December 2001

Regulations

Rock Law--Rock-et Science

Blue Circle/Lafarge’s Innovative Program ROCKs

FMSHRC

Rock Law

Rock-et Science

By Hugh Thatcher, Esq.

The extracurricular activities of former President Clinton provided the nation with voluminous quantities of water-cooler jokes and late-night television material, and the President’s most quoted phrase was probably “I did not have sexual relations with that woman.” What escaped the public’s notice was Clinton’s subsequent attempt to explain what seemed to be, on its face, a blatant lie: “I made this statement on Jan. 26, 1998, although not in response to any question. In referring to ‘sexual relations,’ (sic) I was referring to sexual intercourse.”

Unfortunately, many operators find themselves in a similar semantics argument when the friendly MSHA inspector comes ’round to check things out. Mr. MSHA shows up at the mine, you gather up a miners’ representative, and off the three of you go. Mr. MSHA stops at some point—maybe next to a highwall—and a conversation that is something along the following typically occurs:

MSHA: That rock looks like it’s going to fall down. I think it’s an imminent danger.

Operator: What rock?

MSHA: That rock.

Rep: That rock?

MSHA: No, that rock.

Operator: That’s not a rock, that’s a pebble.

Rep: Looks more like a boulder.

MSHA: Do you know which rock I mean?

Operator: That rock.

MSHA: That rock?

Rep: Forget about that rock, what about the one over there?

MSHA: Which rock?

Rep: That rock.

Operator: What rock?!

As should be obvious from the above, the Abbot and Costello-style dialogue about “that rock” is not very effective at both presenting your position regarding “that rock” and convincing the inspector that he is wrong. For those operators who deal with stockpiles, it’s not too difficult to imagine a similar scenario regarding an inspector’s opinion on whether a pile has been properly trimmed. What you need to remember is that a verbal battle with an inspector may potentially get you in deep trouble—in the heat of the moment, and in your desperate attempt to define what “rock” means, you may say something that isn’t quite true. When the inspector finds out about your lack of candor (he will) and asks you about it, you are then faced with three lousy choices: admitting that you lied; affirming your lie (lie number two); or engaging in verbal gymnastics a la Clinton.

So how do you avoid getting stuck between “this rock” and “that rock?” There are some basic ground rules that will help:

1. Don’t lie—ever. If you are convicted of lying to a federal mine inspector during an investigation, you can be sentenced to five years in prison.

2. Diffuse the inspector’s interrogation by changing the focus of his inquiry. Ask what standard the inspector is applying, get a copy of the regulations and read through the regulation with the inspector. Contrary to what MSHA says, the regulations are not self-explanatory when it comes to determining when they apply. Next, ask the inspector to explain why he thinks the standard has been violated. Most regulations contain words that are not defined, such as “sufficient” or “suitable,” and which are legitimately subject to different interpretations.

3. Document the alleged violation exactly as the inspector does. If the inspector takes video, photos or air samples, take your own. See if photos and video can be shot from a different angle in addition to what the inspector chooses—a different perspective may not show the alleged condition. If the inspector writes the citation at the end of the day, and addresses a condition observed earlier, send someone to document the alleged condition as soon as possible to preserve your ability to challenge the inspector’s recollection of the facts.

4. Write down the names of all witnesses and persons whom the inspector interviews or talks with. Also, write down all comments that the inspector makes during the inspection.

5. Remember that statements (including those that are written or recorded) given voluntarily during the inspection can be used to incriminate you or the company and that the inspector does not have to give you Miranda warnings beforehand.

6. Without a warrant or a court order, the inspector only has the power to require an operator to produce records that are required to be kept by the Mine Act—no more. If an inspector requests Mine Act documents, keep a log of what is requested and reviewed by the inspector.

For all non-Mine Act documents, ask the inspector to put the document request in writing. If you decide to give the inspector the documents, keep a log of what documents you hand over.
The above suggestions are only the beginnings of a defense to a citation and are by no means comprehensive or hard-and-fast rules. Common sense goes a long way when Mr. MSHA comes to visit. The more common sense you exercise, the less likely you will need to hire a lawyer to explain what you meant by the word “the.” It’s not rocket science. If it was, people like me wouldn’t be doing it.

Hugh Thatcher is an associate in the Denver office of Patton Boggs LLP.

Blue Circle/Lafarge’s Innovative Program ROCKs

By Therese Dunphy

In today’s business environment, producers can no longer afford to sit back and evaluate business from a purely economic standpoint. Other key drivers such as technology, global economic integration, urbanization, mobility, instantaneous information, changing consumer preferences and rising social and environmental expectations are all driving change in the marketplace. That was the message shared by John Gray, director of environmental services for Blue Circle Cement, now Lafarge, at the National Stone, Sand & Gravel Association’s Environment, Safety and Health Forum held Sept. 23-25 in Pittsburgh. Gray made the comments during a preview of the association’s new Environmental Management System template, to be rolled out in the next several months.

“These factors have established a new global market that challenges business managers with a new economic, social and political paradigm,” said Gray. “With this change, global business leaders now realize that business decisions cannot just be made on an economic basis, but also must consider the environmental and social impacts.”

The EMS system

“An EMS is a ‘catalyst’ that ignites a synergy between environmental concerns and the business planning process by identifying significant environmental impacts of a company’s activities, products and services and by discovering opportunities to conserve materials and energy,” said Gray.

Programs such as the one developed by Blue Circle Aggregates in the United States (BCAg) involve five main elements: policy, planning, implementation, checking and corrective action and management review.

“These elements interact in a cycle of continual improvement (see Figure 1),” said Gray. “It is this key Plan-Do-Act-Check cycle of continual improvement that clearly sets the ISO 14001 system apart from other environmental programs.”

According to Gray, an effective EMS—regardless of ISO 14000 qualifications—must have two key elements: a framework of documentation and a strong environmental organization.

Figure 1

Developing an EMS

BCAg began to develop its environmental management system approximately five years ago. The group was charged by parent company Blue Circle Industries PLC with implementing a program that met the standards of ISO 14000.

When Gray and Joyceann Lee, environmental manager, aggregates, first began to investigate the process, they were somewhat overwhelmed by what seemed to be an arduous task. After attending a couple of seminars, they sought assistance from Georgia Tech, which helped them implement an ISO 14000 type of program for the company’s eight quarries in Georgia.

As Gray points out, environmental management is a long journey that begins with baby steps. In BCAg’s case, it started with the formation of the EMS Team. A volunteer from each quarry and main office was invited to participate on the team. The sole qualification was that the team member have a genuine interest in the environment.

According to Gray, the team identified environmental aspects, developed objectives and targets, and considered legal and other requirements. Through employee surveys, the team gathered a list of more than 1,200 items to consider. The team looked at these and determined four main areas of consideration: air, water, noise and waste. Interestingly, these matched the company’s key peformance indicators.

Throughout the 18-month implementation process, BCAg worked with Georgia Tech to both develop the program and document, train and write policy statements simultaenously. BCAg conducted numerous audits throughout the process, including a final audit. The audits were used to evaluate processes and compile any final tasks necessary to meet ISO 14000 standards. They also allowed for simultaneous training of employees. For example, when BCAg would ask employees about environmental policy and an employee was unsure of the correct answer, the audit team would use the opportunity to conduct additional training and reinforce the goals of the program.

By the end of 1999, all the aggregate and materials operations in the United States and Canada had such programs in place.

“Every where except North America, Blue Circle decided to get external accreditation because it’s much more important in Europe and other areas than it is here,” said Gray. “That was never a goal for us. We just wanted to know we had an effective working system.”
employee buy-in

One of the keys to a successful program is for employees throughout the organization to accept and abide by the policies and principles laid out.

“If you focus on what’s important to employees and what’s important to stakeholders, you can move the responsibility to the appropriate level,” said Gray. “That’s what the system forces you to do: not just have one environmental manager, but many people with environmental responsibilities doing their jobs with a new awareness.”

For example, the EMS Team came up with a unique way to convey its environmental policy statement to employees throughout the company. Traditional policy statements can be difficult for some employees to understand because they are frequently highly technical and written for the college educated.

The team came up with a simple, yet meaningful, message: ROCK:

R — Reduce pollution.
O — Ongoing improvement by meeting goals.
C — Comply with regulatory requirements.
K — Keep our plant safe and clean.

ROCK became a key part of BCAg’s environmental system. It summed up the core principles of the program, supplemented a three-page environmental policy statement and served as the company’s training point.

To reinforce the message, the company printed cards with the ROCK message on it, provided ROCk t-shirts and baseball caps to employees who knew what it stood for and decorated boulders and signs at a number of former BCAg operations with the ROCK logo.

“When you raise the awareness level, make it fun and put it at a level where people can buy into it, people do tune their engines better, turn light bulbs off and buy more energy efficient equipment,” said Gray. “If you stay on track and on line with your communications and you’re persistent, you’ll see improvement year after year.”

Ems Benefits

As BCAg learned, the benefits of continual improvement can be economical as well as environmental. From 1997 to 2000, the company achieved reductions in three of their four performance indictors—all while production increased nearly 20 percent. At the same time, it also found that employee involvement can also aid in the recruitment and retention of personnel.

“You have deeper meaning in your job, and it gives you greater satisfaction,” observed Lee.
Companies that have an EMS may also qualify for entry into the Environmental Protection Agency’s National Environmental Performance Track, which is endorsed by NSSGA. The program recognizes top environmental performers who exceed compliance standards.

According to Gray, participating facilities receive incentives such as:

• Reognition and networking;
• Streamlined monitoring;
• Enforcement benefits;
• Low priority status for routine state and EPA inspections; and
• Financial benefits for advantageous loan terms under the State Revolving Loan program of the Clean Water Act.

Sustainability

Implementation of an EMS program is a big step for any company. But, it can also serve toward a larger goal—bringing the industry one step closer to sustainable development.
“Sustainable development is a scary topic here in the United States because people don’t really understand it,” said Gray. “Sustainability is making sure that your company stays profitable but addresses its obligation to its stakeholders.”

While the industry has begun to move beyond setting up barriers between operations and surrounding communities, sustainable development requires a true change in mindset, but one that offers great benefits in the future.

“By taking into consideration the environmental impacts of their operations, companies can protect their right to operate, reduce costs, reduce liabilities and increase customer loyalty and market position,” said Gray. “Lafarge is developing its long-term vision as part of the World Business Council’s Sustainable Development Program. You don’t get there in year one or even year 21. It’s about making the correct business decisions each and every year to get you there.”

And that’s what it’s all about, taking those baby steps toward environmental goals. At BCAg, Gray points out that those goals are the result of an evolutionary process that began with compliance, proceeded with risk management and evolved into business management and sustainable development.

Therese Dunphy is the executive editor for AggMan.

FMSHRC

Federal Mine Safety and Health Review Commission

CEDAR LAKE, OFFICIALS TO PAY $88,853 TO SETTLE CASE ARISING FROM FATALITY

Cedar Lake Sand & Gravel Co. and two company managers have agreed to pay civil penalties totaling $88,853 to settle a case arising from a fatality at the Wisconsin sand and gravel operation.

MSHA originally proposed total penalties of $263,250 against the company, company officer Eric Gilbert and on-site foreman Clint Gerlach, but agreed to vacate three orders and to reduce the remaining penalties in the settlement agreement.

The fatal accident occurred in August 1999, when the victim, 49-year-old Ronald Ferguson, was dumping waste material over the edge of an impoundment roadway at Cedar Lake’s pit in Hartford, Wis. According to MSHA’s citation, the edge of the roadway collapsed and Ferguson’s front-end loader slid off the elevated embankment and overturned, killing him.
After its investigation, MSHA cited Cedar Lake for seven alleged violations of Part 56 standards, alleging an inadequate dumping facility, failure to visually inspect the dumping location, an inadequate berm where the accident occurred, failure to enforce seat belt use and defective brakes on the loader.

Gilbert was cited under Sec. 110(c) of the Mine Act for three alleged violations of dumping site and berm standards, and Gerlach was personally cited for four alleged violations of dumping site, berm and brake standards. MSHA initially sought penalties totaling $236,000 from Cedar Lake, $15,500 from Gilbert and $12,750 from Gerlach.

MSHA Vacated Three Orders

In the settlement, MSHA agreed to vacate three orders alleging failure to visually inspect the site, failure to enforce seat belt use and failure to maintain adequate berms on the impoundment roadway. The company agreed to pay reduced penalties totaling $77,453 for the remaining four violations—including a $453 penalty for failure to remove the defective loader from service, instead of the initially assessed $50,000 penalty. The motion stated that MSHA determined that this violation did not contribute to the fatal accident.

The settlement motion also noted that Cedar Lake has closed the impoundment roadway.
The agency also dropped its berm charges against the company managers, and Gilbert agreed to pay reduced penalties totaling $6,500 for two violations. Gerlach will pay reduced fines totaling $4,900 for three violations.

MSHA also agreed not to refer the case to the Justice Department for criminal prosecution.
The settlement motion stated that the company and the managers did not admit the validity of the citations and orders, except for very limited purposes under the Mine Act.
ALJ T. Todd Hodgdon approved the settlement agreement in an Oct. 12 decision.

LIMESTONE COMPANY TO PAY MSHA $12,000 TO SETTLE CASE ARISING FROM FATALITY

Bellco Materials Inc. has agreed to pay MSHA a reduced $12,000 civil penalty for a violation of an equipment blocking standard to settle a case in which its plant foreman was crushed to death beneath a front-end loader.

MSHA initially proposed a $35,000 penalty against the limestone company, but agreed that the level of the company’s negligence was “moderate,” not “high” as charged in the citation.
ALJ Avram Weisberger approved the settlement agreement between the agency and Bellco in an Oct. 5 decision.

The fatal accident occurred in April 2000 at Bellco’s No. 2 Claremore Mine, a limestone operation located in Rogers County, Okla. According to papers filed in the case, the plant foreman, 54-year-old Richard Hey, was inspecting the front-end loader for an oil leak when he was run over by the loader.

After its investigation, MSHA cited Bellco for an S&S violation of §56.14105, charging that “no steps were taken to block the loader against hazardous motion prior to the victim going underneath the loader.”

In the settlement, the agency agreed that the level of the company's negligence was “moderate,” not “high,” based on several factors. Hey was an experienced miner and supervisor and, only two months before the accident, he had completed refresher training for supervisors provided by the Oklahoma Miner Training Institute.

Hey was the only employee exposed to any potential hazard and Bellco showed good faith in abating the violation, the settlement motion added. The company provided additional training in blocking mobile equipment to all employees after the accident.

Ellen Smith is the owner of Legal Publication Services, Pittsford, N.Y., which publishes Mine Safety and Health News. Melanie Aclander is legal editor for Mine Safety and Health News.