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MSHA and the new administration

By |  May 10, 2017

Aggregate producers, equipment suppliers, association representatives and other attendees of the Pit & Quarry Roundtable & Conference were eager to discuss ways they expect the Trump administration will change the industry. One topic of interest was the Mine Safety & Health Administration (MSHA), which will likely transition from Joe Main to another assistant secretary later this year.

Following are transcripts from roundtable proceedings on that topic. Two discussions were hosted simultaneously at the Scottsdale, Arizona, event – one in the center’s Turquoise Room, and the other in the Topaz Room.

TOPIC: Given the change in leadership that will be coming to the Department of Labor and the Mine Safety & Health Administration (MSHA), do you anticipate there will be any significant change in course by the agency in its enforcement and rulemaking efforts? If so, what are some of the changes you hope to see? Mining fatalities are at an all-time low. Could a relaxing of MSHA rules reverse that positive trend?

TURQUOISE ROOM

DORAN: As a litigator, someone who deals with contested citations, I can tell you that enforcement consistency is one of the number one concerns that we deal with all the time. They’re talking about changing the agency and changing Washington. I live in Washington. I guess I live in the swamp and don’t underestimate the ability or the entrenched bureaucracy to slow things down.

So as much as I think everyone sees the benefits of the change in administration and the focus on trying to streamline regulation and enforcement, it takes some time. And grassroots efforts have been ongoing throughout the Obama administration and are going to have to continue even with a more sympathetic Trump administration. All those issues that you are focused on, trying to get dollars to infrastructure, those things are going to take time. There’s still a lot of hard work ahead to try to get a consensus within the Republican leadership there in Washington as to where that money is going to go and how that money is going to be spent.

With respect to enforcement, a new leader at the top can really have an impact on some significant issues and some of the things that we see on a regular basis in terms of consistency. [In regard to] area guarding, technology is out there to really improve safety. You see it on the OSHA (Occupational Safety & Health Administration) side.

And that’s something MSHA around the country – and some district managers – have looked at as a plus. It’s something that can be embraced. But there are district managers in the Midwest who are requiring companies to submit justification for why their area guarding procedure is effective and why it’s compliant with the regulations.

There’s no reason that people in the Midwest should have a different standard than people in other districts, and that really stems from MSHA leadership. Someone has got to step in and say, “Okay, wait a second, maybe your position is right, but we’ve got to figure out how we can do this consistently across the board.”

The other area that we’ve seen a great deal of inconsistency in is high wall enforcement: What is appropriate ground control for one inspector is not appropriate ground control for another inspector; what’s loose on a wall and what’s not loose on a wall. There’s never been [a clear definition of] what you need to demonstrate to show your wall is safe.

Is it okay to just put a berm in front and keep people away until you can reshoot and clean it up, or if you’ve got a 130-ft. high wall, do you need to have equipment? Do you automatically violate the standards just because you don’t have equipment to reach something at 95 ft.? There are many MSHA inspectors who would just write you a citation right off the bat saying you don’t have adequate ground control measures or adequate procedures for dealing with your ground control if you don’t have equipment that can reach that high.

So, there are a lot of issues the new leadership at MSHA can address. It’s just going to take some time because it’s one thing for the person at the top to say this is the way it’s going to be, but then your administrator, your man in the middle has to say it, then the district managers have to say it, and then the field office supervisors have to say it, and then it’s sort of the game of telephone at that point. What is the message that gets to the inspector?

FRANCELJ: I’m very hopeful that new leadership will start to change the culture and behavior because what has been acceptable for 25 years of inspections for some reason is no longer acceptable to a certain inspector who then feels it necessary to write a citation. I do believe we need to continuously improve our work environments and the safety of our work environments for our employees, but there should be a partnership in doing that, working together with local inspectors.

And instead of writing citations, there should be an opportunity to work together, like a warning issued on something that has been acceptable for 25 years, a standard that has been alright for several years. It shouldn’t go directly to a citation because then that creates a pattern of violations. So I wish there was more of a partnership.

I would appreciate it if MSHA would change its culture and the inspectors would begin working with us as an industry to really become partners in creating a safer work environment, as the interpretation of our laws are evolving. There’s got to be an opportunity to work together to change that.

GOETHEL: I’m not as bullish on MSHA being as proactive in their changes as some of the other regulatory agencies. Part of the rationale that I see is that we’re coming off a record low number of fatalities, the lowest number in many, many years. And they’re going to hang their hat on what they’ve been doing over the past six, seven years at MSHA to continue that process. I sense in recent discussions with MSHA that there is a willingness in certain areas to develop this partnership that you speak about.

The walk-and-talks are fantastic. We want those more often, and we think that is an excellent signal that MSHA is sending to our workforce that they truly do care about that more so than [citations]. I hope that they become more business friendly in their partnership, but I think it’s going to take a little bit more time.

FRANCELJ: Does MSHA not feel that if they gave a warning, that the producers or contractors would immediately address it? Do they really feel that they need to write a citation for something like a garbage can that’s overfilled? Really? Is that an imminent danger to employees. I think producers and contractors would appreciate the opportunity to address an inspector’s interpretation of the law.

So I really think giving us a chance to correct those things with a warning would be a good first step.

ALEXANDER: The problem is there’s no incentive for them to do that. I mean, it’s like a policeman…

FRANCELJ: But the incentive should be creating a safer work environment. The goal of MSHA is to create a safe work environment. So that should be the incentive, but for some reason the incentive is to cite people.

ALEXANDER: Theoretically, you’re absolutely right. I’ve been in this industry 35 years and I’m like Dan [Goethel]. I don’t have a lot of hope that things are going to change because what we’re talking about now we’ve been talking about forever. And it’s a big ship to turn, and I think the bureaucrats are just as happy to wait to see what this administration is going to do and see if there’s going to be a new one in four years.

And you’ve got a lot of people in place already who are incentivized to write citations. They’re incentivized to create revenue. There was a push a number of years ago for inspectors to justify their positions. You saw the citations going up and the fines going up. I’ve seen our industry see significant improvement in the safety records overall, and the amount of fines and the number of citations going up.

They way they see it, they’re the policemen out there writing citations and that’s how they stop [accidents]. I think that’s their mentality.

DORAN: On the OSHA side, you have these cooperative efforts, these cooperative programs and that is justified in some ways because OSHA is not required to do mandatory inspections. Whereas the Mine Act is different, because it was focused on some of the excesses in the coal industry back in the ‘40s, ‘50s, ‘60s and on some of the big coal tragedies.

And so they put together a statute that’s strict liability. If you see a violation, you write a citation and you’re required to be out there a certain number of times. And that’s where the rubber meets the road. You’ve got an inspector who’s been trained to write citations and they’re required to come out to your operation. The problem from the agency’s standpoint is how to tell those inspectors, “By the way, this company has had a good record over the past five or six inspections; we need to cut them a break; we need to give them a warning at this point.”

Joe Main’s position has always been that the Mine Act doesn’t allow us to do that. So some of the focus may be trying to amend the Mine Act, but even there, politics enters the fray. It’s not necessarily a Democrat/Republican issue when you’re focused on safety.

And Mitch McConnell comes from a huge mining jurisdiction and you’re not necessarily going to get him to buy into amendments to the Mine Act when a big part of his constituency is going to be saying, “Wait a minute, what are you doing? Are you watering down safety?” So it’s not a black-and-white issue in terms of how they make those changes to the culture, but I agree that it has to happen.

GOETHEL: You bring up the Mine Act. How many changes have been made to the Mine Act? It was written in what – 1977?

DORAN: Right.

GOETHEL: It’s very few.

DORAN: We had a revision in about 2006 that was a result of the Upper Big Branch accident. That’s the last big one we’ve had, and it usually takes something like that. It takes a tragedy. It takes something like that to actually force the change, and usually when the change happens to the Mine Act in those situations, it’s ratcheting up the heat. It’s not lowering it.

TOPAZ ROOM

ROCCO: In speaking with a customer, he got an MSHA inspection and there was not a single violation written up. He was happy about it until the next day when MSHA showed up with two or three supervisors from the department. They wrote him [up], including violations for housekeeping for things such as a garbage can lid being out of place. I think we all agree that MSHA plays an important role for the industry, but where is the line in terms of just writing a citation for the heck of it versus writing a citation that actually is going to save somebody from an injury or prevent a fatality? Hopefully, some of the regulations can be adjusted, relaxed or fine-tuned to establish that line a little more clearly.

MADARA: I’ve been working for the same manufacturer for 20 years and calling on producers for an equal amount of time. I have seen safety change in a lot of ways. Generally, we want our people to be safe. We don’t want anyone getting hurt. It’s a big topic of discussion for everybody – and it should be. If you’re looking at injuries and fatalities being at an all-time low, I don’t know how you can sell against that. I would like to see the nitpicking-type stuff get relaxed. But I don’t know if that’s a subject of the person that’s [writing citations] or to the rules that are in place that need to be followed. If a producer or a manufacturer is taking safety very seriously and they’re doing everything they can to make sure their people are safe, they certainly should be rewarded for that and not have an inspector come in and write up a citation just because they feel like they need to write a citation. There’s nothing wrong with giving somebody a clean bill of health. When they leave they’re saying, “You’re doing a good job. Keep it up.” We should all celebrate the fact that our industry has become a safer industry, because that’s sometimes not the presentation we get.

CRAVEN: I’d support that, as well. What I’d also say is sometimes there are misconceptions. Health and safety is not a place. Health and safety is a culture. And I think the existing approach seems to be very aggressive. It’s assumed that this industry needs policed because it doesn’t take health and safety seriously. And I think that is a huge discredit to the work that’s done throughout this industry. In our experience, the health and safety culture is alive and well.

YANIK: From where did the writing-a-citation-for-the-sake-of-writing-a-citation approach originate? Do you expect MSHA to move away from that?

TRUSSELL: Quite frankly, I think it’s a command-and-control approach and it is part and parcel of the (last) administration, unfortunately. What I would say is that what we’ve seen is a change in the ability to partner. And so while that’s a difficult thing to quantify at a local level, we’ve been working with MSHA to do mock inspections of the facilities and so forth. A little education goes a long way. We would like to see it go more toward compliance. The fact that [inspectors] are being told if you see this you’ve got to write it … it disincentivizes those folks who are doing the right thing for the right reasons when they feel like there are punitive actions being taken against them. Also, there’s no consistency. That is something that absolutely needs to be addressed.

YANIK: We’ve heard sentiments about how the decline of the coal industry has forced a shift of coal inspectors into the metal/non-metal sector, and some inspectors just don’t have the experience that an aggregate producer would expect of an inspector. Is this a problem?

CLARKE: Regardless of the shift of the coal people, [inconsistency] has been there since I’ve been in the market. The inconsistency is across the board. I totally agree with what Steve said: It’s a problem for a manufacturer who is bringing equipment in. We try to design the machines to be safe and we don’t want people hurt on our equipment. They’re very dangerous pieces of equipment. But we can only do so much. One [inspector] will say it’s satisfactory, yet down the line it’s completely different. So it’s a very hard line to follow. Rather than penalize producers by writing a citation, educate them. If they don’t do it after that, then issue a citation. But you don’t slap your kid; you teach them how to do something. We should all work together to make it happen.

TRUSSELL: Inherently, our industry has hazards. I’ve been in the industry for 23 years, and one of the things that impressed me the first time I went to a mining operation was how seriously and sophisticated they were about safety. They take safety seriously, and they are sophisticated about it. These are mining professionals. Safety managers are pretty impressive people given what they have to deal with. Everyone needs to recognize that, for one, our industry sector is on par with education as far as the incident rate – and we are lower than retail. That’s based on labor statistics. We take safety seriously. I know we’re even lower than the national average here in Arizona. It’s the education. It’s the focus. It’s the training. Not to be insensitive, but there’s a real cost involved in making a mistake. Nobody wants to do that, not to mention the fact that what is of paramount importance is bringing our miners home safe.

YANIK: We’re heard a bit about safety culture already. Where does that derive from? When you consider MSHA’s role in safety and then your own involvement, what really makes for a good, safe operation?

HAWKRIDGE: MSHA helps raise our awareness of issues, but it really comes back to the producers to implement the change, train our people and help bring about that safety culture. I don’t think any changes in MSHA enforcement or regulations are going to reverse the positive trend that we’ve seen with mining fatalities and workplace injuries because, for the producers I’ve worked for over my career, safety is a value. We want to do the right thing. We want to send our miners home in the same condition in which they showed up for work that day. We’ve invested significant time, training and dollars to do it. We buy better equipment. We buy automation to help us reduce exposure to the hazards in the workplace.

RANDALL: Speaking as a manufacturer, our company has found that breeding a safety culture through both education and transparency – so that everyone on the job at our plant has ownership of their job and can speak freely about what they feel would improve their job and improve our safety standards – has given us an incredible track record of safety at our manufacturing facility. And I don’t think that that would be any different from a producer at MSHA’s end. I think having a partnership where the two work together and are open and transparent would only improve the results. It would only improve safety across the board.

HANNON: I believe it’s all about the culture – and you have two parts of culture. You have a company culture, which is the top-down approach. Usually, that involves spending money, people, focusing attention, and making safety the most important thing. The other piece truly comes from our employees, from the very bottom up. It’s building a reason for them to want to be safe. Employees come in every day to do the same job, and it’s really easy to lose focus on all of the rules, right? I think every company out there has enough rules in place to be safe. And the way those rules work is people believe they’re important. Part of that is involving families, making sure that when a guy goes home and sees something that’s unsafe, he talks about it with his family and makes sure the family realizes, hey, we value you. We want you to be at work tomorrow in as good a condition or better than you were yesterday. That’s the type of culture that works. When we get down to the individual people, both top and bottom, that’s how I think we reduce the accidents.

YANIK: Aggregate producers are the ones living and breathing safety. You do it every day. Are there times when you find yourselves even educating the MSHA inspector who comes in? Or that maybe they’re just not aware of how things work within your operation?

HANNON: It’s important to work the relationship with the agency. Something that I think has brought real value to the Arizona market are the mock inspections where we kind of team up. It offers a partnering effect. Anything we can do to have a better working relationship with them benefits us an industry.

TRUSSELL: That’s exactly right. When we do our mock inspections we have specific stations where we have, let’s say, already identified 10 violations – and, by the way, MSHA was a partner in identifying those 10 violations. So [members] come in to that station, and there are 10 violations . If one of our industry members didn’t see [a violation], we can show why this is a problem. I think that is very impressive to the agency because they realize these guys know what they’re talking about; they know their industry for certain and they are very serious about this.

YANIK: Any other safety-related comments?

CRAVEN: In our manufacturing facility, we have a no-blame or no-fault culture. So if somebody sees or does something they think might have been unsafe, we have it written down in their employment contract that they will not be punished for coming to us and telling us that. We would prefer to know. I think that’s what gives people the freedom and comfort to know they’re not going to get penalized. Their employment is not under threat when they come to us and say, “I think what I just did actually was probably unsafe.” That also gives you the opportunity to put in a remedial action and gets the individual to buy in, too. It’s not seen as you’re just introducing procedures to make my day at work more difficult or cumbersome; it’s actually an investment in their shift and a realization that [change] comes from them. Safety is ultimately the responsibility of the individual. You can put all of the regulations in that you want, but if people decide they’re not going to adhere to them then there’s very little you can ultimately do about it.

YANIK: The National Stone, Sand & Gravel Association, for one, has been lobbying for someone from the aggregate industry to take up the assistant secretary position that Joe Main occupied. How important is it to have somebody in that position who understands this sector of the mining industry?

TRUSSELL: We’re looking not only at who’s going to be the next assistant secretary but also at who’s going to be overseeing different regions. That’s really important. We just saw (Rocky Mountain District Manager) Richard Laufenberg step down. We worked well with him. We definitely need to have somebody in leadership positions who understands the industry. We need leaders who understand that the way to start culture change is through training. I’ve heard stories of inspectors who have been told to go back out and find something at a facility that didn’t have a violation. My thought is, “Well, maybe it’s just a good facility that’s doing the right thing for the right reasons and they’re compliant with all of the regulations.” So why do we need to go back and find something?


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