office that provides consultation to small mine operators who usually don't have their own professional health and safety personnel. This is $2.3 m and 21 FTE. Is MSHA still going to be able to assist these mines, and if so, how?

Joe Main:

Yes, MSHA believes that assistance to small mines is needed, and we are making changes to improve that assistance. Personnel from the Small Mines Office and the work they are doing will be integrated throughout the Agency. This will bring small mines assistance closer to the mines and the mine operators.

Small mines assistance expertise will be delivered primarily through our coal and metal / non-metal program areas. We have initiated discussions with the mining community to improve the quality and value of this important area of work.

The Chat:
http://www.dol.gov/budget/chat-solis-static.htm

The Budget:
http://www.dol.gov/dol/budget/2011/PDF/CBJ-2011-V2-12.pdf

Congratulations to OIAA Board Member Dan Kauffman:

OIAA Board Member Dan Kauffman

Oregon Independent Aggregate Association founding board member Dan Kauffman is the Owner/Operator of DK Quarries, Inc. in Lincoln City, Oregon.

In October, Dan attended the MS & H training in Savanna, Georgia held by Safe Pro, Inc. Dan was selected by his peers as the Most Promising Safe Production Officer in the class! Cary and I and the membership at OIAA are very proud of Dan for his outstanding performance.

There are a few more institutes coming up this year, one in just a few days, Feb. 8-12. The next one will be held May 10-14. To find out more, see the Safe Pro, Inc. website or call 1-828-766-6611.

In the News:

Safe Pro, Inc. currently has so much news on their website that I encourage you to click on their link and read all of it. http://safeproinc.com/


Here is another very important piece of information from Safe Pro, Inc's website that is a must read:

"6 More Provisions About the Proposed S Miners Act That You Should Know"
http://safeproinc.com/6_more_provisions_about_the_prop._minersact_you-should_know.htm

HUGE NEWS from Jim Sharpe and Safe Pro, Inc :
MSHA's March 15th Enforcement Initiative:
http://safeproinc.com/msha_march_15_enforcement_initia.htm


Here is a copy of the letter that the North Carolina Aggregate Association sent to their Congressmen. They are encouraging your association to use it as a guideline to write your own letter. Thank you to Safe Pro, Inc's website for this information.
http://safeproinc.com/msha_letter_to_congresspoeple.htm

Have you guys seen this yet? If you have material stockpiled and claim it as inventory, you will have to pay taxes on each individual pile.

This article is from the December 2009 issue of The Concrete Producer and is titled: Is the Tax Man Coming?
http://www.theconcreteproducer.com/industry-news.asp?sectionID=1427&articleID=1151383

Blasting Contractors Getting Squeezed:
http://rockproducts.com/drilling-blasting/rock_blasting_contractors_0110/

MSHA Marks 40th Anniversary:
http://greglemke.wordpress.com/2009/12/30/msha-marks-40th-anniversary-of-landmark-mine-legislation/

Interview with Joe Main:
http://blogs.wvgazette.com/coaltattoo/2009/11/20/joe-main-outlines-priorities-for-msha/

Joe Main Promises Law and Order:
http://rockproducts.com/safety/rock_new_safety_sheriff/

Expect Enforcement:
http://www.aggman.com/expect-enforcement/

Breaking News from MSHA: Black Lung is Bad
http://thepumphandle.wordpress.com/2009/12/03/breaking-news-from-msha-black-lung-is-bad/

Straight Talk on Safety:
http://www.aggman.com/straight-talk-on-safety/

Paper Paper Everywhere:
http://www.aggman.com/paper-paper-everywhere/

D-Paper D-Ciphered:
http://www.aggman.com/d-paper-d-ciphered/

The Art of Air Sampling:
http://www.aggman.com/the-art-of-air-sampling/

MSHA Liability for Injuries:
http://www.pitandquarry.com/pitandquarry/Law/MSHA-liability-for-injuries-8212-a-continuing-saga/ArticleStandard/Article/detail/283020?contextCategoryId=579&searchString=MSHA

MSHA's Mythical Documents:
http://www.pitandquarry.com/pitandquarry/Law/MSHAs-mythical-documents/ArticleColumn/Article/detail/68709?searchString=MSHA

MSHA Enforcement in 2009:
http://www.pitandquarry.com/pitandquarry/Features/MSHA-enforcement-in-2009/ArticleStandard/Article/detail/582621?contextCategoryId=46769&searchString=MSHA


Who Investigates MSHA?:
http://www.pitandquarry.com/government/laws-regulations/who-investigates-msha

Congress Is Getting Tough on Mining

Here is a link to an article that came out on January 3, 2010 regarding new rules on mining ... how much is this legislation going to cost your business?

http://cbs4denver.com/local/After.years.of.2.1402429.html


A link to an article on MSHA getting more money for enforcement dated December 15, 2009:

http://blogs.wvgazette.com/coaltattoo/2009/12/14/senate-approves-more-funding-for-msha/


Link to: "Is MSHA speaking clearly on coal dust limits?"

http://blogs.wvgazette.com/coaltattoo/2009/12/08/is-msha-speaking-clearly-on-coal-dust-limits/


Link to: Pit and Quarry's "MSHA's Enforcement in 2009"

http://www.pitandquarry.com/pitandquarry/Features/MSHA-enforcement-in-2009/ArticleStandard/Article/detail/582621?contextCategoryId=46769&searchString=MSHA


Link to: Patton Boggs' "MSHA's Extensive Enforcement Authority"

http://www.pattonboggs.com/files/News/dddaf446-3e1c-4a2a-a7ae-065c912cd3fd/Presentation/NewsAttachment/d84e2987-109f-41a3-967f-0a55cd01e70d/February%202006%20%28Hendrix%29-Posted.pdf

Link to: "Article on MSHA's Pattern of Violations"
http://www.dinslaw.com/files/News/61243dfd-5cb8-4180-9b3c-02eee5c9b909/Presentation/NewsAttachment/145a7ec4-fafb-4163-9b27-04a7a077cf57/MSHA%27s%20Use%20of%20Pattern%20of%20Violations.pdf

News and Upcoming Events:

I have added new information at the bottom of the sidebar, above the hit counter. There is a list of Blogs that talk about MSHA, and a list of Research Tools for learning more about MSHA. Please let me know of other sites you would like added to those lists.

Link to Other Blogs about MSHA:

http://en.wordpress.com/tag/msha/

***********************

There are two interesting articles regarding MSHA in August's online Rock Products magazine. The first is by Adele Abrams, " Citation History Bites Back", and the second is by James Sharpe, "An MSHA Survival Guide". Click on the links below to read the articles.

Adele's Article:
http://viewer.zmags.com/publication/e1e7bf6e#/e1e7bf6e/10


Jim's Article:
http://viewer.zmags.com/publication/e1e7bf6e#/e1e7bf6e/12

MSHA Meets with OIAA and Other Interested Parties for Guarding and Highwall Trainings:

On Wednesday, August 12, 2009, around 150 people attended a MSHA training meeting at the Mission Mill Museum in Salem, Oregon. MSHA was represented by Rich Laufenberg (Acting Administrator, M/NM) , Harvey Kirk (Guarding Specialist, Safety and Health Division, National Office), Kevin Hirsch (Supervisor, Vacaville, CA), Ron Jacobson (Field Office Supervisor, Boise, ID), Brad Breland (Field Office Supervisor, Albany, OR) and Evan Church (Small Mine Compliance). Mr. Kirk gave the presentation on Equipment Guarding, and Mr. Laufenberg presented information regarding Highwall Safety. Following the presentations was a question/answer and discussion period.

"Equipment Guarding"

by

Harvey Kirk

Here are the meeting notes I took on Harvey Kirk's Equipment Guarding presentation. For the complete DVD on this subject and to obtain the 2004 handbook titled: Guide to Equipment Guarding , please contact Mr. Kirk for ordering information. The Power Point presentation that Mr. Kirk used at the August 12th meeting is also available. His email is: kirk.lewis@dol.gov and his phone number is (202) 693-9617. There is also a new training resource video coming out from NSNGA, and it has information on guarding included. It will cover the process from crushing to trucking to stockpiling.

Mr. Kirk explained that his department focuses on reducing the number of fatalities, injuries, illnesses and risk to miners. He also strives to improve the consistency of guarding inspections and compliance between regions and across the nation by explaining those that are most cited and least understood. Mr. Kirk explained that there are around 100 serious injuries each year, as well as at least one fatality. Along with the number of miners who become permanently disabled from guarding accidents, there are scores of those with lost time and restricted duty. He gave a statistical breakdown of how the injuries happened, and it was interesting to learn that around 60% of injuries occurred during times maintenance.

Mr. Kirk introduced two terms for the group to consider: Residual Risk and Tolerable Risk, saying the the latter should be our goal. The rules on guarding standards are explained in the MSHA manual and it is important to know the standards and to read the preambles. The main goals are to guard against inadvertent contact of machinery and the guarding of engine drive belts on off-road vehicles (loaders, etc.)

The following materials can be used as guards if they are in good shape, strong and flexible: screencloth; rubber (if it is secured and replaced when needed), lightweight aluminum tubing; Tensar high-strength webbing; custom shapes or cut to fit plastic; plexiglass (may need to be replaced if scratches block the view) and sometimes wooden guards are fine. Plastic construction webbing is not okay, and neither are screens with sharp edges.

Mr. Kirk advised the following points:

• Be aware and guard against the whipping action of V-belts when they break.
• Make sure there are emergency stop switches on unguarded conveyors and walkways; making sure they work and are in good condition.
• Railings have to be in a good position and be structurally capable.
• Have good skirtboard and pinch point guarding.
• Return idlers are very dangerous and are killers. Make sure they are guarded if people will be walking by them or under them.
• Make sure to guard all running "nip points".
• Guards need to be checked and maintained. Vibration over time will cause a loss in effectiveness.
  
• Guards must be held securely in place at all times, either by fastening or held in place by its own weight, bulk or method of attachment.
• Pins and sleeves are a great idea to secure guards.
• Plastic wire ties are okay if they are heavy duty and there are enough of them. They must be kept in place and maintained (replaced when they get old).
• Read the specifics of CFR 56/57.14105: Procedures During Repairs.
• Guard your stationary grinding machines carefully. A peripheral hood is fine as long as it covers 270* and the maxium gap from tip to wheel is 1/4".

• Watch for dangers where the likelihood of injury is low, but the severity is high.
• Look for guarding problems in daily workplace exams and fix them immediately.
• Presses can be adequately guarded by using Plexiglas shields.
  
• It is a really good idea to color code your guards.
• Use extended grease fittings to avoid contact moving parts. During winter months, use thinner grease for better flow through the hoses (EP2 works well).
• Hinging guards is fine.
• Make continuous improvements on your guards. Don't make them too heavy; weld handles on them if it will help them function better.
• Beware of those moving parts that you consider "guarded by location". Any change or modification can cause loss of protection and something that was once safe is no longer.
• Area guarding is not for convenience. Only area guard when you can not use a point of contact guard.
  

"Highwall Safety"

by

Richard Laufenberg

Mr. Laufenberg talked to the group about highwall hazards and how to keep highwalls safe. Highwalls are in the MSHA manual under CFR 56.3130 which discusses wall, bank and slope stability both from above (falling material) and from below (loss of support).

The first thing to do is to eliminate hazards by both recognizing the hazard and correcting the hazard. Owners and operators need to study their own wall formations to determine the unique possible hazards at each site. Look at the highwall from both directions (facing the wall and parallel to the wall). Check to see if there is a 50% chance that the wall is unstable and ready for separation. Look for wedges formed by geometry and orientation. The wall beds will be effected by moisture, freezing and thawing, and will change over time. Check the joints of your wall. If there is a possibility of wall failure, block access until you have corrected the problem. If you can not correct it, it becomes unusable and you need to place warning signs and put barriers in place to prevent access.

Never get between your equipment and the highwall.

Types of Highwall Failure:

• Massive wall failure
• Planar failure
• Wedge failure
• Toppling failures
• Circular failure
• Highly fractured rock mass
• Rock falls. Rock fall factors to consider: exposure, block weight and geometry.
  
• In the Northwest the most important thing is rock removal. This can be done by resloping, trimming and sealing.
  
• Keep good records of your highwalls. Note any changes, no matter how small.

Protective Measures for Highwalls:

• Examination of ground conditions and monitoring of highwalls.
  
• Restrict access
• Equipment position
• FOPS (Falling Object Protective Standards)
• Mesh
• Benches
• Berms
• Computer modeling

Know the CFR 56.3131 - Pit or Quarry wall perimeter information. Keep the benches clean and maintained at leas one level above the mining operation. Also know CFR 56.3401 - Berming and examination of ground control, doing exams weekly or more often.

Discussion Period Notes:

During the first part of the question and answer period, Harvey Kirk had the floor. Questions ranged all over the board, and I will try to summarize the discussion here.

• Brad Breland assured an audience member that ample time would be given to fix guarding situations, instead of forcing a band-aide approach in an effort to just get things done quickly.
• I asked why the crusher and washplant manufactures were not required to install proper guards prior to selling their new equipment, so that we didn't have to scurry around trying to retrofit guards in a hit and miss fashion. Mr. Kirk said that you could order them that way, including that request in your bid. (I later found out that MSHA does not have jurisdiction over the manufacturers, only over our pits and the equipment we use in them.)
  
• When asked which approach gets better results, citations and fines or non-punitive cooperation, Mr. Kirk said that if an inspector sees a violation they have to write a ticket. He suggested that operators go back and fix the problem so that there would be no citation written in the first place.
• When asked how things went at the Field Inspector's meeting held the day before, and which things did the inspectors ask for clarification on, Mr. Kirk said that they asked such questions as if bolts were required. At their meeting, he cleared up misconceptions about guarding issues. Urban legends were dispelled. New inspectors still need to learn about guarding, and they had questions that he answered.
• Kim Redding pointed out that inconsistencies between inspectors about fixing guards cost mine operators up to $34,000 in fines and a lot of time to fight the incorrect citations. Mr. Kirk replied that Congress made those rules about the increase in fines. If you feel that the citation is unjustified, talk to the inspector. The inspector has an obligation to justify the tickets that they write, as well as explain the reasons why he wrote it to the operator. If you get nowhere with the inspector, go to the Field Office Supervisor, then to the district level if you need to. There is a process to be followed. Mr. Kirk also said that inspectors should not be writing citations unless it is a true violation; they cannot just make them up.
  
• Cary Matthews asked if it was really true that it was mandated for inspectors to issue citations and that they would be prosecuted if they did not. He wondered if Mr. Kirk knew of anybody who had actually been prosecuted for this. Mr. Kirk said, yes, he did know of somebody that was prosecuted, around two years ago.
  
• Cary then brought up the Mike Davis letter of March that instructed inspectors to be courteous and professional to small mine owners and operators. He wondered what recourse mine owners have if they come across a rude and unprofessional inspector. Mr. Kirk said that in that case, the operator should write to the Office of the Assistant Secretary or call them. Give the circumstances and name names. Neal Merrifield and Mr. Kirk will investigate and respond. They have trained investigators and will respond.
• Mr. Kirk was asked why the industry couldn't partner with MSHA like they can with Oregon and California OSHA, and why was it that only smaller mines could receive free consultation and education and not larger ones. Mr. Kirk replied that MSHA did have National Alliances with some organizations, but they do not apply to aggregate plants. There are some for the coal mines and for explosives, and the cement industry though. He suggested that we talk with Congress. As far as the difference between OSHA and MSHA, OSHA has specific standards, while MSHA uses the gray area.
• The question arose about the guarding standard for non-work related, and about inspectors deliberately laying on the ground and putting their arm up inside a guard and then writing a citation for unsafe guarding. His operation was cited for not bottom guarding tail pulleys 5" to 6" off the ground. Mr. Kirk said that there were misconceptions about that, and that the inspectors are getting retrained on that very issue. All of the people in the field office have been retaught on the tail pully requirements; retraining and review has been done.
• A question was asked about inspector interpretation being an issue, and if inspectors were graded on a daily basis to find their weak areas so that operators do not have to keep wasting time and money over the varying inspector opinions. Mr. Kirk replied that there were new training packets prepared for the new inspectors at the academy and that the experienced inspectors were being retrained. Managers from other districts are going into other areas to see how things are being done. Peer evaluations between the field offices are taking place. Checks are being made on the quality of inspections.
• Dennis Ingram said that one problem is the drastic black and white practice in subjective situations, the only choice for the inspector is to write a citation or not. He stated that there are many safe minded people who were very upset because practices are not consistent across the board, and that it should be possible to have a different approach, as in other government agencies. Mr. Kirk responded by saying that there was a line act by Congress to improve the selection of inspectors, and that we all have our own life experiences. Just like in selecting a juror, inspectors need to be reasonable people doing their job and they will be corrected if they are wrong.
• In answer to that, an audience member said that there is no money in the alternative. Consistency in inspectors is what we need. He gave the example that he had not had a ticket for years and years because he runs a safe operation, and then last year he received 20 tickets.
• Mary McNatt stated that OIAA and like minded organizations want to be working partners with MSHA, and that we do not like to be in an adversarial position. We want to work together to lessen frustrations. Mr. Kirk suggested that we work together at a local level with the field offices. Then, he handed the floor over to Mr. Laufenberg.
• Mr. Laufenberg told Mary that he would pass her request on to headquarters. He said that attending Spring Thaws and trainings such as today's all help to build relationship. He said that their agency is trying to be as consistent as possible. There is an Office of Accountibility and Performance and consistency is the goal. They review reports, work with Kevin Hirsch, and are out in the field more than ever before. Mr. Laufenberg assured us that allegations are reviewed at the highest level, even if we don't hear about the results.
• The question was presented that all of these were reactive issues instead of proactive ones. The audience member appreciates how Cal-OSHA comes out and consults, but MSHA does not. He thought it would be great if MSHA would. He said that this meeting was very informative, but was not going to fix the issues in the field.
• Mr. Laufenberg responded by saying that they came out to Oregon to do their presentations. Were those helpful or not? If you do your guarding over and above what is required and you won't get a citation. Members of the audience said, yes, this meeting was very helpful and we really appreciated them coming.
• The question was asked about highwalls, was there any measurement info available, as in how high can they be and still be safe? Mr. Laufenberg said to use the best practices recommendation, it was really a site specific issue. If you are still needing to know more about highwalls, contact MSHA's specialists for guidelines and technical support.
• A question was asked about whether or not the requirements that geologists gave met MSHA's criteria, and is there more that the mine operator needs to know besides the geologists report. Mr. Laufenberg said that benching is an option, not a requirement. You can scale the highwall, berm it, or evacuate the area. Geologists can give advice, but MSHA has rules on maintaining safety. There is exposure for each individual mines, and daily or weekly inspections are suggested.
• Gary Clapshaw asked Mr. Laufenberg about how he felt about the heavy handedness being applied to above ground mines because of what happened with the coal mine disasters. The answer was that in 2006 the Part 100 was changed to increase fines, because some mine owners had found it easier to just pay the fines and not fix the problems. MSHA is concerned about the safety of the miners, and this is a nationwide and important issue. He knows that we care about our employees and want to be safe also.
• I stated that when Mr. Merrifield came and spoke with us, he told us that 2 years ago there were $25 million in MSHA fines received into the general fund, and that there are now $250 million in MSHA fines written. I said we don't have the money to keep paying those kind of fines. He just looked at me. I said, I know you can't fix it, we just don't know what to do and who to talk to about it. The meeting broke up shortly after that.

(On a side note, I wondered if there are companies who go around to mine sites to review, manufacture and install site specific equipment guards for crusher and washplant operations. If anybody knows of some, I would be happy to list them on this website.)

Photos of the August 12th Meeting:

Cary Matthews and Dennis Ingram in
front of the Mission Mill Museum

OIAA Board President Mary McNatt
welcomes the group.

MSHA's Ron Jacobson and Rich Laufenberg
with Genoa Ingram and Mary McNatt

A meeting attendee visits with Harvey Kirk
as Genoa sets up equipment. Rich Laufenberg
and Dennis Ingram converse behind them.

MSHA's Richard Laufenberg
with OIAA's Dennis Ingram

MSHA's Kevin Hirsch and Ron Jacobson

MSHA's Harvey Kirk and OIAA's
Genoa Ingram, Court Street Consulting

OIAA Board Member Jerry Davidson and his son Waylon,
J. Davidson & Sons Construction

Kim Redding of N-Compliance, with OIAA Board Members
Dan Kauffman, D.K. Quarries, Inc.,
and Andrew Siegmund of Siegmund Excavation

Kevin Hirsch and Ron Jacobson

OIAA Board Member Cary Matthews, T.M. Sand & Gravel
and MSHA's Evan Church

OIAA and MSHA Meeting, July 15, 2009:

Genoa Ingram, Court Street Consulting
Jim Sharpe, Sharpe's Point
Cary Matthews, La Pine Redi Mix, Inc.

Cary and I have been traveling back and forth to Salem frequently to attend board meetings for an association that we belong to, the Oregon Independent Aggregate Association. OIAA was formed last October, and our first main issue to be dealt with was MSHA, otherwise known as the Mine Safety Health Association. MSHA is under the Department of Labor, and inspects coal mines, metal and non-metal mines, rock crushers and drilling operations.

Recently, they have increased the dollar amount of the fines and have put in this tricky little thing called pattern of violation. Pattern of violation reminds me of getting to the next level in a video game ... if you have a certain number of citations in a certain amount of time, your fines increase from about $250 each to $20,000 or more. This is something that really hurts, and, in some cases even destroys small companies. Also, there has been a lot of inconsistency in what is a deemed a violation or not. One inspector may say something looks fine, and the next one writes you a ticket when nothing has changed since the last inspection.

On top of all that, in the Western District, where Oregon is, there have been some inspectors (not many) who are aggressive and antagonistic; treating the mine owners and operators with rudeness and unprofessional behavior, as they write these huge tickets. I know this sounds like exaggeration and slanted reporting, but trust me, it is true.

That is the background. Mine owners and operators have tried to go up through the ranks and get some of these issues addressed, both locally and regionally. We did not get much help. Then, something rather good and nearly amazing just happened. On Wednesday, July 15th, one of the head people from MSHA, Neal Merrifield, came out to meet with our small association. Also in attendance were Arthur Ellis, the head of the Western District and John Pereza. We were also fortunate enough to have Jim Sharpe, from the industry online magazine called Sharpe's Point attend our meeting. Jim's website is www.sharpespoint.com

In addition, the above MSHA staff and others visited several local mines on a fact finding mission to see what the mines looked like and how they were operated.

The meeting itself lasted for 3 hours and was very positive. Most of us felt as if our voices were heard. Hopefully we will be seeing some changes in consistency and in how we are treated by MSHA. We very much appreciate Mr. Merrifield and the others coming out to meet with us.

~ Kathy

Meeting Notes:

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.