$afepro thanks Jim Sharpe, Sharpe's Point for the opportunity to publish this article from the excellent Jan. 2011 edition of the Sharpe's Point Newsletter. For those who have not yet subscribed to this necessary newsletter call SUBSCRIPTIONS: 703-379-0652 or email SharpeMedia@verizon.net . $afepro, inc. believes that this is the most valuable source for Industry compliance information for 2011!



The Spanish philosopher George Santayana once said, "Those who cannot remember the past are condemned to repeat it." The wisdom of that observation has been made painfully clear to MSHA, which, red-faced, has had to pull back a Program Policy Letter (PPL) it issued in November.

The Agency may have been spared the exercise had it simply done its homework on the surface and underground standards in Metal/Non-Metal (M/NM) that require competent persons to examine working areas at least once each shift. They are 56.18002 and 57.18002, respectively.

The Agency lit a fuse when it issued a PPL to revise its policy on how the two standards are to be implemented and enforced. The policy change, MSHA said, meant that henceforth hazardous conditions must be documented. This was a new mandate on top of the basic name, rank and serial number requirements that already existed. Operators exploded because the change gave MSHA access to the mine's "dirty laundry," as one safety professional put it, something he said the Agency is not entitled to.

For old-timers, the dust-up had a familiar ring. In December 1994, former M/NM Administrator Vern Gomez went down the exact same road. There were protests then, too. But Gomez had another problem: his timing was bad. The fall elections had just taken place a month before, sweeping into power a Republican majority in Congress bent on reducing the regulatory burden on employers.

Two months after Gomez's ill-fated PPL was released, MSHA issued a news release to announce a new procedure whereby draft policy changes would be submitted to stakeholders for a 45-day review. Gomez' policy letter was officially withdrawn, along with two others, but the new one sent out for comment contained the same provision about recording hazardous conditions which had been so onerous to operators.

Fast-forwarding to August 1996, released a PPL on M/NM workplace examinations that excised the troublesome language and was to be the final word on the standards for the next 14 years.

The latest incarnation came last Nov. 10 without any advance notice or opportunity for stakeholder comment. Surprisingly, MSHA received little pushback initially. M/NM Administrator Neal Merrifield said Nov. 22 that only Sharpe's Point and one operator had expressed concerns. MSHA said later that one of the complaining operators was Vulcan Materials Co., but the timing of the company's complaint was not made clear.

Virtually overnight that all changed, though. By Nov. 30 and with the Thanksgiving holiday intervening, MSHA had thrown in the towel: Assistant Secretary Joe Main told an operators' group in North Carolina on that day that the policy was being pulled back for further review. "To my surprise," Merrifield said last month, "there was quite a bit of objections to it."

Conflicting Stories on PPL's Origin

A reliable source inside the Agency said the PPL got legs after one or more inspectors clashed with an operator, who recorded problems seen on workplace examinations but refused to provide the paperwork to MSHA's authorized agents.

Merrifield was unequivocal in saying that account was not true. Rather, the change was intended to make mines safer. "[I]f all you do is . . . [document] that, 'Hey, I had somebody take a look at this,' how do you know what hazards are being found or, better yet, have they even been corrected?" he stated. He also said he believed the intent of the standards was to record hazardous conditions, and noted that is how workplace examinations are currently documented in Coal.

Operators were having none of it, though. The safety professional who didn't want his company's 'dirty laundry' exposed was especially critical. He pointed out that MSHA was free to inspect any area previously evaluated by an examiner. But "[g]iving them our inspection findings is like pointing them to our dirty laundry if we have not fixed the problem yet, or the finding may not have been a problem once it got investigated," he said.

He also suggested that MSHA's awareness of any suspected hazardous conditions might even have a deleterious effect on safety and health. "Letting MSHA have the results of our self-inspections will result in the reports becoming vaguer and less helpful in addressing safety and health issues," he contended. "It may also put MSHA on a wild goose chase for issues that were not problems to begin with." Others had additional concerns. A second safety pro told the Agency, "A record of violations is a serious matter. If this were to be required, significant changes would be needed in training and staffing to ensure truthful, detailed and accurate reports. This added burden on operators can't be taken lightly."

Jay Stem of the North Carolina Aggregates Association said his members are concerned that what may seem trivial to operators may serve as the basis for enforcement action by MSHA inspectors. "Somebody writing something down and not really thinking about it," he said. "It's not a big deal, but the inspector makes a big deal out of it and says, 'Well, you should have corrected this within the same day instead of after two weeks.' They're just worried having that information written down and then have MSHA beat you over the head with it."

Operators have also objected that the PPL was released without the opportunity for stakeholder notice and comment. In support, they cited the 1995 precedent mentioned earlier. The new requirement might also have violated the Paperwork Reduction Act. As of Dec. 21, the PPL was still under review. But operators should not be surprised to see this requirement rise again and soon. Sentiment for it is believed to be strong within the Agency. Merrifield said he has had "several District Managers complain to me about this not being available." As noted, the requirement already exists in Coal, and recently MSHA took steps to strengthen the reporting requirement still more. A proposed rule issued Dec. 27 would require workplace examinations under Part 75.363 in Coal to include not just a recording of hazardous conditions but violations of mandatory health and safety standards as well.

Merrifield may have provided a clue into the future for M/NM operators. "I think it constitutes one of the elements that any good safety and health program would constitute: that you do check for hazards and you do list the hazards and you correct the hazards and you have a program to do that." is scheduled to release a proposed rule on safety and health management programs in May. ($afepro reminds you that the Operator is under no Constitutional requirement to prove to MSHA that the Firm is “telling the truth”. It is the responsibility of the federal enforcement agency to prove they are lying. Do not allow your 1st and 5th Amendment Rights to be denied you by this misguided renegade agency.

$afepro recommends going to the homepage article "MSHA baits M/N Operators into "self incrimination"! for additional comment and background on this PPL. This is another glaring example of the unconstitutional and illegal “enforcement by instant rulemaking” currently in favor by the mine enforcement agency! You need to call your representatives and Senators about this. $afepro sees little effort forthcoming from MSHA to alleviate much of the falsified enforcement the agency favors if Congress isn’t aware of the M/NM Surface Industry's dilemma and "eye-balling" the agency.