On the front lines with MSHA

A number of topics were covered during the 2018 Pit & Quarry Roundtable & Conference, including developments with the Mine Safety & Health Administration (MSHA).

P&Q: What changes or developments, if any, have you seen on the front lines of your operations with MSHA officials over the last year? What are your expectations for MSHA under new assistant secretary David Zatezalo? Do you anticipate significant changes in course by the agency in its enforcement and rulemaking efforts? If so, what are some of the changes you hope to see?

Ross Duff (Duff Quarry): We are [a] mom-and-pop small miner. What we’re seeing on the front lines is a glut of coal inspectors. Coal production is down and MSHA is overstaffed. At least that’s the interpretation we’ve received.

By volume of inspection, it’s nearly doubled just on the field inspections. As far as relevancy, it’s a concern to me with MSHA. If they have the extra staff and the budget will be spent better and proactively, [they can] provide educational materials and teach our miners some of the safe processes and work proactively.

I think it’s fantastic that [new MSHA assistant secretary David Zatezalo] has had boots on the ground and has worked his way up in the industry versus someone who has had their entire career in government.

I would love to see educational materials. The [MSHA] website is painfully outdated. When I’m bringing in my new staff, my next generation of miners, we have to have relevant training materials. I’d love to see MSHA put their funds and resources into YouTube, online resources and proactive training. I think you would continue to see the deaths and incidents and accidents reduced through education.

Scott Alexander (ACG Materials): I certainly [agree]. I think it’s been that way forever. Hopefully with some new leadership there, [MSHA senior adviser] Ed Elliott is someone I’ve worked with for a number of years. He’s great. He knows our industry as well as anybody. Hopefully he’ll have some influence.

I’m still amazed. We opened up a new operation last month next to a producer that’s been there for two years operating on a daily basis. [They] never applied for permits – MSHA doesn’t even know he exists. They don’t come and inspect him. They come to our locations because we have a number of operations. Their expectation of us, because we’re a larger producer, is that they don’t cut us any slack.

We spend a lot of money trying to keep up with all of the regulations and adhering to the safety policies. We do that, one, because it’s good business but, two, there is a pretty good expense going toward requirements for MSHA that may or may not be worthwhile. But regardless, we spend a lot of money on it. And we don’t see equal enforcement.

Hal Williford (Memphis Stone & Gravel Co.): I think there’s room for optimism with the MSHA alliance [with the National Stone, Sand & Gravel Association] and just the sheer fact that we’ve got some people from our industry that are going to be part of MSHA now. It’s got to improve.

From our company’s standpoint, [former MSHA assistant secretary] Joe Main, when he said he was going to get rid of some of the bad actors out there, we saw a big improvement in our area, in our region. We had a few inspectors that were just over the top and they were removed. It took some political pull to have that happen, but when it did we saw a much better relationship between operations managers and the MSHA inspectors that would come.

Pat Jacomet [OAIMA]: I would add this: One of the things that Joe Main did that I thought was very positive for the industry and our relationship with MSHA was go to regional meetings and meet with state associations and producers in the area. When he first started doing that early in his tenure, there were a lot of issues and a lot of inconsistencies in application of the Mine Act. That did get better over his tenure, and he continued to reach out to us regionally and meet with our folks. We started to see that trickle down to the districts and also the state supervisory inspectors.

One thing we would like to see [from] this administration – and I think assistant secretary Zatezalo would agree – communication is the key when we have inconsistencies. Our business is run on being consistent. We have to make the product. We have to make the spec. If we don’t know what the goals are and they keep moving the goalpost, we can’t score. So I hope this administration continues that because I think that was very, very positive to deal with some of these issues before they snowball.

Alexander Kanaris (Van Der Graaf): My comment about MSHA [comes] from a manufacturing perspective, because some of our equipment [has] to be MSHA approved. I think it should be a two-way street. MSHA should educate us what they’re looking for.

But at the same time, we should be educating MSHA because sometimes they have rules and regulations applicable to our equipment that make absolutely no engineering sense. So sometimes to comply with those regulations, we end up manufacturing substandard equipment. This is why, I think, between MSHA and the manufacturing sector, they have to understand what we’re doing.

Will Pierce (Schurco Slurry): I have a question for (Ogletree Deakins’) Margo [Lopez]. Does MSHA have statutory authority, or do they have leeway to go for more of prevention versus a punitive approach? Can they do that? Or are they authorized to only do enforcement?

Margo Lopez (Ogletree Deakins): They are allowed to do the training. The Mine Act actually requires them to issue the mine grants that are used to fund state and other safety training programs. But I think you’re touching on something that’s important.

MSHA, at the same time, is required by law to do regular inspections. So they have to go to surface mines at least twice a year, every underground mine at least four times a year. As Pat was saying, if an AR (authorized representative) sees something, he has to cite it. So they don’t have any option with that. But where they do have some leeway, even when they are citing something, a lot of subjectivity goes into writing citations. One inspector might see something as high negligence whereas another sees it as moderate or low. So there’s a lot of room for interpretation there, even when there are statutory inspection requirements.

Another thing, if you ever interact with an agency on this, the only thing you can point out to them is they do collect the data on the causes and of fatalities and injuries to the extent they understand what that is. Sometimes we disagree with how they’re interpreting that, but they’ve got the data. And this data is going to be used to drive the focus of the training that they’re doing to really go after the things that cause the safety issues.

Kanaris: It would be nice if they gave you some leeway or give you some time to correct the problem instead of just citing.

Lopez: Yeah, that’s where their hands are a little bit tied, because technically if an inspector sees a violation, he has to cite it.

P&Q: We talked about the workplace exams rule previously and what that’s going to mean to businesses. Have you taken a moment to absorb how that would affect your business? Or is this still news to some producers?

Williford: One of our MSHA inspectors has tried to help educate our operations about the workplace examination ruling and how it’s going to affect our operation. I actually hired another safety professional, so we’ve doubled up in that regard because we expect this is going to take a lot more time and energy.

Alexander: We’ve done the same thing, hiring additional safety staff for that.

Lopez: This is something else to advocate for with the agency: You don’t have to go to court to contest your citation unless you absolutely have to. There’s another opportunity to have a discussion with MSHA. On every citation, they ask you for what they call an informal conference at the district.

A lot of people have felt for a long time that that process has been broken. The people reviewing the citations within the agency often have a vested interest in keeping the citation as it is, because they’re either the direct supervisor, the inspector or somebody else within the district that wrote the citation. So for a long time, we’ve been advocating for the agency to come up with a more neutral, fair process for reviewing citations and the informal conference, which will reduce the number of contests you end up having to file.

It’s basically going to the police station to talk to them about the ticket rather than having to go through the court system. It’s a wonderful opportunity for you to try to get some things resolved, even before penalties are issued.

Dan Johnson (Anderson Columbia): There are challenges going on [with] this preshift inspection rule. The other thing that’s happened is I think there is a generational change in MSHA. It seems likes MSHA is having a lot of the same kind of problems everybody else is finding good people, and they run a lot of people through their academy. Under the last administration, the training in the academy was more of that, ‘Hey, these producers are out to fool you’ … and just creating a set of inspectors with a whole new bias. Now that’s what I’ve heard. I haven’t really seen it.

We just had an MSHA inspection at one of our facilities. He wanted to write us an S&S citation because there was an electrical cabinet open. We fixed it and we closed it, and then he went down when the plant was running and instructed our guys to open the electrical cabinet so he could take a picture. So, if he finds it that way, it’s an S&S citation, but if he wants to go down and open it, it’s not. That’s the kind of thing that drives producers buggy. It’s okay under these conditions, and it’s not okay under those conditions. [This has] always been the case with the inconsistency.

We’re just trying to cover all our bases and use this for a training tool. But some guys just have a reputation. They’re anti-industry, and some guys are very pro-industry. We certainly see both. I just worry about the next generation of MSHA inspectors, how many people are getting out of their industry and the biases from their training.

P&Q: For some of the equipment suppliers in this room, has MSHA had an effect on how you’ve had to redesign a current piece of equipment because you’ve heard from producers that there’s an ongoing problem? Has MSHA had some type of indirect impact on your business, as well?

Paul McLaren (Kleemann): We see our design team look into the regulations as to what they would be as we go [and] try and address all that upfront. When we put a piece of equipment out there, we’ll be waving

flags as this is going to be the basis. It’s certainly something we do take into account when we plan a redesign of a machine.

Chalin Luizinho (REMco): The biggest development for us has been the enforcement of the Part 46 training. As a manufacturer, when we have people out in the field, we go to a quarry and we’re not allowed to go without the 46 training. In the past it’s been an issue, but it’s becoming a force moving forward.

Pat Short (Cornejo & Sons): In my 25 years – the first 10 were in coal – there have been many administration changes. I don’t see as big a pendulum swing maybe as (Ogletree Deakins’) Margo (Lopez) was talking about. From the everyday inspector, I think they have been relatively the same. I think Dan (Johnson) spoke to it: no more, no less citations through the years based on administration.

So I think what I’d like to see, personally, is much better training, much more consistency and a much more consistent attitude toward the producers. There’s not a producer or manufacturer in here who does not approach safety as their number one priority when they sit down in their everyday business. So I’d like to see MSHA catch up with that attitude.