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I can not express the gratitude that $afepro and the Industry owe to Jim Sharpe, Sharpe's Media, for his strong efforts to tell the M/NM Operators' plight in this time of extreme "MSHA right-wing enforcement". Thanks Jim for your permission to make the lead articles of your December issue of "Sharpe's Point" available to the Industry via our website! ________________________________________________________________________________________
The e-Newsletter on Safety and Health in MiningVol. 5, No. 12 - December 2009
The aggregates sector is engaging its congressional delegates as part of a drive to mobilize support for "fair, equitable and consistent" enforcement at stone mines across the country.
Ground zero in this effort appears to be operators in MSHA's Southeastern Metal/Non-Metal (M/NM) District, where not coincidentally, some of the toughest MSHA enforcement is occurring. Nearly a third (32%) of all citations written in the District in fiscal year 2009 were for allegedly serious (S&S) infractions, the highest of any of the six M/NM districts.
In addition, Southeastern, at $7.5 million, was second only to the Western District’s $8.8 million in total assessments for the year.
In the Southeast, a three-page letter aimed at federal lawmakers has been drafted and distributed to the region's trade associations. The intent is for them to tailor it to the circumstances unique to their members, then send it on to their representatives in Congress. Two of those organizations, North Carolina and Kentucky, have done so.
Even before the letters were mailed, constituent appeals from Kentucky and Tennessee produced formal inquiries to the Department of Labor from Reps. Ben Chandler (D-KY) and Zach Wamp (R-TN), respectively. The Elberton Granite Association, a dimension stone group in Georgia, even succeeded in hosting a fact-finding quarry visit and operator conference in late October for a staff representative from the office of Sen. Johnny Isakson (R-GA).
Also in the forefront is the National Stone, Sand & Gravel Association (NSSGA), which is engaging both Congress and MSHA to express its concern. The cover of the latest issue of the Association's magazine carried the question," An Industry Under Siege?" Three articles inside left no doubt the answer is yes. In one piece, the narrative described "certain MSHA inspectors [who were] inappropriately enforcing regulations in a manner more akin to harassing than enforcing for safety."
Grievances
The Southeast letter is roughly equally divided between a chronicle of grievances against the Agency and recommendations for change. It opens by highlighting the inverted relationship between the sector's steadily improving injury incidence rate and MSHA's enforcement numbers - the injury rate is at an all-time low while the number of violations and fines are the highest ever.
Some might see this as a telling argument on behalf of enforcement. However, as the letter notes, improvement in the injury rate started long before MSHA first began flexing its muscle in 2006. Even the architect of the ramped-up enforcement effort, former MSHA chief Richard E. Stickler, conceded that enforcement alone will not assure a safe mining workplace.
MSHA has stated that about 2% of its citations are vacated, meaning Agency inspectors get it wrong that much of the time. But the letter notes that, in 2008, a 40% reduction in fines occurred. While there may be several causes for the drop, a central reason surely is the failure of the underlying citation to withstand scrutiny under contest. This telling statistic must be considered when evaluating inspector performance.
A core industry complaint is inconsistent enforcement. This "never-ending battle," as the letter described the controversy, takes several forms. Among the more frustrating are job-site circumstances about which inspectors remain silent for years, then suddenly find fault, even though the circumstances themselves have not changed.
Recommendations
The correspondence calls for better inspector and operator training to improve safety, a focus only on violations that could truly impact safety, improved internal Agency communications, and changes in the citation conferencing process. MSHA must address complaints of uneven enforcement and frivolous "gotcha" citations. Operators should get credit for a track record of injury-free operation, and changes in enforcement policy should be prefaced with notice and compliance assistance activities.
"Heavy-handed" enforcement should prompt an investigation. This would turn upside-down the current practice whereby a dearth of paper can actually trigger an audit investigation to find out why.
The letter ends with a call for collaboration between operators and the Agency, including working together to establish a "mandatory safety program." Adhering to such a program "would afford relief from certain inspections and enforcement actions, and would focus enforcement on those operators with the poorest safety records" [letter’s emphasis]. The suggestion, which mirrors a safety incentive program that now exists at OSHA, would require a change in the Mine Act.
Based on remarks to the media by new MSHA chief Joe Main Nov. 20, collaboration is also one of his top priorities. Still, renewal of NSSGA's long-running alliance with MSHA languishes, and Main has not committed to renewing it. His hesitancy may derive from the Labor Department's declaration to de-emphasize industry alliances and partnerships. Besides, collaboration requires underlying goodwill among the parties. In today's tight-fisted regulatory environment, warm and fuzzy are not feelings most operators would use to describe industry-government relations.
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Letter to Representatives and Senators Register for Feb. 8-12, 2010 LAW Institute
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