MSHA’s Office of Circumlocution

By Ellen Smith

The nation may have a new President with grand ideas about the Freedom of Information Act, but let’s be clear: at MSHA, nothing regarding FOIA has changed.

The same people are still in charge of FOIA, offering ridiculous redactions and refusing to divulge information which, previous to 2002, was openly shared with the public.  The latest redaction battle comes from Tony Oppegard, a miners’ rights advocate.   (See Oppegard’s response to MSHA’s FOIA denial.)   Oppegard has filed 135 cases on behalf of miners, but in his latest case, MSHA is denying Oppegard information that had been routinely handed-over.  MSHA’s denial is based on FOIA’s “law enforcement exemption.”  However, this information has been made public since the founding of the 1977 Mine Act itself. 

Mine Safety and Health News (MSHN) has an outstanding FOIA request dating back four years when Labor Dept. employees were given a one-day training seminar on FOIA. We requested any information handed out to the employees, which included some MSHA personnel.  To this date, nothing has been released. 

In another case, when MSHN asked for an unredacted copy of the whistle-blowing allegations surrounding the investigation of the Martin County Coal Impoundment failure, we were given the same redacted report, this time with different exemptions. We asked for the legal memo on a decision on what constitutes a haul road, but some of the information was also redacted. While we have appealed these cases, we’ve been told by the Labor Department in the Martin County case that there are so many appeals ahead of us that it will be a long wait for an answer.

When it comes to FOIA requests, MSHA has become like the “Office of Circumlocution” in the Charles Dickens novel Little Dorrit.  For those of you unfamiliar with Little Dorrit,  no one in the Dickens novel knows the history of the Office of Circumlocution, but

“it has a grip over all of British industry to stultifying effect.”

It is run by members of the Barnacle family who force all visitors to file endless paper requests that go nowhere.

“The Office of Circumlocution is a sea of obfuscation that cannot be navigated.”

No one denies the importance of MSHA’s mission – to protect the lives of this nation’s miners.  But what has somehow gotten lost in this mission is the freedom to have access to information that is gathered with tax-payers’ dollars.  The Mine Act is very clear that information regarding mining and mining conditions is to be made public to help keep miners safe.  However, more than safety is involved.  There is also the issue of good-will. Access to information leads to trust on all sides.  There cannot be wheeling and dealing when all information is public. If a decision is made, then the public has a right-to-know how the decision was made.

Freedom of information – that is the right of any American to access records of a  government agency paid for with our tax dollars –  is just as important as the regulations that govern mining operations.  Regarding FOIA, MSHA is spewing red tape and accomplishing nothing, except alienating the American people – miners and industry alike. 

Mr. Oppegard called MSHA’s latest information refusal, “Utter rubbish.”  Our feelings exactly.

Ellen Smith is the owner and managing editor of Mine Safety and Health News.  She has been coverning miners’ health and safety since 1987.

Comments

  1. #1 J Turner
    September 15, 2009

    Information on (practically non-existent?) 105C protections
    one case in limbo Docket #WEST 2006-568-DM

    To whom it may concern,
    Please forward this to ALJ Bulluck, Her contact info can not be found on
    internet, please give me her contact info if any of you who read this
    email have it…THANKS.
    It’s been a very long time since hearing & post hearing report, please
    let me know if somebody interested wants a copy of my post-hearing
    report & the notes from hearing. I give permission also for any
    governmental parties or Miner’s Rights advocates interested enough in justice for individuals rightfully pitted against powerful international business.

    Attached is my request for any information regarding my 105C
    Discrimination Proceeding (Docket #WEST 2006-568-DM), and complaint
    about injustice of the system for Miner’s. Please forward to appropriate
    parties, I can’t seem to find relevant contact information, or other
    105C Miner relevant info on internet.
    Thank You,
    Miner Jayson Turner

    What Follows is attached, and will be mailed.
    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

    JAYSON TURNER (Miner) ) Request for communication from the
    P.O.Box C ) Office of Administrative Law Judge
    Pine Mountain, California 93222 ) regarding the status of the A.L.Judge’s
    ) judgement on this Miner’s 105C wrongful
    Petitioner, Claimant ) termination Discrimination Proceeding
    ) and all or any other details regarding same.
    )
    v. ) Docket No. WEST 2006-568-DM
    ) WE MD 2006-14
    NATIONAL CEMENT COMPANY of )
    CALIFORNIA, INC. VICAT, Internat ) Lebec Cement Plant
    ) Mine ID: 04-00213
    Respondent. )
    _________________________________) September 14, 2009

    Honorable Administrative Law Judge Bulluck

    Jayson Turner respectfully requests an update on your making the

    Judgement on my discrimination proceeding. I last requested the status of

    Judgement in JULY, 2008. The response I received from your staff last
    year was

    that you would surely get to it, and that it would be in a few months
    probably.

    I again don’t want to offend you in this inquiry, but I’m tempted to
    think that

    there is in fact no fair representation of Miner’s rights, that
    everything from the

    Commission down is slanted to uphold big money interests. I still have
    not been able

    support my 3 daughters to go even to community college, no medical
    retirement, no

    retirement plan etc. resulting from my wrongful termination for making
    safety

    complaints. I know that I have an honest and strong 105C case against

    multi-billion dollar Vicat ( National Cement). How can MSHA and ALJ
    facilitate

    an Operator to be so disrespectful of Miner’s rights ? I have heard
    nothing from

    you or your office, or National Cement regarding my case. I am legitimately

    concerned that all the efforts made to follow the spirit of the 105C
    provisions has

    proved them to be only a pretense of concern for Miners rights;
    validated by own

    experience with the impunity of MSHA and ALJ decisions (or lack of them)
    which

    statistically benefits the Operator (by little or no substantial
    penalties to the

    Operator ) and discourages confidence for the non-powerful Miners to
    claim their

    right to work safely (by no real protection for Miners from wrongful
    termination;

    Unions no longer offer any protection and MSHA is the only real hope of
    protection

    from 105C termination). Miner’s success rate in 105C cases is so poor
    and so un-

    compensating, that a Miner cannot find a lawyer to assist them.

    While intently trying to follow 105C self representation provisions, I was

    discouraged by: the inability or unwillingness of the ALJ to timely &
    effectively

    compel most of my requested (National Cement / VICAT controlled)
    “discovery”,

    by the throwing out of my photographic evidence of reported hazards (due
    to a

    false claim by National Cement that it was posted on the property that
    picture

    taking was not allowed), by the unwillingness of ALJ to accept “newly
    considered

    relevant” exhibits (between the court hearing and the post hearing report

    submission), and by the indifference of the ALJ system to notify a
    painstakingly

    involved Miner of the status of his Discrimination Proceeding.

    From what I can find published, and from my personal experience with

    M.S.H.A. and the A.L.J. , big money interests / operators have
    strategically deterred

    105C fairness through lack of cooperation, stalling, and mis or under
    representation

    of facts to the point that MSHA and ALJ won’t even try to pursue many of
    the facts

    of alleged violations. The burden of proof is made so difficult for the
    Miner, and the

    few “successful” 105C cases so un-compensating. Justice has failed 105C
    Miners.

    Your Honor, could I have a status report concerning details of your

    deliberations (and any and all other details) on my 105C case please.

    Signed; Jayson Turner

    Home Phone 661 242-3000
    Jayson Turner
    (p.o.Box C)
    Pine Mountain, CA 93222 cc National Cement (VICAT) Lawyers , Commission,
    MSHA, etc.

  2. #2 J Turner
    September 15, 2009

    I was fairly rebuked for inquiring about the status of my discrimination case over a year ago. My life was radically altered when wrongfully terminated 3 years ago. Neither western MSHA or the ALJ has given any substantial indication that they have any intention of upholding Miner’s 105C wrongful termination protections. Just more “delay & deny” tactics
    (just like all the wealthy mine operators are advised to do).

  3. #3 Jayson Turner
    February 20, 2011

    It’s interesting to me (10 yrs Miner fired for complaining about safety issues; MSHA Docket WEST 2006-568-DM) , that recently Federal court gave a mine superintendent (“Operator”?) a probationary sentence (no lying for 6 months?) for training issues at one mine, and at another mine (#04-00213; rich VICAT/NCC) supervisors and company lawyers can get away with documented “misrepresenting” truth with impunity.
    I’m unable to get answers to some important Miner rights questions from my only FMSHRC contact: Docket Officer Jean Ellen, and so I am now asking other MSHA officials to reply.
    This Miner (and Miners’ Representative) challenges the fairness of MSHA & FMSHRC’s existing application of the Mine Act as it is unfolded upon the miner (representative of non-support of other miners). As was the case of MSHA’s denial temporary reinstatement of me during investigation of non-frivolous 105C investigation, the elimination of possibility of legal assistance to all Pro Se Miners due to the historically pitiful potential Remedy(based on researching available Pro Se Discrimination cases), MSHA’s denial of safety hazard investigation reports to a Miner’s Representative (MSHA safety complaint #379110), FMSHRC-ALJ’s refusal to penalization of Operator for making false claims & refusing to provide timely discovery(multiple official Moves to A.L.J. refused; before the FMSHRC now), MSHA’s denial of FOIA requested Mine Act provisioned discovery (directly related to 105C case “protected activity” claims; FOIA Tracking #581386), and the licensing of the ALJ to circumvent published Miners’ discovery & court proceeding provisions as stated in the Mine Act(6+ officially recognized Moves before the FMSHRC: calling for the ALJ to compel Discovery, exercise some penalization on the Operator for gross non-compliance with Mine Act Discovery provisions & to allow my right to present my case by documentary evidence, 29CFR, Part2700,Subpart G, section 2700.63(b); 8 pages pre-hearing official request to ALJ Bulluck (in the court room before hearing started; dated Jan 15, 2006; doc. C attached) …rejected by the A.L.J.
    Far from the intentions of the Mine Act, I’ve experienced extremely discouraging behavior by MSHA and FMSHRC-ALJ in their lack of consideration for the Mine Act “rights” of miners.
    Although there is the historically cumbersome legalese expected from the established Operator, political pressures to grease the wheels of commerce (under-enforcement by & under-staffing of Courts caused caseload chopping), and the plain disrespect of Miners’ rights exhibited by some prestigious individuals in authority, the aim of the Mine Act (encouragement of Miners to participate in Mine safety; through Operator compliance with it’s protective provisions) can still be achieved through fast & brief mine closures & MSHA’s losing some of their self imposed “action” limitations. Such a change in MSHA behavior would be an encouragement to Miners (that MSHA has their back) and would only result in improved mine efficiency. MINERS would like to see the factual statistics of the 289 Discrimination Complaints filed with MSHA since 2009.
    Please explain if the “False Claims Act”, or cooperation with a Miner’s 105C Discovery provisions are enforceable against a legally cumbersome Operator. What protection do you afford Miners from the rich litigious Operator ?
    Please fully answer; pursuant to 29 C.F.R. § 2700.69(a).
    I also request procedural advice concerning Miner’s(Representative of Miners) available recourse in getting the Government to address pro-operator activities & non-enforcement of miners’ Mine Act provisions by MSHA and FMSHRC-ALJs ( outside of Docket WEST 2006-568-DM) as a “class action” type activity.

    Jayson Turner (Miner / Miners Representative)
    661 242-3000 jturner@calneva.org P.O.Box C, Pine Mountain ,CA 93222

    Reference:
    Appeal of ALJ decision under review by FMSHRC.
    Refer. also: “open meeting” discussion on Oct.7th,2010 (at: http://www.fmshrc.gov/new/meetings.html website reference: Docket #. WEST 2006-568-DM, “October 7th, 2010”, “Audio of Meeting”)

    88888888888888888888888888888888888888888888888888888888888888888888888888888888888888888888888888
    >3 pages document; Motion to FMSHRC dated Jan 14,2011
    >20 pages document A; “FMSHRC approved for use” official communication to FMSHRC dated 12-30-07
    >2 pages doc.B; my request to ALJ – FMSHRC to “please don’t allow any more concessions to NCC” 12-20-07
    >8 pages doc.C; pre-hearing official request to ALJ Bulluck (in the court room before hearing started) to use my right to present my case by documentary evidence, 29CFR, Part2700,Subpart G, section 2700.63(b)…rejected by the A.L.J., doc dated Jan 15, 2006
    >1 page doc.D; official request for answers on 12-31-07 official motions to A.L.J., doc dated Jan 7, 2008
    > 1 page doc.E; official motion for ALJ on 3-25-2008 to exercise measures against NCC for failing to comply with the ALJ’s Briefing Order, doc dated April 30, 2008
    > 1 page doc.; FOIA Appeal to DOL (unanswered), FOIA Tracking # 581386, doc dated Feb 6, 2010
    > 1 page doc.; FOIA Appeal to SOL (unanswered), FOIA Tracking # 581386, doc dated 5-24-07