MINING DIRT
David Pfile, Hanson Southwest Region Safety Officer, died on February 24, 2004. Dave was a friend of the Industry and a leader in $afe Production.
It was a privilege to have David Pfile, Hanson Central Region Safety Manager, in the Savannah, GA Institute. David was a leading proponent for $afe Production and an "NSA Safety Officer of the Year". David's experience in making safety a profit center was invaluable throughout the Institute and the development of $afe Production for the Industry. In honor of Dave's life and contributions to the Industry $afepro presents The Dave Pfile Scholarship to a person in the Industry who exhibits the moral and leadership contributions to Mining and Quarrying as Dave did throughout his career. The October 2009 Dave Pfile Scholarship Recipient is Jim Sharpe, editor and reporter, for the excellent Sharpe's Pointe Industry Newsletter.
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If you weren't concerned about FOIA abuses by MSHA you need to be concerned about this. It hits the Industry right in the "POCKETBOOK".
Click the Blue "Jan. 19, 2005" link below to get the full report.
Jan. 19, 2005, PA EQB Amends State Explosives Regulations to Address Homeland Security Issues.
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S&S Case Law MSHA has changed the wording of their S&S enforcement policy in the latest update to Vol. I of their Policy Manual. If you have not seen it click on this address: http://http://www.msha.gov/REGS/COMPLIAN/PPM/PMVOL1C.HTM#25 and it will take you to the MSHA site and you can see the changes. The information says the same thing in more words. I see it as the Agency confusing the issue so that the Producers will back off and take any S&S citation. If you do not stay on top of the changes, it allows the inspectors to appear to have power which they do not. Here is the policy prior to the update: MSHA
PROGRAM POLICY
MANUAL
VOLUME I
If an operator at a certain mine is under the 104 (d) unwarrantable sequence, and if that operator sells that mine, the new mine owner does not normally inherit the previous owner’s unwarrantable sequence. This is true for all cases, except where there has been a change in name only or where the ownership change is merely a paper change. If the new owner/operator is essentially the same as the previous owner/operator, then the unwarrantable sequence is to remain in effect.
104(d) (1)1(e) (1) Guidelines for Determining “Significant and Substantial” Violations The following guidelines describe the principles applicable to determining whether a violation is “significant and substantial” under Sections 104 (d) (1) and 104 (e) (1) of the Federal Mine Safety and Health Act of 1977.
In Secretary of Labor, Mine Safety and Health Administration v. National Gypsum Company, decided on April 7, 1981, the Federal Mine Safety and Health Review Commission held that
a violation is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.
General Guidelines. In determining whether a violation could “significantly and substantially contribute to the cause and effect of a mine safety or health hazard,” inspectors must first find that
1. an injury or illness would be reasonably likely to occur if the violation were not corrected; and 2. if the injury or illness were to occur, it would be reasonably serious.
Both of these findings must be made before a violation can be designated as “significant and substantial.” All of the facts relevant to this evaluation should be included in the inspector’s notes. Violations designated as “significant and substantial” should also be generally consistent with the information recorded on the Inspector’s Evaluation Section of MSHA Form 7000-3, Mine 04/01/91 (Release 1-3) 17
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See The Inspectors notes
Dennis Johnson, Regional Safety Manager
Chemical Lime, LTD
Back in the late seventies, I asked MSHA how I could get The Inspector’s Notes. I was told, “Subpoena them!” Being young and gullible, I accepted that and for almost 25 years believed that that was the only way to get them. Fortunately, I met Dennis Johnson, Regional Safety Manager, Chemical Lime LTD. He said, “Just ask for them under the Freedom of Information Act. I do it all of the time. I even tell the inspectors to write legibly because I don’t want our people to have any trouble reading your notes.” The notes are used for review during all citation contestments and are very handy when it comes to proving that you, not the inspector, are the expert on the condition of your site.
The request is for notes
relative to specific Agency activity (i.e., Inspections, investigations, etc.)
and cover a specifis time period. The request
goes to your District Office and you have them shortly for your review and
planning.
More on this....
Many thanks to Terry Tyson, Hanson SW Pacific Aggregates Safety Officer for sharing this actual inspection experience with us.
This is but one reason to thoroughly understand what is involved in the shoddy MSHA enforcement of Part 46. There is no consistency among the Districts, much less the inspectors. A full background on Part 46 will be given at the $afepro Sept. 30 Institute. As you can easily see, if the Company had not understood the requirements and had not been knowledgeable of their compliance under the mandate, the resulting possible "withdrawal of employees" would have been extremely expensive. The costs would have been at least 50 times the expense of the Institute.
Terry is a graduate of the Sept. 2001 Institute.
"The Proof is Out There"
During the last portions of a recent MSHA inspection at a small mine, an AR was performing his review of the mine's paperwork, in particular, the mine's training records. The miners at the site had received the requisite Annual Refresher Training the year prior which was verified with the production of signed training certificates. Other documentation was provided to show that the training had been supplemented with various and numerous safety and training meetings. All in all to date, the miners had received approximately 9+ hours of devoted refresher training and an additional 6 hours of other safety related training during the year. Despite the company's reputation, miners' statements that they had attended the training AND signed training certificates the inspector asked this question:
"Do you have any proof of how long the training was for each subject covered under your Annual Refresher Training plan?"
A general description of the training was discussed and the AR was invited to examine, once again, the mine's approved training plan which more clearly outlined the specifics of the training. But when asked how his inquiry applied and for what reason he asked it, he responded: "Well, how do I know that you actually provided 8 hours of training for your miners? The training certificate does not indicate that information, so you need to show me some additional documentation indicating the duration of training."
He declared that "proof of training" certificates must conform to 30 CFR, Part 46.9 (b)(2) which, in part states (emphasis added):
"(b) The form must include:
(1)The printed full name of the person trained;
(2) The type of training, the duration of the training, the date the training was received, the name of the competent person who provided the training:"
He then stated that unless we could provide evidence that the minimum amount of training time had been provided for Annual Refresher Training, he would be compelled to issue paper, possibly a withdrawal order, until the affected miners were provided with a minimum of eight, documented hours of Refresher Training.
However, the operator pointed out that the certificate, MSHA Form 5000-23, is acceptable under Part 46 as proof of training, even though the form does not have any place where that information ("duration of training") can be recorded. It was further pointed out that paragraph (a) of that same section reads (emphasis added):
"(a) You must record and certify on MSHA Form 5000-23, or on a form that contains the information listed in paragraph (b) of this section, that each miner has received training required under this part."
The operator stated that a properly signed MSHA 5000-23 training certificate is all of the documentation necessary to prove that training took place. The inspector, upon reflection concurred. He then admitted that there appeared to be a conflict in the proof of training requirements that may need to be rectified when and if a revised 5000-23 is created. No citations or orders were issued.
So what does this all mean to an operator who is providing training and issuing certificates?
Currently, if you utilize the 5000-23, no other proof of training is necessary, even if additional documentation is available. In the scenario above there was documentation available indicating duration of training, but that information was not maintained at the mine. The operator's safety director, in an effort to reduce the amount of paperwork maintained at the site kept these records in his office, many miles away. Since such proof was not required, the records were stored off of the mine site and used only for company purposes.
However, if you use any other form (even one on which you have merely pasted your company's name onto a 5000-23 and then printed yourself) it must have all of the components listed in part 46.9.
Even if your company uses the 5000-23 form it might be a good idea to maintain training records that do indicate the duration of training on various topics, for practical purposes. A suggested format can be found in MSHA's "Part 46 Training Starting Kit" available on the agency's website. A review of those records may be used for company or individual miner training needs assessment and curriculum planning.