Citation & Equitable Enforcement Folio
It is sad that the Industry's Federal Enforcement Agency's national inconsistencies in following the Mandate of the 1977 ACT forces us to take a "defensive stance" in dealing with its Managers, supervisors, and inspectors. The reality is that we must! The Industry must keep a safe workplace and know the LAW as well if not better than the Agency's people. This folio and the research that went into it from companies across the U.S. can aid each mining firm to identify the enforcement inconsistencies and insist upon even enforcement and equitable treatment from each MSHA District.
There Is A Good Business Reason For Doing This And Using This Information!
(Pushing for "S MINER Act"!)
You could be next!
This is a ten man operation, family owned and just another in the list of small mines closed byMSHA for no good reason other than its own agenda! $afepro
9/21/07, 9:38 EST-Thanks to Adele L. Abrams, Esq., CMSP
MSHA (District 1 coal) has shut down an entire mine over a non-S&S citation that the judge deemed "low negligence." They had a Petition for Modification granted (in effect) for the past 18 months, allowing them to use ventilation in lieu of seals. MSHA is now demanding that they travel an abandoned area, to inspect the defunct seals, even though it only has one escapeway (due to reconfiguration of the mine). Even the inspector admitted under oath that this was more hazardous than the practice of not examining this area. They were cited under the weekly seal inspection standard. Question is, what were they expected to do since they were not required to maintain these seals because of the Petition for Modification.
We had an expedited hearing on Tuesday but won't get the judge's written decision until sometime next week. In the meantime, the mine has been closed (and miners put out of work) for over a week now. Things are definitely out of whack here!
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams PC
4740 Corridor Place, Suite D
Beltsville, MD 20705
MSHA releases "Hard-to-comprehend" revamped informal conference procedure! It appears to deny legal rights given in 30CFR Part 100!
See the Program Information Letter at
Citation Conferencing/Contestment Procedure will be covered in-depth at the Oct. Institute.
Today this Housekeeping Citation has a $9882.00 fine
for the average size M/N Surface Site!
Click Thumbnail to examine the citation.
In 2004 the fine was $629.00.
If you and your people do not know why or how it could have been avoided, you need to register for the Oct. 2007 MS&H Institute or schedule a MS&H Law Seminar for your site.
Call 828-766-6611 for info and scheduling for Seminars.
(Update to 4/4/07 at end of Report)
MSHA's Wearing Jack-boots and Stomping
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
This was received by $afepro on 4/4/07 from an impeccable source. All identification has been removed to guard against agency intimidation of the Source.
The Industry Must Stand UP!
The Mining Industry's Executives, Managers, Supervisors, and Miners must feel they are back on the elementary school playground. The bully this time is the MSHA inspector backed by his regional and district management. The bully's threat is, "if you don't do what I say, I will close you, make you pay huge fines, criminally prosecute you, or at the least drive you into court!"
It is unconscionable how many Firms are bending to it with the excuse of "not causing more trouble with the agency!" The IV Amendment of the US Constitution states,
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
This places the responsibility of proving you wrong on MSHA! There is no burden for the Company to prove to MSHA that it did not break the Law. If we assume the position of placating the bully then his demands only get more untenable.
The solution is to have a safe workplace, require our people to follow our safety policies, read and understand the Standards, MSHA's own nationally-published enforcement policy, and trust our experience and judgment. There is no good business reason to ask the inspector or MSHA for permission to do this. The Constitution and THE ACT give us the responsibility and right to do this!
More to come!
MSHA enforces by Decree?
$afepro has received a report from the Mid-west of a successful Formal Contestment relative to a guarding citation. The Company's successful defense was "no accidental pinch-point exposure to miners and that the condition cited had been like that for 20+ inspections".
MSHA sent them a letter stating that the citation had been dismissed and that on future inspections citations would be issued on the stacker if the abatement procedure stated by the inspector in the withdrawn citation was not followed.
During a recent inspection the condition (which the Company felt unnecessary to alter) was cited S&S (104(d) (1)), unwarrantable failure based on the MSHA Letter of notification of intent.
MSHA apparently based this on "notification by letter" informing how they planned to enforce the guarding standard on the particular machinery. Their action appears based on the NOLICHUCKEY SAND CO., INC. CASE decided by the FMSHR Commission in 1999.
What the Production Operators' stance must be in this sort of situation is that existing Constitutional Guarantees place the burden on MSHA to prove that a probable (not possible) hazard to miners exists in the situation. Constitutionally, only then can MSHA require the Operator to take the abatement action.
Federal agencies do not have Constitutional authority to enforce by decree. If the Industry continues to ignore its Constitutional protection relative to MSHA enforcement, it will find itself spending unnecessary millions on safety repairs based only on the questionable hazard evaluation made by MSHA’s enforcement officers (Inspectors).
Here is a reply from a leading Mine Safety Lawyer!
MSHA's Real Mission
I thought it might be of interest to you that I am in the middle of an inspection and the inspector came out and told me that an interoffice memorandum had come out asking "why inspectors are not writing more citations?". He had mentioned that although they do not have a quota the implication was that they should be writing more, he also stated he felt the truth was that plants were getting better at complying with the law.
Industry Production Supervisor"
$afepro has removed the Supervisor's identity and location to prevent anticipated harassment from inspectors for his sharing this info with the Industry!
MSHA is our Friend?
Enforcement Agency throws Constitutional Rights out the window!!!
E mail Received 7/12/06
"My first sand client just got a Pattern letter - and they had a great safety record before MSHA went on the warpath, issuing Ds and putting them in the chain. Interestingly, several of the citations referenced as the reason for the "pattern" are still under contest! Yes, that's right, they are not finally adjudicated. I suppose that you are now guilty until proven innocent. In addition, the so-called pattern included citations as diverse as equipment defects, missing handrails, workplace examinations and safe access - hardly a "pattern" of the same type of violation, in my opinion.
Watch this space for further details . . . we sent a request for a conference with the District Manager and will see what hoops they require the mine to jump through before releasing them from the threat of Pattern."
Adele L. Abrams, Esq., CMSP
MSHA Solicitor's Office to strictly adhere to new minimum civil penalties!!!
|Darby Mine Tragedy Data|
Immediately Reportable MSHA Accidents and Injuries
(This means within 15 minutes!)
What Must Be Done!
The Mining Industry, both Coal and Metal/ Nonmetal are having a rough 2006. MSHA has begun it's "deniability spin" to avoid responsibility for the W. Virginia tragedies. State and Federal office holders shouted for immediate stricter enforcement. The results of this furor have been unnecessarily punitive. The mandated fairness and evenness of enforcement set down in The Act will continue to be ignored by the agency's "oversight committees" in Congress. Less than 1% of the Mining Companies' failed to "do the right thing" and that resulted in useless deaths and tragedy for our Mining families! Now the entire Industry is being punished for the failures of a few.
It is time to reassess the safety of our Mining and Quarrying (surface and underground) workplaces and:
1- immediately take steps to remove identified hazards to employees
2- remove hazards each shift before beginning the production process
3- ASAP educate and prepare our people (hourly-management) to handle the aggressive enforcement effort by the agency
4- closely examine each citation the inspector attempts to issue
5- formally contest each citation with which you disagree!
Failure to do any of the above will result in loss of production and expensive, involved attempts to get MSHA's heavy, unfair enforcement foot off the neck of your Company.
The Production Industry must continue to do what it has done so successfully in the past decade; provide safer workplaces to prevent injuries and fatalities in our Trade.
Just received from the West Coast!
"A source close to MSHA indicated to me that the current Coal "safety stand down" is likely to be implemented for Metal/Non-Metal in about two weeks or less. It is unclear at present what the message from MSHA will be for our type of mining operations, but knowing the work product of the agency it will likely belabor the obvious. It might be a good idea to promote our own version to (a) beat MSHA to the punch (b) create message points that are more specific to our operations and c) display solidarity and support for our fallen mining colleagues and their families.
Editorial: I think it is very important for us (i.e. operators) to take credit for the positive strides in safety that our company and our industry as a whole have accomplished. Certainly we will take the blame if things go wrong.
West Coast Safety Officer"
This is an excellent proactive approach! The above 5 steps can be easily implemented.
MSHA's Credibility Crisis
What reasonable grounds does MSHA have to request a "Production Stand-down" for the Aggregates Industry? This graph of the reduction of incident rates from 1989-2004 shows a dramatic drop in injuries and fatalities from under 10 in 1989 per 200,000 manhours worked to under 4 in 2004. This was accomplished in just 5 years! MSHA's own figures bear this out. This was not done by MSHA; but, by the Production Industry's investment of resources in realistic training and safe workplaces!
* 2004 M/NM TCI-3.55 *OSHA 2004 - avg. all Industries - 5.3
MSHA's Identity Crisis II
An MSHA inspection is going on at a western Aggregates site today. It has lasted two days so far.
A citation was issued on unguarded conveyor return rollers. The Company Officers twice quoted the MSHA Policy Manual, Vol. IV to the Inspector, "Conveyor belt rollers are not to be construed as "similar exposed moving machine parts" under the standard and cannot be cited for the absence of guards and violation of this standard where skirt boards exist along the belt. However, inspectors should recognize the accident potential, bring the hazard to the attention of the mine operators, and recommend appropriate safeguards to prevent injuries."
The Inspector stated that he did not care what the Policy Manual said and that if the guards were not in place the next day, he would issue a 104(b) Order closing them down! Even though the Firm understood its rights to a reasonable abatement period, they felt they must abate to avoid costly interruption of production. (The Act, Sec 104(a) "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.") The inspector unilaterally set the abatement period.
$afepro is astounded that such hooligan tactics are still being used by the MSHA inspectors! After the Agency's poor enforcement performance, highlighted by the WVA disasters, one would have thought that it would take measures to "rein in" their rogue inspectors. Inspectors issuing citations that are based on deliberate and direct discounting of MSHA's nationally-published enforcement policy borders on criminal disregard of Mining firms' constitutional guarantees! This is the same as a policeman issuing a ticket to a driver for "20 miles over the speed limit" when the driver was well within the posted speed. The officer has no authority to cite even though he believes the speed should be lower. Inspectors have no authority under The Act to fabricate the Law or ignore the nationally-published MSHA Enforcement Policy.
Necessary abatements are expensive. Needless abatements based on the inspector's tyrannical decree are costly coercion!
It is unconscionable for MSHA to place an American business in a "Catch-22" where it must call on lawyers and the courts to protect itself from the Agency's compromise of its rights.
If MSHA is to be a realistic presence in safety for miners it must logically ensure that its inspectors adhere to the mandates of the Constitution and The ACT before issuing citations.
They must obey the Law before they can reasonably enforce the LAW upon the American Mining Industry!
Effective Immediately, the Industry may get the inspector's Notes under "The Freedom of Information Act".
This just received from Mine Safety and Health News Editor and Owner!
Received from a M/N Firm in the North Central MSHA District
We recently closed-out an inspection at one of our sites. The regional field office supervisor accompanied the regular inspector to observe the inspector's technique. After the issuance of non S&S citations, and discussion on the two previous "citation free" inspections at this location. The supervisor commented that the days of clean inspections are gone, we're under some pretty heavy scrutiny now.
Now is the time to stand firmly on the Law and insist that MSHA inspectors follow the nationally published enforcement policy. If they fail to follow the Law and policy formally contest each flawed citation! $afepro, inc.
Adele Abrams, Esquire forwarded the following information to $afepro for sharing with the Industry. We thank Counselor Abrams for her devotion and contributions to the Safety efforts of this great Industry!
The draft Specter bill would increase "flagrant" violation penalties to $500,000 and impose minimum penalties of $10,000 for citations involving "negligence" (are there any other kind?).
Adele L. Abrams, Esq., CMSP
Summary of the bills follows:
Legislation introduced on Feb. 1, 2006, by Sen. Robert Byrd and Rep. Nick Rahall. S. 2231/HR 4695, the "Federal Mine Safety and Health Act of 2006," would mandate additional coal mine safety standards, and require additional penalties for habitual violators. It appears limited in scope to coal mines, but the language is somewhat vague and certain provisions may spill over to impact the metal/nonmetal mining sector.
Among the bill's key provisions are the following:
Published in Ellen Smith's Mine Safety and Health News, January 23, 2006
Administration Sends Over Paperwork For Higher Civil Penalties
It might have been two years ago that Labor Secretary Elaine Chao urged Congress to raise MSHA's maximum civil penalty from $60,000 to $220,000, but it was only last week that the administration finally sent legislation to Congress to increase the maximum civil penalty that MSHA can issue to a mine operator.
The Labor Dept. claims the increase will help ensure that mine operators abide by safety rules, and congressional Republicans indicated they would seriously consider the proposal. However, no one yet has suggested changing the Mine Act’s mandated penalty criteria, in which Review Commission judges must take into consideration when approving civil penalties sought by MSHA against an operator or officer of the company.
Under the Mine Act, when approving a penalty, the Commission must take into consideration the operator's history of previous violations, the size of the business, the negligence of the operator, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation. So, to this day, an unsafe mine with egregious and repeated violations cannot be "fined" out of business.
Steve Forde, spokesman for the U .S. House Education and the Workforce Committee said that the policies governing civil penalties will be under review by the Committee.
It is already starting. Note that the emphasis in the following letter is on lax and not improper enforcement. I will not question the actions of MSHA when the inspectors and management in the agency follow the legal mandate of The ACT as the greater majority of the U.S. Mining Industry does. Your comments will be appreciated.
Below is the complete text from a letter written by two Congressmen to Representative John Boehner (R-OH), the Chairman of the House Education and the Workforce Committee calling for a review of MSHA’s effectiveness.
Dear Chairman Boehner:
In light of the tragedy at the International Coal Group's Sago Mine, in Upshur County, West Virginia, we are writing to respectfully request that the Committee on Education and the Workforce conduct a series of hearings on the effectiveness of law enforcement and safety inspections at the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA). These hearings should begin immediately.
A cursory review of citations issued by MSHA against the Sago Mine reveals a workplace with a deteriorating safety record. In 2004, the mine had received 68 citations from MSHA. In 2005, the number of citations jumped to over 200. Of those over 200 citations, 46 resulted from an 11-week review just before the disaster, and 96 were considered "significant and substantial." Moreover, since 2000, the Sago Mine has had 42 injuries that resulted in lost work time. In 2004, the Sago Mine’s injury rate was almost three times the national rate for this type of mine.
One might expect massive penalty assessments under federal law for such a dismal record. On the contrary, the 2005 violations by the International Coal Group by the Department of Labor resulted in just a few thousand dollars of penalties. These penalties included assessments for noncompliance with requirements related to mine ventilation plans, accumulation of combustible materials, and roof support. Most of the fines ranged from $60 to $440, despite what would appear to be repeat violations.
The Bush Administration has finally recommended an Asst. Sec. of Labor, Mine Safety and Health. It is Richard Stickler.
The Personnel Announcement read, "The President intends to nominate Richard Stickler, of West Virginia, to be Assistant Secretary of Labor for Mine Safety and Health. Mr. Stickler served as Director of Pennsylvania's Bureau of Deep Mine Safety. Earlier in his career, he worked for Beth Energy Mines, Inc. for thirty years. During that time, Mr. Stickler held a number of positions including Manager, Superintendent and Shift Foreman. He received his bachelor's degree from Fairmont State College."I will keep you informed on our research of Mr. Stickler. At this point, it appears that this appointment will be of little value to M/N mining or the Aggregates Industry as a whole.
Stickler having trouble with U.S. Senators on the Health, Education Labor and Pensions Committee during approval hearings.
You could be next!
This just arrived from one of the Industry's top Defense Lawyers against MSHA's 2005 "Harass & Abuse" campaign. It has escalated into putting mines out of business! It is important that the Production Industry have another example of the tactics being used against them by this agency. Remember, they are not Mine Safety experts. They are an enforcement agency and must be dealt with as such! The major defense is knowing your rights and responsibilities under the 1977 Mine Safety Act.
" It's always a pleasure reading your editorials! You need a TV show, I swear!
OK, now I want to pick your brain for free . . . . as I may have an expedited hearing required on this one. As you know, I've been representing the small group of anthracite mines in PA that MSHA has been trying to put out of business (there were 60 in 1995 - down to 12 now). One of them had two 104B orders issued in a single week a couple of weeks ago and when I sent them in for expedited, both were vacated! Most of it is BS - just plain wrong - like requiring ROPs on pre-1969 equipment that is operated on level ground. They keep returning on a weekly basis, with orders from the D.M. to shut them down. In some cases, citations are "pre-written" by the D.M. before the inspector actually does the inspection! Abuse at its worst. But I digress . . . .
MSHA's discovered a new toy -- using ATF to try and take away these small producers' blasting licenses, which would put them out of business. They just successfully did this to one of the anthracite mines (I'm fighting the license revocation for them). Now they've moved on to a second target.
MSHA's Deputy Asst DM and an inspector accompanied ATF there one week ago (three armed agents, BTW) and inspected the whole mine, surface and UG. No violations found. They came BACK again two days ago, to reinspect the same frickin' mine for explosives AGAIN. Checked surface (OK) and UG (two minor things found on one magazine, wood piece fell off, but immediately fixed). They then demanded to go "all the way back" - client said no b/c men were working down back there, including blasting, and it wasn't safe. Moreover, at best, would require the operator to provide 6 SCSRs (which, I guess, are one-time use) just like the previous week. This is a 4 employee mine! The cost of this is burdensome.
MSHA immediately issued an order under Section 103(a) - denial of entry. In my experience, the SOBs will probably now seek a US Dist. Ct. injunction against my guy. Bear in mind, he allowed full entry the prior week for the same inspection purpose and had allowed inspection that day all over the surface and UG including the magazine - it was just a small area that was off-limits for safety reasons.
So: question is -- is there a legal defense under these circumstances. Can the operator be forced to go into a hazardous situation himself (to accompany the inspectors) or permit them to go in (given there is no liability waiver)?
I'm researching this too, but so far have come up empty. You always have common sense arguments - so I'm asking for help!"
Your feedback and ideas are sorely needed and will be appreciated by the Industry! Please e-mail your comments and recommendations to mailto:email@example.com?subject=MSHA Abuses
MSHA Now Attacks the Free Press
Ellen Smith publisher of Mine Safety and Health News has been "blackballed" by the MSHA Press Office and is denied attendance at any MSHA meetings and press conferences. MSHA's Press Secretary summarily determined that this AP affiliated and National Press Club award winning reporter is "uncredentialed".
Further Agency Abuse
This e-mail was received on 9/07/05. It illustrates that many Firms still think that the MSHA inspector has the authority to make up the Law and interpret it. His doing so is a violation of the business’s Constitutional guarantees. Asking the inspector for “expert” advice in complying with the ACT is like asking Jesse James how to make profit from a financial institution. Studying the Law, understanding your rights, and keeping a safe workplace for your miners is your only defense against a lackadaisical government agency. Remember, your product is saleable ore. His is citations! You are the expert on conditions at your at your site! He is an enforcement officer!
The text in black is the original e-mail. The orange text is explanation of the “holes” in the inspectors argument analyzed by $afepro.
During a recent inspection a citation was issued on a truck which had not been driven in several days, and therefore had no pre-shift on it.(The purpose of the preshift is to find & Fix hazards before putting the equipment into operation.) The citation was for a horn that was not working. (The horn must work if the equipment is being used.) I called the District to contest, (when you call, you are informally conferencing. You need to exercise your right under Sec. 105 of the ACT and Formally Contest.) stating that we had the right to a pre-shift (it is an entitlement to the equipment operator under Standard 56-14100 (a).) and, were not provided time to fix the infraction (Infraction? The purpose of the preshift is to find hazards that must be fixed before exposing the operator during production). I was informed that this is not the case. That MSHA has the right to inspect any equipment (any equipment in operation or intended to operate) and cite violations even if identified during the pre-shift conducted in the inspector’s presents (Bull****, the Constitution of the US protects us against unlawful search.). MSHA further stated that the negligence on this type of citation should be none or low, where moderate was originally cited. (Of course, there is absolutely no negligence if the operator is complying with the ACT!)
Am I right about being allowed time to identify and fix violations on equipment not yet in service? (Yes, it is the Company’s entitlement under Standard 56-14100.)
I understand if the violation was identified on a prior pre-shift and had not been repaired in a timely fashion, it would be a violation. (It is only a violation if the equipment were placed in operation without the identified potential hazard to persons being repaired.)
MSHA has discovered Hazcom again. If you have not received Procedure Instruction Letter NO.105-III-01 go to http://www.msha.gov/regs/complian/PILS/2005/PIL05-III-1.asp to download and print it.
Remember: PIL's are instructions to inspectors on what and how they are to enforce. If you are familiar with what their "Citation of the Quarter" target is, citations in the category can be avoided by tweaking your program..
A new Procedure Instruction Letter NO. 105-IV-1 has been issued by the office of the M/N Administrator. Some Districts are applying it to Settling Ponds. Click below for information and a link to the "Enforcement Letter.
Click here: MSHA Impoundment Enforcement
A new MSHA Procedure Instruction Letter has just been issued on Fire Extinguishers with a 2-A:10-B:C Rating. Inspection of your dry chemical extinguishers for compliance with requirements will save citations!
The address of The Office of the Solicitor (MSH) has changed. The address is now "Office of the Solicitor, Division of Mine Safety and Health (MSH), 1100 Wilson Boulevard, 22nd Floor Arlington, Virginia, 22209".
Make the change in Vol. I, Sec. 105 (d) in your Policy Manual if needed!
This address is needed for "FORMAL CONTESTMENT"
It had to happen sooner or later! Here is the visual proof of some MSHA Inspectors' disregard of the LAW and National Enforcement Policy.
These photos were taken during a March Inspection by a Company Manager who furnished both the pictures and commentary to
We have received reports of inspectors citing defects observed while the equipment operators are doing their preshift inspections. This is an interference with the Right given under 56/57.14100 (a) for the operator to examine equipment for safety defects prior to putting it into “operation”.
The equipment belongs to the company until the "preshift" is completed and if the equipment is "tagged out" when a safety defect is found, the company is declaring its intention to not operate it until the defect is corrected. This is not a citable event!
Any citation issued under these circumstances should be “Formally Contested” immediately.
If you have scales on property this information will save citations if you follow-up on it!!!
Click: MSHA ENFORCEMENT ALERT
MSHA's abuses of the Industry's right to information is too important to forget. Familiarize yourself with the media articles on the matter and contact your Congressmen!