News from MSHA's Neal Merrifield:

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:

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:

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:

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 handbook 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:

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:

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:

"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"

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:

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:

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. ...

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MSHA Under FBI Investigation:

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:

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/

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

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:

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 :

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)
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sharpemedia@verizon.net or grosharp@msn.com
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