Tales from the Front: March 31 Senate HELP Hearing on Mine Safety

From Adele Abram, Esq., ASSE’s Federal Representative –

Today, I represented ASSE at the hearing before the Senate HELP committee on mine safety and health issues. Although the topic was intended to focus on the one-year anniversary of the Massey Upper Big Branch (UBB) mine disaster, the discussion was more broad-ranging. The witnesses were MSHA Assistant Secretary Joe Main, and the Department of Labor Inspector General Office’s Elliott Lewis. Senators participating were chairman Harkin, ranking member Enzi, and Isakson, Paul, and Blumenthal. In addition, Sen. Manchin (D-WV) attended and participated in questioning by permission, although he is not a HELP member.

In his preliminary statement, Harkin called the UBB mine “a disaster waiting to happen” and he urged Main to use every tool in MSHA’s arsenal to ensure it does not happen again. Although much evidence from UBB is sealed because of a pending Justice Department criminal prosecution, he said it was clear that ignoring safety was the norm at the mine, and it exhibited flagrant disregard for compliance. He criticized MSHA for never placing a mine under “Pattern of Violations” sanctions (POV) even though it has had the power since 1978, and said the agency actually created obstacles to the POV process. He acknowledged MSHA is now conducting more aggressive inspections and is taking some action to alleviate the case backlog at the FMSHRC. He lauded Main for working quickly to address problems that have crippled the agency. He added that Congress is not absolved of the need to legislate despite MSHA’s recent actions.

Sen. Enzi said that mine safety will improve because of UBB and urged that the hearing focus on general mine safety issues. He accused MSHA of knowing about problems at UBB and failing to act before the accident, especially because computer glitches prevented UBB from being identified for the POV list. He also asked the IG witness to address the issue of poor inspector training, and said that a report indicated that MSHA has not completed all necessary inspections, further accusing the agency of withholding this report from Congress (he asked that it be produced for the record). Enzi suggested that MSHA should focus on “bad mines” and not inspecting the safest mines and citing toilets, trash cans, and unshoveled snow, as it often does. He mentioned Wyoming mining operations and put in a plug for more use of coal for energy. He also noted that he was an author of the 2006 MINER Act, which was passed with bi-partisan support, and suggested that Congress should “go for what is achievable” rather than engaging in political grandstanding. No other senators made opening statements.

In his testimony, Joe Main said that, despite MSHA’s efforts in the wake of UBB, legislation is still needed to protect miners. He noted that he could not discuss UBB because of the DOJ investigation, but said that June 29, 2011, MSHA would hold a briefing to share public information.  He said, in general, it appeared that methane, provided fuel for an initial ignition, which turned into a massive explosion, fueled by accumulated coal dust.

Since UBB, MSHA has expanded its enforcement tools by using “impact inspetions” to target more than 200 mines with special concerns, including poor compliance histories, histories of accidents, miner complaints, poor workplace examination procedures, or those that tried to coverup violations or impede inspections. He also discussed MSHA’s recent actions to obtain injunctions to close mines, under Section 108(a)(2) of the 1978 Mine Act. He called the POV process “broken” and said MSHA is working to fix it by new policies and an ongoing rulemaking. He also addressed the case contest backlog, attributing it to fear of POV and using this as justification for reverting to “issued” citations rather than those that have been finally adjudicated (as is proposed in the POV rulemaking). MSHA has also initiated a pilot program that restored pre-contest conferences for citations in three districts. It is currently evaluating the outcome of that program in reducing case contests.

In summary, Main said that MSHA needs additional tools that only Congress can provide, and also needs to change the culture of safety in some parts of the mining industry. He asked for Congress to assist in addressing Pattern of Violations, greater power for injunctive relief, enhancing criminal penalties, especially with respect to those who provide advance notice of inspections, and beefing up whistleblower protections. “Legislation that creates a fairer and faster process is urgently needed,” he concluded.

Assistant Inspector General Elliot Lewis testified about its audits of MSHA and its work reviewing MSHA’s current POV program. Previous audits found that:

• MSHA’s accountability program, designed to ensure that mine inspections are performed effectively, was not well designed and needed to be strengthened;
• MSHA was not fulfilling its statutory inspections mandate due to resource limitations and a lack of management emphasis on ensuring that inspections were completed;
• MSHA did not have a rigorous, transparent review process for roof control plans; and
• MSHA did not ensure its inspectors received required periodic retraining, and so inspectors may lack up-to-date knowledge of health and safety standards and mining technology.

With respect to POV, the IG office completed its audit in September 2010, and found that in 32 years, MSHA had never successfully exercised its POV authority. It did not adopt implementing regulations until 1990, although it had authority to do so back in 1977. It did not verify implementation of mine operators’ written POV corrective action plans, and it had computer errors that caused unreliable results in identifying mines that met POV criteria. The IG witness was also critical of MSHA’s laboratory, which has serious delays in testing rock dust samples that could create a risk of explosion.

Mr. Lewis made 10 recommendations concerning the POV program to MSHA, some of which are being adopted in the proposed rule, such as considering using issued citations as well as final orders to demonstrate a pattern, assuring POV selection criteria are transparent to allow stakeholders to ascertain their status, ensuring that POV decisions are based solely on health and safety conditions at each mine, documenting qualitative/quantitative factors used to make POV decisions, establishing guidance on review and monitoring of corrective action plans by operators on the POV, and eliminating the requirement that a mine be on “active” status to be screened for POV.

There was over an hour of question/answer by the members present, with virtually all questions being addressed to Joe Main. Main explained the weaknesses in the current injunctive power system and said that the goal was not to shut down mines but to keep them operating in compliance. Manchin asked Main to provide data indicating whether increased coal production is linked to increased violations.

Main also discussed the agency’s use of “flagrant” penalties, which were authorized in the 2006 MINER Act, and he said that 142 mine operators have received these. He could not explain to Sen. Isakson’s satisfaction, however, why such penalties were never used at UBB prior to the accident. Isakson also was critical of MSHA’s inconsistent inspections at Georgia surface nonmetal mines, and Main said that more than  half of MSHA inspectors have 2 years or less experience, but they are working on a special inspector training program as well as procedure reviews. He denied that the agency is issuing “bad paper” and said only a fraction of citations are vacated.

Sen. Rand Paul said, “Every regulations doesn’t save lives and the issue is whether the cost of regulations stifles production.” He seemed unhappy with MSHA’s new respirable dust rule and said that black lung disease is already trending down so new rules are not needed. He said MSHA claimed the rule (which takes effect in May 2011) will cost $30 million, but he thinks it will cost $30 million per mine. He requested that Main provide for the record all reports and scientific studies that form the basis for the rule and show a need for the rule.

In discussion with Harkin, and responding the Enzi’s suggestion about targeting inspections more at coal, Main claimed that more miners have died in the past two decades at metal/nonmetal mines than at coal mines. This seemed aimed at ensuring that the aggregates industry is not exempted from mine safety legislation as it was in the 2010 House version. He said that while some different rules for different types of mine might make sense, they need the same whistleblower protection rules for all miners. There was also additional discussion of the case backlog project, funding for which expires in July 2011 but which may be extended through September 2011. Additional funding for this has also been included in the FY 2012 budget.

There was discussion between Enzi and Main about MSHA’s failure to complete all spot inspection for mines with high levels of methane liberation, and Main countered that all of the wall-to-wall inspections were completed, just not the spot inspections. When asked why the agency was using resources to inspect sand and gravel operations instead of gassy coal mines, Main countered that these have injuries too and one cement plant is on the POV list.

Blumenthal questioned Main about current whistleblower protections and Main said that inspectors try to talk to miners about their rights, but there needed to be more protections and higher penalties for whistleblower violations.

Finally, Manchin discussed with Main the issue of state agency inspections and MSHA inspections sometimes being contradictory, and whether perhaps they could be alternated so there would be more inspector presence at mines. Main was opposed to the idea that states could do the inspections while MSHA did training. He said the federal government has primacy over mine safety and health.