Email from Small Operator This Week

(Names and locations have been changed to prevent Retaliation by MSHA)

I wanted to share with everybody what has been occurring at our small plant. On Monday “Mr. inspector” with MSHA showed up at the site. He inspected for approximately 4 ½ hours on Monday and was on site for 7 hours yesterday.

On Monday we received a citation for having a pickup parked on a 4% grade that did not have the parking brake engaged. This is a citation even though it is an automatic transmission and the wheels were chocked. I feel this is a little crazy, but the law states it does need to be chocked.

Now to the more interesting part of the inspection on Monday which involved “Mr. inspector” wanting to inspect a water truck that was parked on mine property since last fall when it was used. Our “Aggregates Manager” told him that it had been parked since last year and that we were not going to use it and that he was not trained to run the truck. “Mr. inspector” then told “AGG Manager” to have somebody from town come out and perform the pre-shift inspection. “AG Manager” did not call anybody to perform the inspection on Monday but on Tuesday when I was at the mine site “Mr. inspector” told me that I had to have somebody perform the pre-shift so he could inspect this unit. Reluctantly I had a trained operator come to the site, inspect the truck, and he tagged the truck out because there was a crack in the windshield and the windshield wipers did not work. “Mr. inspector” then inspected the truck and informed me he is writing a citation for the cracked windshield and the windshield wipers not working. “Mr. inspector” informs me that this should have been tagged out last fall for these two issues. I asked him if he now expects us to predict the future when it comes to equipment issues arising and he said there is no way that the windshield could have cracked and the windshield wipers become nonoperational over the winter, so obviously it was parked like this last fall. In short, Midwest winters are very calm with no freezing temperatures that could cause a small rock chip to turn into a crack and we all need to start calling psychics to predict equipment issues before we park them after every shift. I demand a lot from our employees when it comes to safety but I am not going to require them to be psychics.

Also on Monday “Mr. inspector” inspected the road coming into the mine. This road comes off of the county line road but is not owned by us and is also used by the local farmers to access their fields. There was a section of the road which “washed out” this spring due to spring runoff. We corrected this issue so we could access our mine. “Mr. inspector” is writing us an S&S citation for the road not having berms for approximately 900 feet of length due to the slope of the ditch. We pointed out to him that we are not the owners nor are we the only users, but this goes in one ear and out the other. The more interesting thing about all of this road issue is that this road has been in the exact same condition for approximately the past 25 years.  A large aggregate producer worked in this pit for several years until we moved into the pit a little over 2 years ago. We can all do the math to figure out how many times a MSHA inspector has driven down this road the past 25 years.  I talked to an employee who was employed by the previous producer and who is employed by us now, and he does not remember one time of there ever being an issue regarding this road brought up by MSHA. It is amazing how all of a sudden this can be an S&S citation even though not one previous inspector brought the road up in the past 25 years.

I have found policy in the MSHA manual that I am looking into right now. One of the main points it states is this: “The operator has the legal right to bring the road into compliance with MSHA regulations. “ I am going to have a tough time telling the owner that he isn’t going to be able to get his farm equipment down the road because there is going to be a 32” berm on both sides of the road that he is going to be running into with his large farming equipment. “Mr. inspector” is going to be on site today watching us build the berm and he informed me that if we do not begin building the berms today that he will shut the mine down. Thus, we have no choice but to mobilize equipment to the mine and begin building the berms even though I told him that we are going to contest the citation. Mr. Inspector is getting what he wants because if we contest the citation and win it does not do any good because we will have already spent approximately $15,000 hauling material to build a berm to prevent the mine from being shut down.

“Mr. inspector” also wanted to inspect a man lift that was tagged out due to the horn not operating. We told him it was tagged out but he said he wanted to inspect it. We should have told him that he could not inspect it due to it being tagged out be he insisted that we do the pre-shift examination and then operate it for him so he could inspect the man lift. There was not any citations wrote for this unit but once again it shows the techniques they are trying to use.

I will keep you all informed of how this progresses but I wanted to share this with you because I could not sleep at all last night thinking about all of this so I thought maybe I could save somebody else from a sleepless night. I am not sure if this is possible when dealing with MSHA but it is worth a try.

Closeout Report by Operator

 

Good afternoon members – I am responding to everybody like I had promised to do. I am going to try to keep this as short and to the point as I can, but we all know how tough that can be to do when you are dealing with MSHA. To start on a positive note, “Mr. inspector” inspected a different one of gravel pits on Wednesday. He conducted a full health survey and also a full inspection. He was not able to find one citation. Our employees do an outstanding job day in and day out, so outstanding that “Mr. inspector” was not able to find even a bogus citation. We all know this is not easy to do and this is why I commend them for being able to accomplish this. 

We had our close out conference this morning to go over the two sites inspected the past several days. Here is what occurred at the close out meeting for the site that was inspected on Monday and Tuesday that received 4 citations.

In short, the automatic transmission pickup that was in park and chocked received a non S&S citation for not having the emergency brake applied. However, “Mr. inspector” went on to explain this will be open for review for special assessment because it was cited under a standard encompassed in “The rules to live by.”

We were also cited for using a modified section of a boom from a dragline that was also used by the previous operator. This is an S&S citation under 56.14205. In his write up he explains that the Crosby style clips were not properly installed and that the 5/8 inch wire and modified boom section were being used beyond their design capacity. I asked him how he knew it was being used beyond their capacity design and he responded that if I could prove to him that it wasn’t being used beyond the manufactures capacity he would revisit the citation. I then informed him that it isn’t my responsibility to prove to him it isn’t being used beyond design capacity; he is the one stating it is being used beyond design capacity. Thus, we are guilty until proven innocent. He also stated this will also be reviewed for special assessment because the standard was also included in “the rules to live by.”

As I mentioned in my previous email we received an S&S citation for the road coming into the mine. I appreciate the case laws and information I received from all of you. I had these in hand and he wouldn’t even acknowledge them. I pointed out the MSHA Policy on Jurisdiction Over Mine Roads to “Mr. inspector” and went over each and every point with him. We all know this did no good at all. It even gets more interesting. He required us to install the berms on the road which we do not own and which passes through private farm land. I began to do this in order to get the citation abated because I only had one day to do so. I contacted the landowner to inform them of what I was doing. I then received a call back from the landowner telling me that I do not have the right to install the berms since I do not own the road. I talked the landowner into letting us install the berms, so we continued to install them until late last night. The thing that I pointed out to “Mr. inspector” in the MSHA Policy manual is that it states the following in regards to whether or not the road is considered mine property. It states, “The operator has the legal right to bring the road into compliance with MSH regulations.” It is very obvious that I do not have the right to do this, and this was proven by the very upset landowner. “Mr. inspector” comment was, “It has not been legally proven that you do not have the right to bring this road into MSHA compliance.” Once again, we are guilty until proven innocent.”

We also received a citation on the water truck for the items I discussed in my previous email. My exact words to “Mr. inspector” were “I expect a lot out of my employees when it comes to safety, but I am not going to require them to be psychics.” “Mr. inspector” said, “I am not asking them to be psychics.”  I don’t know what else he could be asking. I then asked him if he has ever gotten in a car or camper that has been sitting for several months, and came to find out that it wasn’t running perfectly when he went to use them. “Mr. inspector” replied, “No, I haven’t. I guess I am lucky.” So now we need to be psychics and lucky!

The reason I tell you all of this is because I know how valuable some of your comments and suggestions have been to me. Furthermore, it has given us the opportunity to see other issues coming down the pipe from MSHA.  In summary, I do not know what the point of a close out meeting is because we have never had success changing a citation or even changing the wording of false statements in the citation. “Mr. inspector” even said that I was arguing semantics when I was discussing the false wording. I feel the only benefit of a close out meeting is to gather information for the contestment process.

Have a great day and thank you again for all of the responses. We truly are all in this battle together.