Jim Sharpe's research assistance and editing suggestions for this report are much apprecciated! FMA

Questions about MSHA's May 26 Impact Inspection

This is a direct quote from the agency's June 26, 2014 press release, "MSHA began an impact inspection on May 13 at ***Sand****, in California. MSHA inspectors issued 19 citations and 17 orders to the mine operator."

At the same time this press release hit my mailbox, a report from Sharpe's Point appeared. According to the S. Point article, "***Sand**** in California picked up 36 citations and orders (C/Os", 21 of them written as significant and substantial (S&S), during MSHA's visit.  The alleged violations included failing to repair a haul truck operating with six severely damaged tires, continuing production after receiving an unabated unwarrantable failure order and allowing miners to clean a conveyor tail pulley while the belt was in motion.  Enforcement action was also taken because the plant manager lacked new miner training, a repeat violation.

Operators who willfully and knowingly allow their employees to continue work in identified hazardous situations should be subjected to the fullest extent of the Law. My agitation is why MSHA did not order the Operator to correct these deficiencies during the 2-month-long compliance follow-up period that began immediately after the Mine's last Impact inspection in March? The follow-up began the same day, according to MSHA's database on the Mine!

MSHA indicated that it impact-inspected this mine based on four concerns: Operator tactics, hazard complaints, plan compliance issues, and enforcement history. This is the small Mine's 4th impact inspection in the last ten months!

I was curious as to why this 7 man Sand Operation warranted 4 impact inspections in less than 12 months. It appeared that nothing official or unofficial had been published about an alleged scofflaw sand operation in California and I was curious about their citation history. MSHA's data retrieval system was visited to see what their Safety and Compliance record was for 2013-14. 5 lost time accidents had been reported for the 18 month period. A miner was found unconscious in April and the Operator has yet to determine the cause, which could well be non-work related. An incident in February 2013 that MSHA apparently forced the operator to report is in dispute. "Our determination after the fact shows no evidence supporting accident", the operator said. None of the 5 alleged injury reports contained information which an "experienced observer" would identify as reasonably requiring the Miner to miss work.

I also could not determine the legitimacy of the citations and orders and was particularly surprised at finding 17 citations and 2 orders issued during this period for violation of a single Mandatory Standard. This Standard 56.14107 says, Parking procedures for unattended equipment - Mobile equipment shall not be left unattended unless the controls are placed in the park position and the parking brake, if provided, is set.

"When parked on a grade, the wheels or tracks of mobile equipment shall be either chocked or turned into a bank."

What is so shocking to me is that MSHA issued 19 citations and orders for hazardous violations which it encourages its inspectors to require Operators to perform during MSHA's brake testing of mobile equipment! See Recommended Operator Policy for "Brake Testing".

It is unconstitutional and illegal for a government agency to dictate that the Operator ignore the Law by hazarding miners in order to comply with the inspector's illicit and dangerous brake testing procedures! If an injury were to occur during the brake testing Operators would learn very quickly that MSHA does not have the power or authority to order the Operator to hazard his people. It would be the Firm which is at fault criminally and civilly. The Company is the party that will be sued by the victim and his family.

There must be employees on the site during each inspection to make sure that the Company is complying with the published Law and not some fictionally-based "gobble-de-gook alleged hazard".

MSHA is under no burden to tell you that the citation is based on fiction. If you do not find it and follow the due process the allegation stands.

You can only rely on yourself, your Firm, and its Miners to ensure that you are in compliance with the Law!

The October 20-24 MS&H Law Institute is almost half-full.

Register your people to ensure a seat(s) for the knowledge needed to ensure full compliance with the Law and enforcement Policy!