P. O. Box 30603
Raleigh, NC 27622
Representing Producers and Suppliers in the Aggregates Industry
October 26, 2009
Congressman / Senator _____________
US House of Representatives / Senate
Washington, DC
Subject: MSHA Enforcement
Representative / Senator _______:
The NC Aggregates Association (NCAA) believes the enforcement of the Mine Safety and Health Act must be fair, equitable and consistent, but over the past few years this has not been the case. Years of an aggressive safety commitment by our members have resulted in a steady improvement of our safety performance. For instance, in 2008, the aggregates industry (all surface mines in our state) attained a total injury incidence rate of 2.43 injuries per 200,000 hours worked. Since 2000, the industry in NC has seen a decline in the injury rate from 3.42 to 2.43, with an average of 2.59 over this period of time.
Nationally for the past eight years the total injury incidence rate has decreased every year from 4.14 in 2000 to 2.62 injuries per 200,000 hours worked in 2008. But, in the last three years (2006 - 2008) the amount of penalties assessed by Mine Safety and Health Administration (MSHA) against aggregate producers increased from $7.4 million to $17.9 million – a 142% increase. Has MSHA made the aggregates industry 142% safer in the last three years? As you can see, the continued improvement in safety began well before MSHA started dramatically increasing the penalties in 2006 or when Congress passed the MINER Act of 2006.
To illustrate MSHA's focus on penalties, and the factors that increase assessments, instead of working with the industry to improve safety at the quarries can be seen in a study of MSHA litigation for 2008. The data shows a 40% reduction in affirmed penalty dollars from those originally proposed by the inspector. It is very telling that the decisions by Administrative Law Judges and conference litigation representatives so clearly illustrate what appears to be inappropriate enforcement by MSHA inspectors. This data affirms that the industry is having to challenge penalties that should never have been issued in the first place, thus unnecessarily increasing the cost of business for companies that are already struggling in this economic downturn.
While some MSHA regulations are prescriptive, the majority are performance-oriented, giving mine operators necessary and desired compliance discretion. Many operators welcome the flexibility that such an approach to regulations offers. However, the situation also leaves room for varying interpretations of some regulations by operators and inspectors alike. The result can be a situation where an operator is judged to be in compliance and inspectors make no comment on a situation for years, and then suddenly begin issuing citations due to a change in an inspector’s interpretation, or as most commonly occurs, a new inspector's interpretation, even though theMSHA Enforcement
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situation has not changed. This inconsistency of enforcement is the never-ending battle that leaves operators confused and frustrated. MSHA has decided to accept this inverted form of regulation in which the local inspector wields tremendous authority in interpretation and work stoppage capability with minimal accountability or corrective action when it is determined that he or she is in error. In fact, an inspector can continue to write citations on similar, if not identical, situations even when a judge has determined a previous citation to be in error. The same is true when an MSHA attorney decides to vacate a citation before a judicial ruling can be made because the MSHA attorney does not want to set a precedence for future cases - creating case law. As stated earlier, the assignment of exaggerated risk factors to justify more citations and higher penalties creates inefficiencies, unnecessary operating costs, and likely appeals which divert resources away from real risk management on the part of the government and business.
Our industry continues to maintain its commitment to worker and workplace safety with a continuous reduction in the incidence rate. But, only proper and consistent enforcement of mine safety laws by MSHA will complement the industry’s efforts and lead to a safer and healthier workplace. Anything less than fair and reasonable interpretation and consistent enforcement of the standards will be counter-productive to this goal. The NCAA continues to work with the Southeast District of MSHA to engage MSHA in the other areas of their mission - training, education, and compliance assistance; instead of a tunnel-vision approach focused only on enforcement.
Below are recommendations by the industry to help MSHA refocus its mission on truly improving safety at mining operations.
Industry Recommendations - Enforcement
• In order to build upon the industry's success, MSHA should constructively train and educate inspectors and operators to improve safety and health in worker performance and workplace safety, rather than adopt an adversarial approach to enforcement.
• Proper and consistent enforcement of mine safety laws by MSHA. MSHA needs to address complaints of uneven enforcement and citations that are not focused on improving safety, but a “gotcha” mentality.
• The aggregates safety trend is excellent; so why is MSHA increasing citations for what appear to be de minimus-types of issues? Citations should be of qualitative content, not frivolous and unnecessarily expensive penalties to the operators that only increase the cost of doing business. The existing approach by MSHA is not working, MSHA's oversight responsibilities should be - risk basis.
• Historical company/operations safety performance should be a factor along with severity of risk and other factors, in enforcement determinations.
• Before initiating citations for minor risks, and especially when such situations have not warranted citations in the past, MSHA should be authorized to warn operators of a change in interpretation as an example of compliance assistance – Education. The newly instituted use of “fair notice” to address previously acceptable circumstances would allow the inspector, and the operator, a reasonable amount of time to re-evaluate the situation beyond the immediacy of the moment and to determine properly if there is a need for change or the issuance of a citation.
• Heavy-handed enforcement at aggregates facilities should prompt an investigation by the appropriate MSHA District Manager as to why a significant increase in citations occurred.
• MSHA should conduct inspections in a professional manner and appropriate respect for operators.
MSHA Enforcement - Page 3
• MSHA should focus efforts on clear safety violations, versus arbitrary assumptions that a standard is unmet.
• MSHA should enforce standards for safety, not issue citations based on quotas.
• MSHA should effectively communicate to inspectors, decisions made by conference litigation representatives, administrative law judges, or the Federal Mine Safety Review Commission of vacated citations so that subsequent enforcement actions on these same issues are not erroneously issued and resources wasted on repetitive appeals on the same matter. In addition, to insure responsible, accurate, and consistent enforcement at the inspector level, restitution to the operators should be made for citations that are vacated or significantly modified. Currently there are no repercussions to local inspectors for writing “bad paper”. They are not informed of vacations or modifications to their citations, much less held accountable or restricted from writing similar, if not identical, citations in the future.
• MSHA should amend the conferencing process so that disputes of citations are addressed in a timely manner. Because of MSHA's aggressive enforcement practices the number of conferences has increased dramatically; so with the overwhelming number of conference requests, the MSHA District Manager has the discretion to grant or deny a conference. Under this new process a company is not even allowed to conference minor citations. Thus, denying a company the opportunity of due process.
• Aggregates are by far the largest production sector (approximately 87%) regulated by MSHA, both by tonnage and number of operations. (Coal represents less than 5%.) MSHA should therefore acknowledge the aggregates industry separately from the collective ‘metal/nonmetal’ sector in its data collection and inspector training
Training and Education
• MSHA must place specific emphasis in its inspector training programs for aggregate operations, which result in the consistency of interpreting MSHA regulations.
• MSHA should commit to work pro-actively with industry on education and training. A spirit of cooperation and coordination should be fostered among MSHA’s enforcement branch and the mine operators, rather than an adversarial relationship. Mutual agreement on training, technical assistance, and shared instructive materials such as videos, lecture series, printed bulletins/letters, etc, could bring both enforcement and operators to a much better understanding in standard interpretation and compliance.
• MSHA should collaborate with the industry to establish a mandatory safety program for which adherence would afford relief from certain inspections and enforcement actions, and would focus enforcement on those operators with the poorest safety records. This maximizes MSHA's limited resources and rewards safe operations – program would be similar to OSHA..
The aggregates industry’s commitment to workplace safety is clearly illustrated by the fact that its injury incidence rate has continued to decline over the past eight years. NCAA acknowledges that this emphasis on safety, training, and education is the result of leadership from the CEO of each company down to the newest miner.
Sincerely,
Jasper G. Stem, Jr., P.E.
Executive Director