New Inspector General report: MSHA dropped mines from enforcement reviews

June 23, 2010 by Ken Ward Jr.

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.

Updated:

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.



7 Responses to “New Inspector General report: MSHA dropped mines from enforcement reviews”

  1. Ken Ward Jr. says:

    The Department of Labor issued this statement in response:

    On April 13, 2010, following the explosion at the Upper Big Branch Mine that killed 29 men on April 5, U.S. Rep. George Miller, chairman of the U.S. House of Representatives Committee on Education and Labor, asked the U.S. Department of Labor’s Office of Inspector General to review the Mine Safety and Health Administration’s Pattern of Violation Program. Later that month, the inspector general began its review, with the full support and cooperation of MSHA leadership and staff. An interim report was released today.

    Both Secretary of Labor Hilda L. Solis and Assistant Secretary of Labor for MSHA Joseph A. Main welcomed the independent analysis provided by the inspector general; reiterated that the POV system, created by the previous administration, is fundamentally flawed and needs to be fixed; and pledged to revise administrative procedures that govern POVs for the 2010 determinations, as well as to continue to work on legislative and regulatory long-term reforms.

    The Department of Labor announced in April that it would work on new regulations that govern the POV system. Today, the department further announced it will change its administrative policies regarding POV to the extent permitted under the law. These new policies will govern the 2010 POV determinations expected in October and assure that all mines are dealt with according to these policies.

    Assistant Secretary Main’s letter to Chairman Miller, which outlines the agency’s short- and long-term plan to fix the broken POV system, is attached. Secretary Solis and Assistant Secretary Main issued the following statements today:

    U.S. Labor Secretary Hilda L. Solis: “The Office of Inspector General reaffirms what we already knew: The Pattern of Violation process is badly broken. It’s clear that we need to scrap the current system and put a new system in place that is focused on protecting miners’ safety and health. I’m working with my former colleagues in Congress to develop a legislative response, and at the same time I’ve asked MSHA to begin work on both regulatory and administrative fixes. The bottom line is that the system we use this year will be different than the system we used in the past, and we’ll continue to work to get this system right in order to protect the safety and health of America’s miners.”

    U.S. Assistant Secretary of Labor Joseph A. Main: “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. We’re also conducting a review of the internal policies that govern Pattern of Violations so we can begin to change the way we deal with persistently problematic mines this year. We welcome the inspector general’s continued partnership in identifying problems we need to fix, and we remain committed to doing whatever it takes to fix this badly broken system.”

  2. Celeste Monforton says:

    I have a hard time accepting the assertion that MSHA’s lacks adequate resources to do its job. The agency’s annual appropriation is about $347 million with enforcement responsibility over about 12,000 mining operations. (Only a few hundred of these are underground coal mines.) I’m not suggesting the task is not challenging, but effective management of its resources is essential.

    The worker health and safety agency that truly lacks resources is OSHA. Its annual appropriation is $513 million (of which $106 million is awarded to States the run their own OSHA programs.) OSHA and these State programs are responsible for 9 million workplaces, many of which have hazards that are as potentially deadly as mine sites (e.g., refineries, gas drilling, shipyards, chemical plants.)

  3. blue canary says:

    Is there a list of all the POV mines?

  4. Rex B says:

    Ken,
    It’s always the same with the government agencies; any hint of failure on their part is met with, “we inherited this problem from the previous regime” and “lack of funding”. We all know this is B.S.
    The POV has been in force for several years (before Miner Act) and the way citations were handled was simpler. The mines could contest a citation that they disagreed with. They could submit a request for review within 10 days. MSHA would schedule an informal hearing where both sides could present their cases before an MSHA “hearing officer”. (This person was an experienced former MSHA inspector, well-versed in the law, and by all appearances, objective in these cases.) The hearing officer would listen to evidence from both sides and make a determination as to the disposition of the disagreement. He had authority to uphold, modify, or vacate citations as he saw fit. In event that the mines still disagreed with his decision, they could take it on up the legal chain to a higher authority for a decision. In many cases, the case would be settled and the disagreement would end in the informal hearing. MSHA has now abandoned this informal hearing in favor of the “administrative law judge” route. As we know this has created a huge backlog of cases that previously would have never gone to this level. They don’t need more funding, they just need to re-establish the informal hearing system that worked so well before.
    It’s also true that more mines are contesting citations than ever before. Here are several reasons:
    1-MSHA has added many inspectors to their payroll over the past several years. Many of these are new to the job, (in fact, I know of some who have never even worked in a coal mine) and in their zeal to “do good”, they write some violations that may not be correct. If they are incorrect, they should be contested.
    2- MSHA has increased the number of inspection hours at all mines, with their new staff. More hours, more violation paperwork gets written. MSHA management expects results (citations) from their inspectors. Simple as this; an inspector must write paper, or it is assumed that he is not doing his job. Same as a state patrolman that writes no tickets, right?
    3- The fines that MSHA levies have increased exponentially in later years. Especially the ones that the inspector tags as “S&S”. Mines can’t afford to NOT contest them.
    That MSHAs system is clogged up with the debris is their own making and should be changed, for sure. But, for them to blame the mines or funding or the previous administration for their woes is just finger-pointing and excuse-making. I’m sick of it.
    We definetely do not need any knee-jerk reactions that create more useless laws and useless bureaucracy or a new “czar” that the current administration is so fond of. MSHA just need to get their management straightened out or replaced, and their heads where they belong.
    Rex B

  5. […] week’s bombshell from the Labor Department Office of Inspector General raises lots of questions, among them why the folks at the U.S. Mine Safety and Health Administration didn’t […]

  6. […] just reported that the Obama administration is refusing to release a complete list of the mines that were removed from consideration for tougher enforcement because of supposed “resource limitations” at the U.S. Mine Safety and Health […]

  7. […] U.S. Mine Safety and Health Administration just released the names of the other two mines that it dropped from pattern of violations review. They […]

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