A Long Road for Mine Safety Enforcement Reform

Even though a five-month inspection blitz uncovered widespread disregard for miner safety, the Mine Safety and Health Administration (MSHA) is unlikely in the near term to be able to force behavioral or cultural reform among the nation’s most recalcitrant mine operators.

From April through August, MSHA inspectors caught 108 mines breaking mine safety laws and regulations and cited the mines’ owners and operators with 2,660 violations, 45 percent of which were determined to be “significant and substantial,” the most serious category of violations.

The agency is conducting what it calls “impact inspections” that target mines with historically poor safety records. On Sept. 20, MSHA released the results of the impact inspections from April through August, which included 111 mines, but is continuing the initiative.

The impact inspections were conducted in part as a response to an April 5 explosion at the Upper Big Branch mine in West Virginia that killed 29 miners. The tragedy was the worst mining disaster in the U.S. since 1984.

Despite having been thrown into the national spotlight since the disaster, and despite MSHA’s renewed focus on dangerous mining conditions, Massey Energy, the Upper Big Branch mine’s owner, continues to violate mine safety laws. Most recently, during a Sept. 28 inspection of another Massey-owned mine in West Virginia, MSHA found that miners were making dangerous, unapproved cuts into the coal seam and that the mine foreman was not monitoring the mine’s air supply or ensuring adequate ventilation. The violations led MSHA to close parts of the mine.

“This situation was very frustrating and totally unacceptable,” Massey spokesman Jeff Gillenwater told the Huffington Post. “We appreciate MSHA’s blitz for uncovering conduct that we did not uncover ourselves.”

Gillenwater’s comments stand in contrast to the attitude previously expressed by Massey. Massey CEO Don Blankenship has blamed regulation for mine accidents, and he proclaimed in July that, had Massey further resisted MSHA regulation, the explosion at Upper Big Branch may have been prevented.

The difficulty MSHA faces cracking down on dangerous mines stems in part from its struggling Pattern of Violations (POV) program. MSHA can add mines to its POV list, triggering additional monitoring and enforcement actions, but MSHA has never added a mine to the POV list in the program’s 32-year history.

Mine owners and operators are often able to keep themselves off the POV list by contesting MSHA citations before the Federal Mine Safety and Health Review Commission (FMSHRC). As the industry strategy has grown in popularity, FMSHRC has accumulated a backlog of more than 16,000 cases.

The POV program drew increased scrutiny after Upper Big Branch when MSHA acknowledged that a computer glitch had kept the mine off a list of POV candidates. In a Sept. 29 report, the Department of Labor Inspector General found other problems with the POV program’s computer systems and determined that MSHA was not pursuing POV listings aggressively enough.

MSHA began following through on pledges to reform the POV program when it announced on Sept. 28 that the agency will use new criteria to place mines on the POV list. However, MSHA chief Joe Main called the new criteria a “stop-gap measure” and acknowledged that legislative changes or new regulations are required to truly reform the program.

Congress took action in July when it approved $22 million in additional funding for FMSHRC, to reduce the backlog of contested citations, and MSHA, to spend on mine safety enforcement.

MSHA’s impact inspections may actually be undermining efforts to improve the POV program and reduce the FMSHRC backlog. The Washington Post reported Oct. 11 that an uptick in contested citations has mirrored the surge in MSHA violations. The backlog has grown to 18,100 cases, the Post reported.

With the help of the funds approved by Congress, FMSHRC hopes to eliminate the backlog in three years, according to the Post. “The commission is very determined to take whatever steps it can to attack the backlog,” General Counsel Michael McCord told the Post.

 

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