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$afepro
Editorial 5/23/2006
MSHA is again
reactive!
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$afepro
Editorial
9/02/2005
The
Company's Notes
With the country in
crisis mode after the natural disaster of Katrina,
MSHA
inspectors continue business in their same
lackadaisical manner. They continue writing "phony
citations", citing "S&S" on a whim, making up Law,
and badgering Production and Safety Officers! The
latest report is a doozy!
An inspector
inspected a site this week and informed the Company
Officer accompanying him that he was the only
inspector from his regional office that "did it
right". To further his argument, he informed this 5
Person Operation that he was an expert in his former
Production Supervisory field. To prove his expertise
he extended the normal 1 day inspection into two
days; all the while trashing his agency, the site
and
$afepro's
website. He was the Congress, The Law, the Technical
expert, and a website critic. (His criticism of the
$afepro
website was that it made them look bad and made
their job more difficult.)
At the Preinspection
Conference, which the firm insisted on, he told them
that his regional office forbade Operators taking
pictures during the inspection. They maintained
their right to take photographic evidence and did
throughout the two days. When he verbally castigated
the Safety Officer for taking pictures, he was
informed that his tone and attitude were abusive and
that the SO had his supervisor's phone number and
that they should call him for his take on the
inspector's rude manner. No call was made because
the inspector's vocal demeanor immediately changed.
After two days he had
concluded that 14 citations were due the small firm.
At the Closing Conference, the Firm’s knowledge of
The Act, expertise in the nationally
published MSHA
enforcement Policy, their photos, and detailed
notes of the entire inspection reduced the
citations to 6 non-S&S, low negligence citations.
They admitted that there was a "management problem"
that resulted in the 6 deserved citations. The
inspector then began quizzing the Company's Officers
to answer MSHA's
latest Root Cause Analysis (shades of the 1980's)
questions posed by the inspector. The Company
refused to answer any of the questions on the
grounds that their answers would be used against
them in any future litigation with the agency. They
would not know how the answers were recorded in the
inspector's inspection report because
MSHA refuses to
release the
inspector's notes requested under the Freedom of
Information Act. The inspector agreed with the truth
of that statement.
$afepro's
recommendation is that if
MSHA cannot
educate its inspectors in the Federal MS&H Law and
hold them accountable for adherence to their own
nationally published enforcement policy, it should,
at the least, require the inspectors to return to
the Mine Academy for a course in Constitutional
Law. Perhaps then,
MSHA
could satisfactorily meet its mandate under the Mine
Safety and Health Act of 1977.
Click here to register for the October 2006 MS&H Law
Institute
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May a Federal
Agency Break the Law?
According to the definition
in Webster's Unabridged Dictionary the word "may" means have
permission to. That being the meaning then the answer to the
Title question is a definitive "NO!". Neither The U.S. Bill of
Rights nor the Constitution of the United States grants government
agencies the exception to ignore any Federal mandate. However,
MSHA has used a Department of Justice opinion relative to security
issues raised by 9/11 to ignore the Freedom of Information Act by
denying Inspector's Notes when requested by Production Operators
exercising their rights granted by the FOIA legislation.
The DOJ opinion stated that
information pertaining to matters under investigation or in
litigation should not be given to the requester. MSHA, in many
Districts, has taken the stance that a citation represents
results of an investigation or possible litigation and routinely
denies the request for Inspector's Notes. This allows the Federal
Mine Safety Enforcement Agency to withhold information which may
well be vital in contesting citations and in training their
employees in how to prevent citable hazards. Basically, they are
saying that they can do what they wish and do not have to tell you
what caused them to reach the conclusion to punish you. By doing
this, it allows them to interpret enforcement, without explanation
to the Industry, as benefits them, placing the uniformed Production
operator in the position of taking their word as an exception to
Constitutional Rights.. This results in questionable citations,
increased fines, and increase in overhead while attempting to abate
alleged unsafe conditions just because the bureaucrats say so.
Last week I received an e-mail from a Production
Manager which cuts to the heart of the matter:
"Frank,
>
Please read the article on Page 6 of the September issue of Pit and
>
Quarry entitled What's with MSHA? The short of it says that MSHA's
>
new policy is to deny mine operators the rights to see MSHA's
>
inspector's notes under the Freedom of Information Act!!!
>
1. Is this legal?
>
2. What statute are they hiding this new policy under? It
certainly
>
is not for National Security.
>
3. MSHA is a PUBLIC agency funded by PUBLIC dollars and thus their
>
information/notes should be PUBLIC!
>
What are your thoughts?
>
Thanks,"
It is obvious to me and
others that MSHA Inspector's Notes have absolutely nothing to do
with avoiding terrorism in America and denial of this information to
the Mining Industry is the type of governmental action one would
expect in a terrorist-sponsoring nation, not in the United States.
This is not going
away on its own. Sitting
still for this treatment will place every mining company in this
nation at the mercy of this enforcement agency and open the door for
MSHA to further deny us the basic rights and protection to which we
are entitled as firms in the vital Mining Industry.
The quickest and best
solution I can come up with after talking with Managers and
Executives across the country is to immediately contact our
Senators and Representatives expressing our dissatisfaction with
this "bullying" position taken by MSHA. We should also inform our
Legal Depts. that we will automatically contest all citations
where we are denied "The Inspector's Notes.
MSHA has asked for additional
Inspectors. The Industry must put them on notice that this
"high-handed" treatment by the Agency will result in their
need for additional Solicitors as they force us into the Courts to
ensure that we can continue to mine profitably.
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$afepro,
inc. 8/16/2004 Editorial
Why Do
You Need a Safety Lawyer
You do not need a lawyer to ensure that you
receive your mandated rights under the Mine Safety and
Health Act of 1977! All you need is for your Safety and
Production Officers to understand your entitlements under
the Law and spread this information to your miners.
Unfortunately the Industry has relied for 27 years on
hear-say and the MSHA
Inspectors' interpretation as to what the Law requires.
Because of this, we have found ourselves in situations where
a Law Firm was needed to straighten out the mess we got
ourselves into through sheer complacency about the safety
area of our business. It has been easier for us to ask
someone else than to take the time to read and understand
The Act, 30 CFR and the related National Enforcement
Policies. Hence we have had citations, orders, and
penalties we did not deserve and the same complacency has
allowed many firms to build citation histories which exist
as statistics and have little or no truth at their basis.
Once the fines are paid we have in reality pled guilty to
the offense and statistically are "Federal Law Breakers" who
have habitually continued to violate the same statutes.
Is there any wonder why we now need the Lawyers?
I hear often that companies cannot afford
the expense and time from production to have their key
Production and Safety people trained to meet the demands of
the Safety Legislation. Yet I have to wonder how they afford
the $1,000,000.00+ in legal fees necessary to continue
business after ignorance has entangled them with the
Agency. There is not a good business reason for managing
this way. $afepro,
inc. wants your business; but, if not with us, we want the
firms to go to someone whose approach comes from the
principles of Free Enterprise and not from Enforcement . The
old cliché of "penny-wise and pound foolish" applies to the
way many firms go about attempting to receive this training.
At this moment I know of 4 companies who are sending a total
of 21 people to a Law course presented by a MSHA States
Grants Agency. The States Grants folks do it for "Free".
They will hear the Law as published. The Enforcement Policy
they will hear as it benefits the Agency picking up the bill
for the training. This appears like a man asking his wife's
lover for advice on how to get her affections back! It is
not in the best interest of the Lover to tell him.
An understanding of our entitlements and the
determination to formally challenge questionable paper will
put those legal fees back in the bank and allow us to retain
management of the human element in our businesses. It is
vital to review the Formal Contestment
Procedures to which Sec. 105 of the ACT
entitles us.
Click
for Vital Information on Conferencing Citations/Orders
Frank Adkins, President,
$afepro, inc.
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$afepro
Editorial 7/21/2004
What’s wrong with simply doing
the right thing?
In a recent conversation with an Industry
Manager I have known and respected for many years, he casually stated,
“Frank, we have a good relationship with the Agency. I have gotten to know
(Name of a MSHA Manager) personally and he has helped me do away with some
of the citations we challenged and could not get resolved”.
This took place while visiting a site
where he had invited senior MSHA personnel to familiarize them with that
operation. This has been done by several larger companies over the past
few years. The logistical cost to the company had to be high. Later, I found
myself perusing what he had said and it read this back to me,
“Frank, I don’t have confidence in my employees’ ability to maintain a
safe workplace and to comply with the safety laws. I also do not have
confidence in how to comply with the Law nor confidence in our legal
system. Therefore, I must seek favors from the mandate administrators and
take what “scraps” they hand me because we are socially acquainted”. What
happens when the contact moves or leaves the Agency? Too, that Officer is
empowered to do only what The Act gives him authority to do and
some of those citations were five years old or older. The statute of
limitations on a citation is 5 years. If the Agency hasn’t come to a
resolution by that time, legally the violation no longer exists and is not
chargeable to the site. Relative to these, the Agency manager’s alleged
help did only what the Law granted to the company. It occurred to me that
this is both an expensive and uncertain method by which to do away with
questionable enforcement situations.
Wouldn’t it be more cost and time
effective to train his employees in the requirements of the Safety Law, to
publish company policy on what he expected and required his employees to
do, and to hold his managers , supervisors, and miners accountable for a
safe workplace. He does this with his people’s production
responsibilities.
This could be accomplished in a
reasonable time period and the results would be predictable safety
behavior every shift. The cost would be @ 20-25% of the actual cost of
“wining and dining” Agency people for 48 hours.
I don’t mean that it is a bad thing to
create positive relationships with the Agency people; however, the
relationships should not be the basis for compliance with our legal
requirements relative to our people’s safety. We certainly would not
buy multi-rolls of conveyor belt we did not need simply because we had a
good social relationship with the vendor. Our personal relationships
and our business relationships should be properly compartmentalized.
The productive management approach is
found in the 15th and 16th Principles of
$afe Production:
Breaking the Law is not an option and
$afe Production
is doing the right thing because it is the right thing to do.
Yours for $afe
Production,
Frank Adkins, President, $afepro,
inc.
$afepro Editorial
7/06/2004
Mining, MSHA,
and The National Election
It is now time
for the U.S. Mining and Quarrying Industry to make its business plans for
2005. One aspect of that plan, which cannot be overemphasized, is dealing
with MSHA after the November Presidential
Election. Many of us were pleased when President Bush appointed David
Laurisky as Asst. Secretary of Labor for Mine Safety and Health and he has
made many fine contributions to the Industry's relationship with the
enforcement agency. However, there is another segment of
MSHA with which we must deal. This is the
career, non-appointed part of the agency from the Administrators down
through the Inspectors. This is the bureaucratic portion of
MSHA and has a different agenda from that of
the appointed side of the agency.
The appointed Managers must
develop acceptable channels of communication between Producers and the Agency relative
to the 1977 Mine Safety and Health Act and at the same time carry
out the political agenda of the administration that appointed them.
The Civil Service segment of the
Agency must enforce the mandate, protect their jobs, and make their
enforcement tasks as simple as they can. Many are doing it at this time by
assuming authority not granted them by The Act. In the confusing
and uncertain wake of the Presidential campaign some District Managers,
Regional Supervisory Inspectors and many Inspectors are ignoring National
Policy as published in the MSHA Policy
Manual. By doing this, it allows them to interpret enforcement as benefits
them, placing the uniformed Production operator in the position of taking
their word as official policy. This results in questionable citations,
increased fines, and increase in overhead while attempting to abate
alleged unsafe conditions just because the bureaucrats said so.
Regardless of who wins the Presidency this gives them the evidence needed to
prove to the administration that the Agency is sorely needed to protect
our employees.
The Act gave the Federal
Department of Labor the Authority to publish 30 CFR telling us how we
would obey the Law. As you well know, the Law is not
MSHA. The Law is now 293 million Americans telling the Industry,
Production and Enforcement, how we will practice our trade. The Production
side of our Industry must obey the Law. The Enforcement Agency for
our Industry must obey the Law. We have no authority to make up the
Law nor does the Agency have authority to make up the Law. We have no
authority to interpret the Law. Neither does the Agency. The only
authority to interpret the Law is given by the Constitution of the United
States to the appointed judges and courts of the Nation. We must obey
the Law and so must MSHA, 293 million
American Citizens say so. They are the Law!
The Act, in its "Findings and
Purposes" states early on the reason for the legislation: "Sec. 2.
Congress declares that (a) the first priority and concern of all in the
mining industry must be the health and safety of its most precious
resource-the miner," and Sec 3 defines "miner" as "anyone working in a
mine".
The major error that has been
made relative to compliance with the Law has been on the part of the
Production Industry. Early on, in the late 70's and early 80's the
production people perceived the Agency people as "Safety Officers". They
are not. The Act is specific in categorizing them as "Enforcement
Officers" and giving them the Authority to issue citations and orders to
law breakers.
In Sec. 104 of The Act we are
told:
"Sec. 104. (a) If upon inspection
or investigation, the Secretary or his authorized representative believes
that an operator of a coal or other mine subject to this Act has violated
this Act, or any mandatory health or safety standard, rule, order, or
regulation promulgated pursuant to this Act, he shall, within reasonable
promptness, issue a citation to the operator. Each citation shall be in
writing and shall describe with particularity the nature of the violation,
including a reference to the provision of the Act, standard, rule,
regulation, or order alleged to have been violated. In addition the
citation shall fix a reasonable time for the abatement of the violation."
Have no illusions, the
Inspector's mandate is to find Production Operators who are not complying
with the Law and its Standards and to punish them for it by issuing
citations which carry under the present assessment policy fines up to $65,000.00
per instance. The safety of our miners and quarrymen and compliance with
the legislation is our responsibility under The Act To ensure our
compliance Sec. 100 provides individual Operator fines of up to
$65,000.00 and terms of up to 5 years in federal prisons for personal "willful
and knowing" violations. 293 million Americans agree to these conditions.
One of the major reasons for the
Production Companies' misinterpretation of the Mandate and their resulting
problems with the Agency has been that they did not know what the
enforcement policies are concerning the Law. Bearing in mind that
MSHA must also obey "the letter of the Law",
the Agency formulated the national enforcement policies and published them
to both the Inspectors and the Producers. This defined exactly how The
Act, 30 CFR, and the Standards are to be enforced. Because of our
commitments to mining, processing, sales, and delivery of the product many
of us overlooked how the Law was to be enforced. We have relied on what
District Managers, Regional Supervisory Inspectors and Inspectors have
told us. We have accepted their opinions as MSHA
Policy when in reality and legally the only binding enforcement
procedures are in the published and available National
MSHA Policy Manual. These procedures have
been agreed to by the Congress and accepted by the Production Industry as
the guidelines for enforcement. If we are not familiar with it and cannot
cite it as authority we are doomed to "punishment by opinion" and have
none to blame but ourselves. Remember that this legislation has been in
effect for 27 years because ignorance killed 91 miners in the 1972
Sunshine Mine Disaster.
What many of us interpret as abuse by
the Agency is not abuse; but, that the Industry on both sides of the
equation does not know the current mandate and policy rules governing our
trade. None of the Law may be changed without an "act of Congress" and no
enforcement policy may take effect until it is published and the Industry
has had a reasonable time to assimilate the information and to comply. Our
major protection is to know the Law as well if not better than the Agency
representatives. This is why $afepro,
inc. publishes a Law Manual containing all of the Law and Policies,
schedules Law Seminars at company selected sites, and annually hosts 2-3
MS&H Institutes for the Production Industry. Compliance is a daily
responsibility involving ourselves, our managers, our supervisors and our
Miners and Quarrymen. A safe workplace at the beginning of each shift
ensures no Agency interdiction and interruption-free production.
There is a big difference between the
motives of the Producer and the motives of the Bureaucratic Agency.
The Production Industry operates on
"The Profit Motive", getting minerals to our customers in a manner that
puts spending money in the bank. The more efficient we are at producing
profit the better our chances are for raises, promotions, and satisfying
our investors. The Operator's responsibility is to produce a profit from
every job.
The Agency does not operate from that
motive. Its motive is enforcement of The Act. The Inspector's
product is Citations Producing his product ensures his raises, promotions,
and his management's satisfaction with him for enforcing the Mandate.
By increasing the number of
citations, orders, and indictments during this
election year and into the newly-elected administration's term, the Agency
provides statistical proof to the Administration that it must endure and grow to keep
the Mining and Quarrying Industry from killing and injuring its people.
In positioning themselves to avoid
unsatisfactory enforcement proceedings, it is essential that the Companies
have a thorough understanding of The Act and all of its
ramifications. Whatever means you use to ensure you have that planning
knowledge is not the issue. The issue is for our Firms to control their
own destinies during the next Administration without falling prey to
questionable enforcement tactics. The Production Industry must know the
"Rules", hold itself to a high standard of compliance, and hold the Agency
to the same standards.
This will keep this Nation's most vital Industry
producing minerals profitably in the coming years.
Yours for $afe
Production,
Frank Adkins, President, $afepro,
inc.
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