October 1, 2010

Changes in MSHA Leadership Beneficial to Industry


By Katie Jeremiah

Fall 2010

In the wake of recent mine disasters, MSHA's increased enforcement efforts have left companies with solid safety records shaking their heads as they fight their way out of citations that may result in five-figure penalty assessments. According to MSHA leaders, the increased enforcement has resulted in 13,000 more citations this year than last year — and last year, MSHA issued more citations than in any year in the entire history of the agency. The industry also faces higher penalty assessments. Annual assessed penalties have skyrocketed to $200 million and are presently hovering around $175 million.

Industry leaders hosted a meeting last month in Reno with MSHA leadership during the Joint Western Regional Mine Safety and Health Conference. The objective was to open dialogue between agency and industry and to discuss enforcement efforts that do not distinguish between operators with glowing safety records and operators identified as "special concern" mines.

MSHA leaders Joe Main (the Assistant Secretary of Labor for Mine Safety and Health) and Neal Merrifield (MSHA's Administrator for Metal and Nonmetal Mine Safety and Health) addressed a small group of individuals from MSHA's Western District Office, the National Stone Sand & Gravel Association, leaders of state concrete and aggregate associations, and safety directors from a handful of West Coast aggregate producers. Main and Merryfield acknowledged that the relationship between industry and MSHA is unnecessarily adversarial and emphasized their desire to help the agency become "more consistent, more experienced, and more knowledgeable."

Wyatt Andrews, the acting director for MSHA's Western District Office, was also in attendance. Andrews was transferred from the Southeast District to replace the prior district manager Art Ellis and appears to apply a more collaborative approach in comparison to Ellis, described by some as "vexatious." The message that MSHA conveyed to those in attendance was that the Western District Office — Andrews in particular — is encouraging an open dialogue with industry and is working to change the adversarial relationship that exists today.

Main and Merryfield reminded the group that concerns with distinguishing enforcement between surface and coal mines should be directed to Congress. But they welcomed discussion regarding inconsistency in inspections and lack of dialogue between industry and the district offices. Main assured the group that he is working to address these matters by meeting with every state aggregate association in the country. He spoke of particular examples of the agency's improvement efforts, including MSHA supervisor training programs, improved communication with the mining industry through MSHA's website, and development of compliance tools, such as the "Rules to Live By" publication.

While Main emphasized his desire to make the agency's approach more open and to incorporate common sense, he underscored the challenges the agency faces, coming on the heels of recent mine disasters, and said that he "doesn't get to get it wrong anymore." He stressed that inspectors are scared to miss issues, and that they are mandated to cite every violation they witness, regardless of whether the condition was missed by prior inspectors. MSHA acknowledges industry's frustration in responding to stricter enforcement but is steadfast in its objective to use its resources to do what is necessary to protect the health and safety of the nation's miners.

Improved Training

MSHA is implementing new courses through video and web conferencing so that supervisors and inspectors can receive more frequent training in their local offices without incurring the expense and time for travel to the National Mine Health and Safety Academy in Beckley, West Virginia (the Academy.) This year, 50 percent of MSHA's supervisors have completed training to better manage field operations and the inspection process. One industry representative inquired as to whether operators could attend the same training. Mr. Merryfield did not commit to a response, but indicated that MSHA would resist such an arrangement. But he emphasized that operators can pay to attend courses at the Academy and that MSHA is working to make its published resources from the Academy available to the general public.

Open Dialogue

MSHA leadership acknowledges that getting through the current backlog of contested citations and starting a new conferencing process is a challenge, but it is committed to getting inspection closeout conferences back in place and opening the dialogue to sort out problems outside the courtroom. In the Western District, operators can meet with the field office supervisor to do a prepenalty conference if inspection issues are not resolved onsite.

Problem Mines

Main and Merryfield recognize that the strategic targeting of problem areas will lead to a more stable mining industry. Since the implementation of a new toll-free anonymous reporting number, hazard complaints are up 300 percent. To respond to the failure of the "pattern of violations" program, MSHA has implemented the new "impact inspection program," which is intended to identify the worst operators. These operators are selected for inspection based on specific criteria like high number of violations, frequent hazard complaints, and high number of accidents or fatalities.

If MSHA stays the course, these initiatives may have a positive impact on the industry. Main, Merryfield, and Andrews conveyed a consistent message that they understand the frustration of operators who are dealing with inconsistent enforcement and an adversarial relationship between industry and MSHA, and they are committed to making the agency "more consistent, more experienced, and more knowledgeable."

Operators should pay close attention to MSHA's website, which will be the primary location for publication of guidance documents. If an operator feels that MSHA policy is being applied inconsistently or violations are being issued without reason, it should contact an attorney to assist with contesting the violation and penalty.

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