$afepro and the Industry thank Sharpe's Media for permission to publish this timely and important article about a June 21 field hearing held in NC's mining capital. If you are a subscriber to Sharpe's Point you received this article 4 days ago! With all due respect to Mr. Lichtenfels, I feel that MSHA showed disrespect to the Congress by having a "lower ranked assistant " represent it without the authority to commit the agency to change!

HOUSE PANEL PLEDGES TO BRING BALANCE TO MINE SAFETY

At a congressional field hearing before an engaged audience of mine operator supporters, members of an influential House subcommittee pledged to restore balance to federal mine safety activities and programs, taking MSHA to task in the process.

Describing MSHA as an agency that "has sort of spun out of control,"Florida congressman John Mica (R) said, "It's nice to talk about it, but you also have to act on it." He was referring to the need for mine safety reform.

Mica's Government Operations Subcommittee, a part of the Committee on Oversight and Government Reform, heard testimony from three aggregate producers and an MSHA official June 21 in Bakersville, NC. About 100 people, many affiliated with the North Carolina Aggregates Association (NCAA), attended the gathering. It was called at the request of first-term congressman Mark Meadows (R-NC).

Congressional field hearings tend to be more informal than those conducted on Capitol Hill, and this one was no exception.The audience broke out into laughter on several occasions, and applauded when Rep. Morgan Griffiths (R-VA) decried the loss of what he called equity, or common sense interpretations of the law, in favor of a strict "black letter" interpretation.The eruption led Mica to deadpan that the onlookers were out of order.

Mica's focus was on the Mine Act itself. He asked MSHA's witness, Deputy Metal/Non-Metal (M/NM) Administrator Marvin Lichtenfels, if he thought the statute was out of date and what overtures MSHA has made to Congress to update it. One of Mica's concerns was MSHA's interpretation that the law requires an inspector to write a citation if he or she believes a violation has been committed. Mica seemed to favor allowing a problem to be corrected and citing only if it isn't.

Lichtenfels, who has been with the agency for five years, said he wasn't aware of any such efforts. That led Mica to turn to Meadows, subcommittee vice chairman, and task him with querying the Obama Administration about problems with the 36-year-old law. Mica also asked Meadows to coordinate his effort with the Committee on Education and the Workforce, which has jurisdiction over MSHA.

That job was made easier due to the presence of Rep. Phil Roe (R-TN), who chairs a subcommittee within Education and Workforce that covers a number of issues, including labor. Neither Roe nor Griffiths are on Mica's subcommittee. They were there because their congressional districts border on Meadows' district in the western part of the Tar Heel State.

The possibility of an audit by the Government Accountability Office was also raised by industry witness Sam Bratton, NCAA President and President of Wake Stone Corp. Bratton commented that the system for mine safety needs to be changed, in part because mine operators are believed to be guilty of violations of mine safety standards until proven innocent. Under the law, operators are required to abate alleged violations and only afterwards can they contest the validity of enforcement actions. Mica said the subcommittee would consider the request.

During the hearing, a PowerPoint slide was displayed that, in part, showed a sharp jump in civil penalties beginning in 2007. Lichtenfels explained the increase was due to a revision that went into effect that year in MSHA's Part 100 penalty assessment regulation.  Inferring that Congress might seek a change, Meadows asked the MSHA official if he thought safety would be negatively affected if penalties were returned to pre-2007 levels. Lichtenfels replied that the regulation was being revised, but did not mention it was not to lower fines.

Inconsistency Tops List of Complaints

Inconsistent enforcement was foremost among the complaints put forth by the industry witnesses. Bratton lamented that MSHA was making "new interpretations of existing standards." Even though MSHA standards state otherwise, he said, enforcement officials demand that non-mining personnel complete comprehensive training and insist on inspecting mobile equipment for safety defects even though the equipment is tagged out of service for repair.

Bratton recalled the time a customer truck driver was tagged with an imminent danger order when he climbed up the side of his truck despite strictly adhering to instructions in an MSHA video to do so using three points of contact. Shown the video, MSHA disregarded it and refused to vacate the citation, he said.

Several years ago, MSHA began applying its berm standard to weigh scales, demanding that side rails which guide trucks over the equipment be at mid-axle height. A letter introduced into the record from the National Stone, Sand & Gravel Association described "millions of dollars" unnecessarily wasted due to MSHA demands to provide raised barriers on scales when the mandate produces "absolutely zero benefit to worker safety."

Mack McNeely called attention to MSHA's efforts to protect miners from falls while performing maintenance high off the ground on mobile equipment. Most such equipment is built to national and international safety consensus standards, which do not require handrails as fall protection. Nonetheless, according to McNeely, beginning about 2009 MSHA started to insist that operators install handrails along decks and walkways of mobile equipment.

McNeely's aggregate operations were facing some $54,000 plus installation expenses to comply when MSHA issued a bulletin saying essentially that if the equipment was built to recognized standards, the agency would deem the equipment compliant. Regardless, in May 2011 McNeely said he was tagged with a fine specially assessed at $6,300 after an inspector observed a miner on an excavator without fall protection. Its written assurance ignored, the agency has refused to vacate the citation.

McNeely's experience led him to offer a vivid example of how such inconsistency could work in everyday life. Speaking metaphorically, Meadows asked him, "Do you understand all the speed signs out there, or are some of them hidden behind the bushes?"

"The short answer is no, we don't," McNeely replied. "It's more like, instead of having a speed limit, the signs say 'Travel at a Safe Speed.'  So if you come through Bakersville, the safe speed could be one thing. If you go through Spruce Pine, the safe speed could be another."

"So it's up to the police officer to decide?" Meadows asked.

"Exactly, in some cases it's things as iffy as, say you were in a turn lane to turn left, you get stopped, and the patrolman says, 'Your turn signal blinks too slow.'  And you say, 'Well, my car's a brand-new Toyota and it's been designed by all the safety standards.'

"And he says, 'I think it blinks too slowly, it's a hazard. So you need to fix it.' Then before you fix it, you get a bulletin that says your turn signal's fine."

Fully aware of operator complaints about inconsistency, Lichtenfels cited agency guidance on guarding and fall protection as successful examples of how MSHA is trying to deal with it. He also remarked that training for inspectors has been upgraded, and a new biennial training program has been launched for field office supervisors. Stakeholder outreach and education now occurs in advance of safety and health initiatives, and training materials associated with these initiatives that are made available to inspectors are also web-posted for the benefit of operator personnel.

Other Issues

While inconsistency was a front and center concern, it wasn't the only one. Jeff Stoll, Safety and Health Manager for the Quartz Corp., complained about what he described as the "triple penalty" economic burden of abating the citation, hiring a lawyer to fight it and then paying the fine.  He called MSHA's decision to cut funds from the state grants miner training program "a step in the wrong direction for safety."

He asked that a percentage of MSHA fines be placed into an escrow account managed by the agency's Small Mine Consultation Program, which provides compliance assistance independent of MSHA's inspectorate. Stoll also said MSHA's emphasis on miners rights was hindering companies' ability to discipline their workers. 

Bratton recommended a bigger focus on training, more collaboration to assist operators with their training programs and a performance-based inspection process whereby operators with good safety records receive fewer inspections.

He also said MSHA's adversarial relationship with operators must change. He took direct verbal aim at Lichtenfels to make his point.  He recounted an incident about which he sought relief from MSHA, only to be told by the Deputy Administrator, "You're still killing people, and so we're going to continue to do what we need to do."

Griffiths raised a concern about a citation and penalty quota system. Lichtenfels said no such system existed at the agency. That led the congressman to probe more deeply by asking if there was a policy that amounted unintentionally to a quota system, such as giving promotions to inspectors who write the most paper. For example, he said a state police agency inadvertently encouraged troopers to write more citations by rewarding them with new patrol cars when they did. Lichtenfels denied knowledge of a de facto system, but agreed to look into it and report back to Griffiths.

To ease concerns about possible MSHA retaliation against industry hearing participants, Mica asked that any such occurrences be reported to the subcommittee immediately.  "I guarantee I will handle those people," he said. "If they want to talk about retribution, I know how to provide it."

MSHA's M/NM leadership had been scheduled to meet with aggregates representatives from Virginia and the Carolinas on June 13, but agency officials postponed the meeting to prepare for the hearing.