July 2002
Regulations
Permitting in Florida’s Lake Belt transforms aggregate producers from competitors into allies
By Therese Dunphy
In April, a coalition of 10 aggregate producers received permits to mine 5,409 acres in Florida’s Lake Belt.
Permitting can be difficult under the best of circumstances, but as producers in Florida’s Lake Belt region found, permitting in proximity to the Everglades can be downright daunting.
In April, the Miami-Dade Limestone Products Association — a coalition of 10 aggregate producers operating at 12 different sites — received a permit from the U.S. Army Corps of Engineers to allow mining on 5,409 acres between the Florida Everglades and the state turnpike. The permit is for 10 years, with a three-year review clause. That’s not a bad result, but the coalition’s original goal was to obtain a 50-year permit for 21,000 acres. Producers are also paying approximately $46 million in impact fees to purchase and improve another 7,500 acres of wetlands adjacent to the Everglades.
“This decision is one of the most complex and important that I’ve made since assuming command of the Jacksonville district in August 2000,” said the Corps’ Col. Greg May. “This decision is based on a balanced approach that considered environmental and restoration goals, public concerns, and private property rights.”
While it may have been a difficult decision, it was one made after 10 years of effort from those involved.
“The process was much longer and more drawn out than we thought it would be when we ventured into in it in 1992,” said Cliff Kirkmyer, president of Miami-Dade Limestone Products Association and vice president of Rinker Materials Southeast Quarry Division.
It began in the early ’90s with the formation of the Lake Belt Committee. The committee was charged with developing a land use plan for western Miami-Dade County — where the entire state’s highest quality limestone reserves are located. While limestone mining had been ongoing in the area since the 1950s, each company had worked under its own permit, with its own mine plan, and its own mitigation requirements. The Lake Belt project was established to help the community and the producers deal with more global issues.
Goals of the public-private partnership centered around several areas: ensuring availability of reserves, establishing a buffer between urban development and the Everglades, and providing a consistent formula and a funding mechanism for mitigation.
The committee, which included representatives from the aggregate industry, the South Florida Water Management District, the U.S. Army Corps of Engineers, state and local regulators, and the environmental community spent five years (from 1992 until 1997) forming its recommendations. After the recommendations were published, it took the Florida Legislature another two years to pass them. And, while aggregate producers began paying the mitigation fees outlined in the plan three years ago, they did not receive their permits until April 2002.
Pros and cons
While the process was a difficult one and didn’t provide total satisfaction, most of the parties involved agreed that it was an overall success.
“It was a real eye opener. It was a very long, arduous process that didn’t quite produce the results that everyone had hoped for — including some of the government agencies,” said Ron Inge, vice president - business development, Florida Rock Industries, Inc.
Inge noted, however, that there were a number of very positive results to the coalition’s endeavor. “It showed how multiple interests can put aside their specific differences and focus on a very important item and do that cooperatively over a long period of time,” he said.
Kirkmyer agreed, citing the consistency built into the process as one of its key advantages.
“We (Rinker) have operated as many as four sites in Florida,” said Kirkmyer. “At permit renewal time, you were all over the board in terms of what we needed to provide. It was simply whatever the review group asked for at a given site at a given time.”
Another benefit to the process was the use of simultaneous permitting.
“We now have one-stop shopping in that we were dealing with three different permitting agencies — the Corps of Engineers, the state Department of Environmental Protection, and the county Department of Environmental Regulation and Management,” said Rafe Petersen, an attorney with Holland & Knight LLP, who served as co-counsel for the coalition.
“We were attempting to craft permitting language that would satisfy all three agencies and all 10 companies. The good part was that once we had all three agencies on board, we were essentially done,” said Petersen. “All the agencies had their cards on the table at once, and I think that was a significant benefit.”
A third benefit to the group effort is its ability to pool expertise and resources for mitigation efforts.
“The mitigation approach is a huge positive that came out of it because now there is one unified approach that provides the significant amounts of money to be utilized for the acquisition, restoration, and maintenance of existing wetlands systems,” said Inge. “Those systems will provide a buffer between the urban areas of Dade County and the Everglades.”
On the other hand, the scale of the project also weighed against it.
“The project did become a lightning rod due to its size and its location,” noted Petersen. “I don’t think the average citizen understands the type of acreage that is involved in the mining process. When you add them all together, 5,000 acres sounds like a big number.
“It became a matter of public perception. That was one of the frustrating things. The miners got bad publicity, but in reality, they had already generated millions of dollars for restoration that was getting sat upon until the permits were issued.”
Another less-than-satisfying aspect of the process was the number of new acres permitted based on the 10-year effort. Approximately 70 percent of the acres covered in the new permit were already permitted under individual producer permits. That means that only 30 percent of those 5,000 acres are newly permitted.
“We didn’t pick up a whole bunch of additional acreage,” said Inge. “Almost everything that our company is going to mine in the next 10 years was already permitted. Any acreage not previously permitted has the mandatory three-year review before mining can occur anyway. In fact, we had permits up for renewal from the Corps that covered more acreage, but this footprint was modified to fit the 10-year horizon insisted upon by the agencies.”
looking toward the future
Despite the long path to get there, Lake Belt producers do now have their 10-year permit and a 50-year plan in place. During the three-year review period, several outstanding issues involving water issues are being researched and resolved.
“There were some unresolved technical issues regarding the impact on water supply and groundwater seepage,” said Tom MacVicar, president of MacVicar, Federico & Lamb, a water resources company that serves as a technical consultant to the Miami-Dade Limestone Products Association. “Lake Belt mining shares an area with Miami’s largest wellfield, which is where they get about half the county’s water supply. There are some technical issues with how large-scale mining is going to affect the flow of the wellfield. It has to be worked out and clarified, but I don’t expect them to be showstoppers.”
There is also the possibility of a legal challenge from various environmental groups. The Sierra Club and the Natural Resources Defense Council signed a joint letter indicating their intent to pursue a legal challenge. At press time, the matter had gone no further.
While the process required a lot of tenacity on the part of the producers involved, it does provide a continuity of permitting that had not existed beforehand. It also establishes some cost control parameters by outlining set mitigation fees (with an inflation index) and provides the ability to acquire reserves.
“While it doesn’t guarantee our future, it does provide a degree of insurance,” said Kirkmyer. “That’s as good as we can ask for in today’s environment.”
The group permitting process enabled producers to gain consistency in their permits and to obtain a high degree of control over mitigation costs.
Therese Dunphy is editorial director for AggMan.
Stop Shooting Yourself in the Foot: Pay Attention to Record Keeping
By Cole Wist
The record keeping requirements under MSHA’s regulations require owners and operators of mines to keep extensive records, including accident injury and illness records, pre-shift equipment inspection reports, work place examination records, and certificates of miner training. Without question, adequate record keeping is a key element of any safety program. Properly maintained, these records are an effective management tool for promoting worker safety. Neglected, however, these documents (or lack of documents) provide MSHA with easily citable offenses, a road map for other violations, and potential personal civil or criminal liability.
It is a mistake to consider MSHA’s record keeping regulations as trivial and minor. Consider common sense. MSHA will likely start every inspection or investigation with your records. Why? These are the easiest violations to find and, therefore, the easiest to cite. MSHA doesn’t need to take measurements or consult technical regulations to nail you for a record keeping violation. In most cases, they just have to collect and review the paper and see whether you turned in your homework.
Because record review usually comes early in an inspection, you shouldn’t blow your chance to make a good first impression. If an inspector senses that your company neglects record keeping requirements, he or she may form the impression that inattention, laziness, and carelessness are also hallmarks of your safety program in general. This impression may dominate an inspector’s thinking throughout an inspection.
For example, take two types of records that are regularly examined by MSHA and regularly given incomplete attention by operators: pre-shift examinations of equipment and examinations of working places. If workers carefully and diligently inspect and correct hazards present in the workplace or on pieces of equipment they use to perform their jobs, great strides are taken to reduce the likelihood that a hazard will result in an accident. Conversely, when these inspections or examinations are not performed, safety in the workplace is compromised. Performing these inspections is important. Equally important, however, is that such inspections and examinations are documented, reviewed, and acted upon. If not properly documented, it will likely be assumed that the inspection or examination was never performed. Such an argument could further be used to sustain an allegation that management knowingly or willfully violated an MSHA standard.
Because (absent a warrant or U.S. district court order) only those records that are requested, and are required to be maintained by the Mine Act or MSHA regulations, must be produced to an inspector, operators must also give careful attention to how records are created and maintained.
For example, management may prepare a document analyzing the cause of an event to prevent its recurrence. Unfortunately, an MSHA inspector may use such a document to support allegations against the company and individual supervisors or managers. The safest approach is for management to maintain records required under the Mine Act separately and in strict conformance with applicable regulatory requirements. Such records should contain exclusively that information which the operator must keep, and should be maintained separately from other business records. If such records are properly kept, operators can readily comply with any legitimate MSHA request to examine those records it is required to maintain and preserve the confidentiality of its other business records which are not required to be maintained under the Mine Act.
Operators should consider implementation of the following document policies. First, non-required records should never be produced to MSHA without corporate or legal approval. Such records should be produced only if determined to be non-incriminating and useful in resolving alleged violations. Second, any mine site document retention policy should require documents and records to be retained only for specifically mandated time frames. This will assure compliance with legal requirements and prevent accumulation of records which could be used against the company’s interest in litigation or enforcement proceedings.
Often, companies do not recognize deficiencies in record keeping systems until a disaster happens and scrutiny is heightened. Such deficiencies are avoidable if you set up and manage systems within your safety program to catch oversights before they become a pattern.
Cole Wist is a partner in the Denver, Colo., office of Patton Boggs LP. The law firm’s website is located at www.pattonboggs.com.
Federal Mine Safety and Health Review Commission
By Adele L. Abrams, Esq. CMSP
Deliberate Process Privilege Examined
One of the more frustrating events in the course of litigating against MSHA comes when the mine operator tries to obtain MSHA investigators’ notes in order to prepare its defense. Often, MSHA redacts or “blacks out” large portions of the field notes and interview statements, or simply refuses to produce the documents entirely. In addition, MSHA may deny access to documents prepared by the inspectors or investigators prior to the issuance of citations, claiming that the “deliberative process privilege” applies. The denial of access to such materials comes both in responses to Freedom of Information Act requests and through the discovery process. Obviously, denial of these documents prevents the mine operator from determining what thought processes underlie the decision to issue citations, as well as from discovering whether MSHA’s determinations are based on faulty assumptions or error of fact.
The application of MSHA’s deliberative process privilege was addressed recently in CDK Contracting Co. (ALJ Manning, April 18, 2002). In that case, MSHA sought to withhold the notes of its investigator from the agency’s technical support branch, who developed a document entitled “Physical Factors Summary.” The inspector who issued the citations disclosed during deposition that he relied on this technical support document in making his determinations. The deliberative process privilege protects agency “consultative functions” by maintaining confidentiality of “advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” To successfully raise the privilege, the agency has the burden of demonstrating that the material is both pre-decisional and deliberative. Purely factual material is not covered unless it is inextricably intertwined with the other privileged material to an extent that disclosure would compromise the confidentiality of the protected information.
MSHA opposed in camera review of the materials, and claimed that the privilege protected the information because it was communication between a subordinate and a supervisor that was prepared prior to adoption of agency policy. It added that the protection extended because it was submitted to the supervisory inspector before any enforcement action was taken and before the final accident report was written. MSHA did agree, however, that the operator was entitled to know the reasons why the citations and orders were issued.
CDK asserted that the summary was relevant to preparation of its defense and that the deliberate process privilege did not apply to factual information contained in the investigator’s report. It stated that the privilege just protects agency employees’ personal opinions rather than policies adopted by the agency and that such documents lose protection once MSHA relies upon it when taking enforcement actions.
Judge Manning noted that established Commission case law (In Re: Contests of Respirable Dust Sample Alteration Citations, Commission 1992) holds that documents containing nonbonding recommendations on law or policy are exempt from disclosure, and that factual materials are likewise exempt to the extent that they reveal the mental processes of the decision-makers. However, in the CDK situation, he determined that revealing the facts that the inspector relied upon when issuing the citations would not reveal such “mental processes.” The ALJ ruled that CDK was entitled to those portions of the “Physical Factors Summary” that contain the facts relied upon by MSHA when it issued the citations and orders in the case. Although the judge agreed that the summary was pre-decisional, the facts relied upon by MSHA to justify its enforcement action were not deliberative, and the privilege did not apply. ALJ Manning directed MSHA to redact those portions of the document that the inspector did not rely upon in issuing the citations/orders, as well as the opinions and nonbonding recommendations of the technical support investigator that were not factual in nature.
Commission Finds Error in Vermont Slate Case
A divided Commission has reversed ALJ Hodgdon’s ruling with respect to a guarding citation in Vermont Unfading Green Slate Co. (Commission, May 9, 2002) and remanded the matter for further consideration of testimony. The judge’s holdings on five other citations were affirmed.
The citation in question was issued under §56.14107(a) concerning an unguarded v-belt drive on the company’s slate trimmer. The trimmer was located in the garage on a stack of pallets about 5-ft. high. The company had argued that no miner would stand on the platform while operating the machine and, therefore, no one would be exposed to the alleged pinchpoints. The inspector’s notes had indicated an alleged hazard to someone standing on the ground beneath the machinery.
ALJ Hodgdon had characterized the mine operator’s testimony as “irrelevant” because it only dealt with someone standing on the ground — a holding that the Commission rejected. It found that the testimony was designed to refute the danger posed to a miner by noting that benches blocked access to the platform.
The Commission held that the judge’s ruling contravened Commission Rule 69(a), which requires judges to include all findings of fact and conclusions of law in their decisions, as well as the reasons or bases for them on all material issues of fact, law, or discretion presented by the record. Because the judge did not consider the mine operator representative’s testimony regarding the hazard to miners on the platform, he erred by failing to analyze and weigh all of the probative record evidence to determine whether the moving parts posed a hazard to such miners.
In addition, Vermont Slate argued that the judge also erred when he refused to allow the company to call MSHA Inspector Tango to testify about his notes and the citations written on the day of the inspection. Another inspector did testify, using Tango’s notes, but MSHA failed to call Tango as a witness. Although the mine operator indicated that it wanted Tango to be present, the judge discouraged this by noting that it would require a continuation of the case. He added that it was up to the Solicitor of Labor to decide what witnesses to call and that the Solicitor was not calling Tango. Vermont Slate, which appeared pro se, had not subpoenaed Tango because counsel for MSHA had indicated that he would be present at the hearing.
On this issue, the Commission found that the ALJ had provided the company with “mixed signals” in response to the request to call Tango as a witness and expressed its belief that the company should have been given an opportunity to present the inspector’s testimony in support of its case, particularly in light of its pro se status.
Although falling short of an “abuse of discretion,” the judge’s action may have prejudiced Vermont Slate, the Commission wrote. It vacated the judge’s finding and remanded the citation with instructions to reopen the record and permit the mine operator to present Inspector Tango’s testimony and also to reconcile any conflicting evidence in order to determine whether the guarding was adequate. Commissioner Jordan dissented and would have affirmed the finding that the guard was inadequate.
Gravel Pit Loses Jurisdiction Battle, Workplace Exam Issue
A Utah gravel pit failed in its attempt to fight MSHA jurisdiction, unsuccessfully arguing that it did not engage in interstate commerce because it sold materials solely within a single county to local contractors and residents. In Darwin Stratton & Son, Inc. (ALJ, April 29, 2002), Judge Manning observed that what is defined as a mine is given the broadest possible interpretation and doubts are resolved in favor of inclusion within the coverage of the Mine Act.
Invoking the “commerce clause” of Article I of the U.S. Constitution, the ALJ noted that interstate commerce is affected because the mining company purchases machines and equipment that are manufactured outside the state of Utah, and that the Supreme Court recognized, in Donovan v. Dewey (1981) that the “poor health and safety record of [the mining] industry has significant deleterious effects on interstate commerce.” The company was fined $200 for failure to file quarterly hour reports with MSHA pursuant to §50.30, and was additionally fined $1,000 for failing to admit MSHA inspectors, in violation of Section 103(a) of the Mine Act.
The company was also cited for a violation of §56.18002(a), because MSHA concluded that a competent person was not properly examining the crusher plant area each shift for conditions adversely affecting safety or health. The basis for the citation was the inspector’s issuance of 11 other citations for safety deficiencies. The inspector testified that “due to the numerous violations,” he felt that the designated person responsible was not doing a good job of doing the pre-shift exam.
ALJ Manning explained that the standard has three requirements: (1) daily workplace examination for the purpose of identifying safety or health hazards; (2) examination by a competent person; and (3) maintenance of a record of such examinations by the operator. A “competent person” is one having the abilities and experience that fully qualify him to perform the duty to which he is assigned. The mine operator had informed the inspector that examinations were being done, and MSHA did not introduce any evidence as to the competency of Darwin Stratton’s examiner.
ALJ Manning stressed, “The mere fact that multiple citations are issued during an MSHA inspection is generally not sufficient to establish a violation if the mine operator demonstrates that the examinations were being conducted and the results of these examinations were being recorded.” However, in this case, the mine operator did not present any evidence to rebut the Secretary’s prima facie case, and so the judge affirmed the citation and imposed a $75 penalty.
Interestingly, although most of underlying citations were non-S&S, the judge affirmed the workplace examination citation as “S&S.”
Settlement Roundup
A number of mine operators have advised me that MSHA continues to issue citations for mobile equipment defects on equipment that is not in service and has not had a “preshift examination” prior to the MSHA inspection. This situation reached extreme limits in Wilmington Materials (ALJ Feldman, June 4, 2002), where the North Carolina mine operator received 10 unwarrantable failure citations/orders for alleged equipment defects, half of which related to parked loaders and trucks that were not in service. Although all but two of the citations/orders were classified as “non-S&S,” MSHA proposed civil penalties totaling $7,000. The mine operator and MSHA settled the matter after MSHA agreed to vacate the unwarrantable findings on the five orders dealing with out-of-service vehicles, modifying those to Section 104(a) citations, and reduced the total penalty to $3,900.
Strunk Brothers Co. (ALJ Schroder, May 8, 2002) recently settled its fatality case with MSHA, after the civil penalties were reduced from $174,610 to $35,000. The company had been issued a total of 22 citations in the accident, which occurred while the company was acting as a contractor at a Frank N. Butler Co. quarry in Illinois. One of Strunk’s workers was killed when his scraper rolled backward and went over a 51-ft. highwall. As part of the settlement package, the contractor implemented safety programs and hired a full-time safety director. It also has assigned a mechanic at each worksite to identify and repair problems at the start of each shift and has assigned another field mechanic to perform preventative maintenance. The company had also demonstrated its inability to pay the originally assessed penalties.
A Puerto Rico fatality case was also resolved this spring when MSHA reduced the penalties against Canarico Quarries, Inc. from $80,000 to $67,500 (ALJ Barbour, April 25, 2002). In that case, a skid-steer loader operator accidentally triggered the controls of his machine as he tried to exit, and the bucket lowered and pinned him against the frame. The company received separate citations under §56.14100(b) and §56.14100(a) for failing to adequately conduct a preshift inspection of the machine and for disconnecting and bypassing a safety device for the restraint bar.
In another aggregate industry fatality case, Sterling Materials (ALJ Zielinski, April 30, 2002) and MSHA agreed to reduce penalties from $165,000 to $95,000 to resolve the December 1999 matter where a laborer became entangled in an unguarded tail pulley while cleaning up spilled material at a portable crusher. The company was charged with a guarding violation under §57.14107(a), a workplace examination violation under §57.18002, and failure to provide appropriate Part 48 training to the worker, who had only been on the job for 17 days.
Aggregate Mine Ordered To Reinstate Worker
A miner who claimed that he was terminated because of making complaints about safety to management and to MSHA was ordered reinstated pending full resolution of the merits of his discrimination complaint. In Secretary of Labor, o/b/o Randy Lee Bennett v. Smasal Aggregates (ALJ Feldman, April 16, 2002), the ALJ invoked the temporary reinstatement authority of Section 105(c)(2) of the Mine Act and Commission Rule 44(c), after MSHA established that Bennett’s claim was not “frivolously brought” — in other words, that the complaint appeared to have merit.
Generally, to prevail in a mine discrimination matter, the complainant must prove a prima facie case by demonstrating that he participated in safety-related activity protected by the Mine Act, and that the adverse action against him was motivated in part by that protected activity. The mine operator can rebut the complainant’s case by demonstrating either that no protected activity occurred, that the adverse action was not motivated in any part by the protected activity, or that it would have taken the adverse action for the unprotected activity alone.
In a temporary reinstatement action, the issues before the judge are whether protected activity actually occurred and, if so, whether such activity “was reasonably contemporaneous with the adverse action complained of.” In this matter, the miner had filed a complaint with MSHA on Jan. 17, 2002, and he was terminated on Jan. 18, 2002, allegedly motivated by the worker’s MSHA complaint.
The company claimed that the worker was not fired but, rather, quit his employment by going home rather than driving his truck more slowly after management admonished him about his rate of speed. Although the miner acknowledged that he had been warned on several occasions in January about driving too fast, it was not disputed that he called MSHA’s field office to report brake defects on his haul truck. When MSHA inspected the mine on Jan. 18, 2002, it confirmed that the parking brake was disconnected, but found that the service brakes were operational. There was a dispute in testimony given by Bennett and by the company president as to discussions that resulted in the severance of Bennett’s employment at the mine.
ALJ Feldman found that MSHA was not obligated to demonstrate that Bennett’s complaint was meritorious, as long as the agency showed that it was not frivolous. Because it was undisputed that the mine operator was aware of Bennett’s protected activity — the MSHA complaint — and the record contained contradictory evidence as to whether Bennett quit or was terminated, the ALJ concluded that MSHA satisfied its burden of demonstrating that the worker should be temporarily reinstated.
Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call (301) 595-3520.