Members of the House Committee on Education and Labor heard from all sides today about the growing backlog of citation and penalty appeals pending before the federal Mine Safety and Health Review Commission.
We had a discussion the other day on Coal Tattoo about this issue prior to the hearing, and I’d certainly be interested in more thoughts from anyone who watched the hearing Webcast or read the testimony. (All that stuff is available on the committee Web site here).
To me, the bottom line was this testimony from Joe Main, assistant labor secretary in charge of the U.S. Mine Safety and Health Administration:
… The starting point for any analysis of the backlog is the obligation of mine operators to eliminate the conditions that lead to so many violations. With so many citations and orders issued, it is imperative that mine operators improve compliance. To do that, the mining industry must expand its health and safety management programs and more thoroughly and regularly identify problem areas, inspect mines and abate hazards in advance of MSHA inspections.
If MSHA can inspect workplaces and find these conditions, mine management should be finding them as well. If mine operators would take greater ownership of mine safety and health, it would be beneficial for all involved. Workers would be safer, the number of violations will be reduced, and penalties will go down. Instead of paying fines to the government, companies can invest that money back into ensuring the optimum health and safety at their mining operations.
That’s from Joe Main’s prepared testimony, which is available here. You can also watch the portion of his testimony he had time to prevent to the committee:
The crux of the issue here is that appeals by mine operators of MSHA citations and fines have more than tripled since 2006, when Congress and the agency began tougher enforcement and increased monetary penalties in the wake of the deaths at Sago, Aracoma and Darby.
Testimony during today's hearing revealed:
-- New case filings with the federal Mine Safety and Health Review Commission increased from 2,400 in 2005 to 9,200 in 2009.
-- Before the new enforcement efforts and stiffer penalty schedules took effect, mine operators appealed one in three fines; Today, mine operators contest two-thirds of all fines.
-- In 2006, the Review Commission had a backlog of 2,100 cases. Today, the backlog is more than 16,000 cases.
And, MSHA officials and labor leaders are increasingly concerned that some of the nation's worst mine operators -- those with the most citations and highest fines -- are using the appeals process not to legitimately challenge MSHA actions, but to simply delay having citations and fines finalized, and thus avoid increased enforcement through the Pattern of Violations process.
United Mine Workers of America President Cecil Roberts told the House committee:
The Union and coal miners hailed passage of the MINER Act as the dawn of a new day to improving coal mine health and safety. However, those increased protections are being subverted by the huge contested rate that has overwhelmed the government's ability to deal with its caseload, and MSHA's practice of reducing assessments when operators contest them.
... The existing system rewards operators that file contests. While this is not a new development, with the new and higher penalty structure, operators have increasingly availed themselves of the contest procedure as a means of reducing the costs attributable to their mine health and safety violations.
... This happens in many ways. One example is that when contested citations are tied up in the commission backlog, there is delay to the enhanced penalties that are supposed to apply for repeat violations. While the intent was to motivate operators NOT to have repeat violations, instead they are able to avoid the higher penalties by delaying a final order that would show the repeat violation.
And, while Joe Main told the committee the case backlog "has not affected MSHA's ability to require operators to abate hazardous conditions," he also said it has "severely reduced the deterrent value that penalties were meant to have." Most importantly, Main explained, until cases involving significant and substantial (S&S) violations are final -- meaning they've gone through any appeals -- MSHA can't use them to cite an operator for a "pattern of violations" and force mines to shut down until compliance improves. According to Main:
We believe some operators contesting S&S violations may be doing so because it delays the finding of a pattern, adding to the backlog and delaying MSHA from using this enhanced enforcement tool at their mines.
At today's hearing, National Mining Association lobbyist Bruce Watzman repeated the industry's standard argument that blames the appeal backlog on former MSHA chief Richard Stickler, who essentially stopped allowing informal appeals by operators of citations and fines. According to Watzman:
... These administrative actions created an irrational process which increased the number of citations at the same time it eliminated an informal procedure for contesting them, forcing operators into a time-consuming, expensive adjudicatory process that does nothing to increase mine safety.
Watzman said "the actions leading to this are detailed on the timeline attached to this statement." Well, I looked at the timeline, and to me, it made pretty clear that by far the largest increase in appeals happened before Stickler did away with the information contest procedure.
And regardless, Joe Main told lawmakers he is basically bringing back this process for informal appeal of citations and fines -- going even farther than a March 2009 MSHA policy (implemented before Main joined the agency) to allow informal appeals, but only after mine operators actually filed a formal appeal with the Review Commission.
According to Main's prepared testimony:
In March 2009 MSHA implemented the Enhanced Safety and Health Conference, which was designed to reinstate early conferences to settle cases but still delayed conferencing until after a civil penalty was proposed and formally contested by the mine operator. This significantly added to the Commission’s caseload because proposed penalties that are formally contested, even if settled, must proceed through the Commission process and be reviewed and approved by an ALJ.
After a review of the conferencing process it appears that the best approach is to hold the MSHA health and safety conference, if requested by the mine operator, prior to MSHA issuing a proposed penalty assessment, and provide the mine operator with an estimated penalty amount based on the standard assessment formula. The MSHA field conferencing and litigation representatives (CLRs) and potentially other personnel would review the facts of the violation and the inspector’s determination of negligence, likeliness of occurrence, etc., as before. The resolution of these cases does not require Commission approval unless they are later contested. MSHA will implement this change through policy.
It will be interesting to see how all of that unfolds, and especially to watch house Democratic leaders in Congress respond to what an MSHA run by a former UMWA safety director does about this problem.
Committee Chairman George Miller, D-W.Va., spent a lot of time with miners' widows and orphans after the disasters of 2006 and 2007, and he pointed out Tuesday he promised to try to make sure nobody else goes through what those families did. Here's the video of Miller's opening statement: