Coal Tattoo

A new review by the Department of Labor Inspector General has found that federal mine safety regulators may have improperly excluded coal mines from reviews for potential “pattern of violation” actions that would have stepped up enforcement at their mines.

House Education and Labor Committee Chairman George Miller, D-Calif., has posted a summary of the IG report here, and the basic thrust is that the U.S. Mine Safety and Health Administration appears to have not examined potential patterns of violations at some mines because of “resource limitations.”

The IG summary comments:

We are very concerned about mines removed for reasons other than appropriate consideration of the health and safety at those mines. MSHA is not subjecting these mines to the enhanced oversight that accompanies potential POV status, yet it does not have evidence that they reduced their rate of significant and substantial violations. As a result, miners may be subjected to increased safety risks.


Miller reacted to the preliminary IG findings this way:

The Inspector General’s alert raises very serious concerns that go to the heart of health and safety of mine workers.

MSHA’s handling of the “Pattern of Violations” tool contained in the Mine Act has become increasingly controversial following the Upper Big Branch Mine Disaster, especially after it was revealed that an MSHA “computer programming error” kept the Massey Energy operation from receiving the stepped up enforcement and sanctions involved in a POV order.

Chairman Miller, along with Reps. Nick Rahall of West Virginia and Lynn Woolsey of California and Sen. Jay Rockefeller of West Virginia asked the IG to examine this situation after the MSHA computer glitch was revealed. Miller had already released a list of “dangerous mines” that avoided a POV warning letter or order because of their increased appeals of MSHA citations that could form the basis for such an action.

According to the IG’s preliminary findings, MSHA Coal Administrator Kevin Stricklin (above, with Rep. Rahall during the Upper Big Branch rescue effort)  in March 2009 directed his staff to only consider POV warnings for one mine per field office and no more than three mines per district office. IG investigators were told this “guidance was necessary to address resource limitations.” However, the IG concluded, “this instruction set a limit that was inappropriate for this enforcement program.”

IG investigators found that, during POV reviews from 2007 to 2009, MSHA removed 21 mines from consideration for tougher enforcement — with at least 10 of those being removed because of Stricklin’s March 2009 order to his staff.

Obama administration officials and Chairman Miller are portraying this as a problem left over for them by the previous administration at MSHA and in the White House.

In a prepared statement, MSHA chief Joe Main said:

The more one looks at the Pattern of Violation system we inherited, the more problems one finds. That’s why, in April, we announced that we’d be rewriting the Pattern of Violation rules this year.

And Chairman Miller said in his statement:

Prior to Assistant Secretary Main’s confirmation, MSHA obstructed a key safety enforcement tool that could have endangered the lives of mine workers.

It’s true that the current Pattern of Violations regulations and the screening criteria were written by the Bush administration, under former MSHA chief Richard Stickler. It’s also true that Joe Main wasn’t confirmed until October 2009.

But heck, President Obama took office in January 2009, so this March 2009 decision to cut way back on using the POV tool clearly happened on his watch, though early in his administration.  And Joe Main was nominated in July 2009, and working for the Department of Labor as an MSHA consultant for months between then and his confirmation.

There are many questions here to be answered:  When did the current MSHA leadership find out about this and what action did they take? Why haven’t they made this information public before now?  What other huge problems with the POV system — or other of MSHA’s enforcement tools — are folks at the agency sitting on, without telling the public or the Congress?

Sen. Rockfeller hit on another of the central questions in a statement issued this evening. The word from the Democratic leaders in Congress until now has generally been that budget improvements provided by Sen. Robert C. Byrd to address MSHA’s systematic failure to complete required mine inspections in 2006 and 2007 had fixed any significant resource issues at MSHA. But as Sen. Rockefeller now says:

It is clear MSHA has needed additional resources for some time, and I will insist on a full assessment of their resource gaps as well as an action plan for affected mines by Monday, June 28. Agency resources should not be a factor when MSHA determines whether or not to take enforcement action to protect miners from safety violations.