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Storm Clouds Forming over MSHA

By James Sharpe

It is a convenient reason for justifying stepped up enforcement in the metal/non-metal sector, but Assistant Secretary Joe Main’s ongoing explanation that Congress made the Mine Safety and Health Administration (MSHA) do it, is a canard nonetheless.

We all know Congress ratchets up the rhetoric after every mine tragedy and certainly there have been enough catastrophes over the past five years to keep the oratory flowing nearly non-stop. West Virginia’s two senators, Jay Rockefeller and the late Robert Byrd, along with two California lawmakers, George Miller and Lynn Woolsey, have been especially vocal. Still, we have yet to hear any current member of Congress charge MSHA with weak enforcement in the aggregate sector and demand that the safety agency get tougher there.

In fact, we have heard just the opposite. Reps. Denny Rehberg and Tim Walberg, to name just two in the House, have expressed dismay over MSHA’s enforcement posture. Senators Charles Grassley and Mike Johanns are leading the way in the Senate, and their colleague, John Thune from South Dakota, has convinced the Labor Department’s Inspector General a full-fledged investigation into MSHA’s enforcement practices is warranted. If Congress is making Main do anything, it is to lighten up in the non-coal sector.

Where’s the Common Sense?
A variation on Main’s disingenuous our-hands-are-tied theme is his statement that the congressionally created Mine Act requires inspectors to write any and all perceived violations. Section 104(a) does indeed say that. Yet that does not explain the big drop in citation-free inspections that has occurred recently. Zero-citation inspections are in the teens now, down from 49 percent, a figure provided in 2008 by Bob Friend, MSHA’s now-retired Ops chief. And some 88,000 citations currently under contest suggest a wide chasm between inspectors and operators in their perception of right and wrong. Common sense enforcement has been replaced with by-the-book enforcement.

The truth is that Main’s two-decade-plus background as a union safety director predisposes him to think management is the bad guy and to use the power of government to rein it in. His experience, 100 percent of it in coal, may well be a testament to that approach, but as rock sector managers have told him countless times, “We ain’t coal.” His first quarry visit ever, in August, brought him face-to-face with his former union brethren, who presumably enlightened him about what working in a quarry is really all about. Whether or not the experience was eye-opening as it should have been, remains to be seen.

In any case, the agency finally seems to be getting the message it needs to apply the velvet glove in its dealings outside coal. Citations, assessments and “significant and substantial” citations are dropping, although they still remain at levels higher than the safety record justifies in quarries and sand mines. We believe this is due less to any epiphany the assistant secretary has experienced than to the harsh reality of politics. The agency is worried its budget will be cut, perhaps significantly. The concern is not misplaced.

The Least of It
Less funding actually may be the least of it. If Republicans hold the House and win the Senate next year, Main may be put into the unenviable position of overseeing the dismemberment of the agency on his watch. An attempt was made about 15 years ago to separate some mining sectors from MSHA’s jurisdiction. While it failed, operators are on firmer ground now because their safety record is so much better.

They also have a long list of legitimate grievances. Main heard some of them first-hand this summer: millions of dollars spent to correct phantom safety hazards associated with guards and rub rails at weigh scales, and bogus citations written by inspectors competing for top enforcement honors because that was what their bosses rewarded. The prolonged economic downturn has devastated many mining businesses. Operators, already bitter and resentful over MSHA’s enforcement hijinks, have turned vindictive because MSHA kicked them when they were down.

One aggregates chief executive, not heretofore known for rocking the boat, put it succinctly. “Some of us are going out of business. In these economic times, we can’t have this kind of oppressive regulatory environment. There has to be relief somewhere, and we’ll be seeking it wherever we need to seek it.”

Myopic Bubble
If the agency weren’t operating inside a myopic bubble, which it is, it would realize that it not only needs to lighten up, but also must begin offering the carrot of compliance assistance to the thousands of small operators who desperately need it. Main has testified at congressional hearings about “extraordinary” outreach, education and training initiatives his agency is providing.

But such assistance is invisible to the mine safety and health professionals who responded to a recent website poll asking if they agreed with him. Not one of them did. And we all know of his attempt to put the Small Mine Office out of business. It will do more with less, he asserts with a straight face. Perhaps cutting the inspectorate by a third will make it more efficient, too.

The agency has set itself up for a serious comeuppance. Lawmakers are agitated, mine operators are angry and the prevailing mood in the country is for less government. In other words, a perfect storm is brewing. MSHA is going to find itself squarely in its eye.

Holcim Pushes Safety
Some companies give lip service to safety, others create a safety culture through action. For the third consecutive year, Holcim (Canada) Inc. is dedicating a day to occupational health and safety.

All of its 3,000 employees will take part in various activities to help them be more aware of the dangers that surround them in the workplace and work in a safer manner. This initiative complements the safety related activities implemented throughout the year.

"Building a strong safety culture through our ongoing OH&S programs requires time, but since we introduced our Safety Day initiative, we have made tremendous progress," said Paul Ostrander, president and chief executive officer, Holcim Canada. "When we launched the program, we decided to address the most pressing issue, namely reducing the number of injuries occurring in the last quarter of the year. The following year, we focused on the frequent but less severe types of incidents. And this year, we are addressing incidents that almost cause injuries or equipment damage, also known as 'near misses.' "