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Pre-Assessment Conferences Will Reduce Burden on Mines and Aggregate Producers

The Mine Safety and Health Administration (MSHA) will begin conducting pre-assessment conferencing in January 2012 to help reduce a backlog of violations before the Federal Mine Safety and Health Review Commission.

The process will establish a feedback loop between operators and regulators that will reduce the burden on operators when a safety violation is discovered.

Under the procedures in most MSHA districts, a mine operator and miners’ representative may request a conference regarding a contested citation or order only after MSHA proposes a penalty assessment, and any settlements require approval by the commission. The new procedures are based on the results of a pilot program launched by MSHA Assistant Secretary Joseph A. Main in August 2010 that evaluated the effect of the pre-assessment conference on contested citations. The evaluation incorporated input from industry stakeholders, including mine operators and miners’ representatives, including aggregates operators and other stakeholders.

“This new conferencing process will help reduce the backlog of cases that go before the commission by resolving disputes before litigation ever occurs,” said Main. “We are implementing a process that will provide early resolution of disputes, reduce the number of contested citations and orders, increase accuracy and consistency, and improve communication among mine operators, miners and MSHA.”

Conferences Ensured Support of Evidence

District managers in the pilot districts reported that the conferences were beneficial to both MSHA and the mine operators because the conferences improved communication not only between MSHA and the operators, but also among supervisors, conference and litigation representatives (CLRs), and inspectors. The pilot districts stated that the conferencing process helped ensure that the rationale and documentation behind each violation was thoroughly reviewed and supported by the evidence. (From Evaluation of MSHA’s Pre-Assessment Safety and Health Conferencing Pilot, available in pdf form on MHSA.gov.)

Each MSHA district must determine when to implement the procedures based on available resources. Implementation may occur slowly or not at all in some districts, until other backlog reduction strategies take hold and make the caseloads more manageable. During the pilot program, operators frequently opted not to request pre-assessment conferences, but there was a high resolution rate for those that did.

“Although no single strategy will reduce the backlog of contested cases before the commission, this is one aspect of a larger plan, taking advantage of reduction opportunities where they can be found and implemented,” said Main.

The National Stone, Sand and Gravel Association (NSSGA) commended the MSHA for establishing the opportunity for aggregates operators and other stakeholders to conference with MSHA representatives regarding disputed citations before assessment of penalties.

Aggregate Group Wanted Program Back

“NSSGA industry leaders, from safety directors to owner-operators, CEOs and our dedicated Safety and Health Committee members all over the country, have urged restoration of pre-assessment conferencing ever since this communication program was taken away in the last year of the previous (Bush) administration,” said NSSGA president and CEO Joy Wilson. “We’re pleased MSHA Assistant Secretary Joe Main and his senior team see the value to safety in pre-assessment conferencing. Operators and MSHA can spend time more appropriately on improving workforce safety and health rather than see that time and limited resources evaporate in unnecessary, prolonged and costly disputes.”

NSSGA Chairman of the Board Dave Thomey, executive vice president, Maryland Materials, Inc., praised MSHA’s announcement. “I’ve been part of a concerted effort with the NSSGA executive committee to help demonstrate the real costs to a small business like mine, when pre-conferencing tools were no longer available. Fully-implemented restoration of this practice is a positive move by MSHA.”

Thomey and Wilson referred to a series of NSSGA’s small, medium and large company CEOs’ meetings with Main, during which members asserted that unjustified, inconsistent enforcement hampered compliance and diverted focus from risk-based prevention of accidents and improvement of operator safety and health. NSSGA’s Safety Pledge commits members to adopt safety as a value and to continuous improvement. It is based on the principle that compliance depends on a constructive dialogue between MSHA inspectors and aggregates operators. NSSGA believes that return of pre-assessment conferencing can help.

Louis Griesemer, president, Springfield Underground, and NSSGA co-chair of the association’s alliance with MSHA said, “A productive dialogue on behalf of safety is critical as NSSGA members continue efforts to boost safety and health. A clear route to these communications, via pre-assessment conferencing, is a big step in the right direction.”

Meetings Will Precede Penalty

Scheduled to be implemented in January 2012, the new program is expected in all six MSHA districts. However, MSHA cautioned that execution of the program is dependent on the district managers’ belief that the required resources are available. This pre-assessment conferencing procedure is important because it should allow aggregates operators to meet with MSHA about disagreements on citations before a penalty is actually assessed. The agency said that a primary goal is to reduce the backlog of cases before the review commission.

The plan to allow pre-assessment conferencing follows up on the agency’s pilot pre-assessment program that was conducted in the southeastern district in the fall of 2010. MSHA says that two-thirds of all conferences were settled without a subsequent contest. The agency also said that most operators that participated in the pilot expressed satisfaction with the program’s procedures.

NSSGA notes that in the last fiscal year, the agency budget was more than $357 million. Furthermore, the aggregates industry, challenged by the worst construction economy since the Great Depression, was assessed $20.4 million for payment to the U.S. government general revenue while the safety incidence rate of the MSHA-regulated aggregates industry broke records in safety improvement to levels approximating the risks of teaching in OSHA-regulated elementary and secondary schools.

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