If MSHA needed more resources for safety enforcement, why didn’t President Obama ask?

June 25, 2010 by Ken Ward Jr.

This 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 previously reveal a major change to the way they implemented the Pattern of Violations program.

So far, though, Labor Secretary Hilda Solis and MSHA chief Joe Main aren’t saying anything beyond their prepared statement, which tried to blame the whole thing on a previous administration — despite the fact that the March 2009 orders to only review 1 mine per field office and no more than 3 mines per district for POV orders came after President Obama took office.

In its preliminary report, the Inspector General said MSHA made this decision based on “resource limitations.” So far, neither the IG nor MSHA nor the DOL has explained exactly what that meant.

There weren’t any major indications from the Obama administration of any resource limitations. In fact, top administration officials repeatedly said the exact opposite — to the public, the press, the mining community and Congress.

Let’s review …

In his first budget proposal, President Obama proposed only a modest increase for MSHA. And even then, Labor Secretary Hilda Solis played the numbers pretty fast and loose, trying to make the proposal look better than it really was.

Look back in history, to that Obama administration budget proposal, and a “Web chat” that Labor Secretary Hilda Solis did just two months after MSHA severely limited its POV enforcement because of these “resource limitations.”

Kathy Snyder of Mine Safety and Health News asked Solis why she didn’t bother to mention MSHA in her opening statement about the budget, and the secretary responded:

The budget includes $1.3 million and 15 FTE in new funding to strengthen the metal and nonmetal enforcement program. The request level will allow MSHA to enforce safety and health laws vigorously and complete its inspection mandate.

Someone named “Bruce” from Washington, D.C., asked Solis:

The budget presentation makes no mention of mine safety and health. Can you provide information on funding for the Mine Safety and Health Administration?

She responded:

The budget includes $1.3 million and 15 FTE in new funding to strengthening the metal and nonmetal enforcement program. The request level will allow MSHA to vigorously enforce safety and health laws and complete its inspection mandate.

Yours truly asked Solis:

Why does OSHA get a 10 percent budget increase, while MSHA only gets 2 percent? And why isn’t mine safety highlighted in any of these budget materials? Is protecting the nation’s miners simply not a priority for the Department?

She responded:

Over the past several years, MSHA has received large budget increases, which have allowed the agency to step up its enforcement significantly, including the ability to conduct 100 percent of its mandatory mine inspections. On the other hand, OSHA’s budget has remained flat over the last few years. For example, between 2001 and 2009, OSHA’s staff levels fell by nine percent, while MSHA’s remained steady. In addition, the FY 2010 increase for OSHA’s state programs is the first significant increase in years.

The Obama administration’s promises that it had adequate funding to protect the nation’s coal miners were not limited to their first year in office, or to comments in a Web chat.

Consider earlier this year, when the president actually proposed a cut in the agency’s coal enforcement budget.

Less than a month before the Upper Big Branch Mine blew up, Solis testified before a House budget committee:

The Budget will ensure a 100 percent completion rate for all mandatory safety and health inspections; support MSHA’s enhanced enforcement initiatives, which target patterns of violation, flagrant violators, and scofflaws; and allow MSHA to promulgate new standards related to reducing health hazards associated with exposure to coal mine dust and crystalline silica. The request also allows MSHA to continue its work to enhance mine rescue and emergency operations and will support the Department’s high priority performance goal — which targets the most common causes of fatal accidents and is aimed at reducing workplace fatalities at mining sites by five percent per year based upon a rolling five-year average.

A few weeks after that testimony, she repeated similar statements in a hearing before a Senate Appropriations subcommittee, including this now every interesting part:

The Budget will ensure a 100 percent completion rate for all mandatory safety and health inspections; support MSHA’s enhanced enforcement initiatives, which target patterns of violation, flagrant violators, and scofflaws …

It is almost impossible to believe that MSHA would not have received help if agency officials had told lawmakers — especially West Virginia Sen. Robert C. Byrd — that it needed more money to properly review mines for patterns of violations. In large part because of Sen. Byrd, MSHA’s budget for coal enforcement has increased by 36 percent since the Sago Mine Disaster in 2006. Sen. Byrd and others have seen to it that MSHA not only got as much money as the administration asked for — but far more than that.

I have a hard time forgetting that just a few years ago, MSHA wasn’t exactly open and honest about admitting the magnitude of the problems it faced simply completing its mandatory safety inspections at underground coal mines. Agency officials tried repeatedly to downplay this issue, in the face of continued Gazette reports to the contrary. Finally, an Inspector General’s report confirmed the size and scope of the problem — citing “resource limitations” as the reason.

The next time Hilda Solis or Joe Main appears before Congress, they’re probably going to have some serious explaining to do …

21 Responses to “If MSHA needed more resources for safety enforcement, why didn’t President Obama ask?”

  1. Ellen says:

    QUESTIONS, QUESTIONS, QUESTIONS…
    >Where was Kevin Stricklin?
    >Did Stricklin ask for more money to enforce the POV policy?
    >Did Stricklin alert higher-ups that he was limiting enforcement?
    >If he did tell someone, who did he tell and when?
    >If he did not, why not?
    >Did he place any concerns in writing?
    >What would have happened if a mine actually was placed on a pattern — did he have the money for the manhours required at that point?
    >Would his inspectors have been able to meet 100% inspection requirements if several mines were placed on POV status?
    >Why is MSHA not telling us the names of the 10 mines that did not receive the “potential” POV warning letters?
    >What about the other mines that were dropped off of the list because of closing or a change in production?
    >Were there still people underground doing maintenance or removing equipment at those mines?

  2. Rob McGee says:

    I certainly haven’t been following it with the great detail you’ve given here, but since Sago and prior to UBB, MSHA’s received a ton of money earmarked for various initiatives and programs. And post UBB, they’ve received additional money to correct the POV shortcomings, although change has yet to come.

    MSHA has and most likely will continue to be more reactive than proactive. And based on everything I’ve been reading, coupled with the lack of change to date coming out of UBB, they’ll be reacting more fairly soon.

    I believe what Mr. Main should do is Google his own name and revisit all the critical comments he’s made over the years about the group he now leads. His chair must be very warm.

  3. rhmooney3 says:

    The “numbers game” or mindless-boxing-checking as its called by government employees — doing stuff that produces no results.

    Political appointees like giving the appearance of that efforts are being made instead of results being achieved — both political parties don’t want to offend their backers.

    The basic issue is how do we know whether or not government is doing its job? What verifications does it provide?

    Even MSHA which has a lot of eyes on it does not get results from its efforts.

  4. Thomas Rodd says:

    To be fair, isn’t it true that MSHA has been “tightening the screws” in some ways in the past year in terms of safety enforcement?

    Or, maybe they haven’t?

    Anyhow, absent a permanent MSHA monitor in every mine (maybe that would be a good idea, and the coal company could pay for it), it seems likely that coal companies will often work near and sometimes over the safety line, which seems to be is a leading cause of accidents. Redundant systems, erring on the side of caution, etc., all cost money, and that affects the bottom line, in a highly competitive business.

    I worked on a survey party on an interstate highway construction job, and one day saw a guy sitting in a lawn chair with an umnbrella, necxt to three masons who were building a stormwater collection box. I asked my boss who that guy was, saying “I want his job.”

  5. Thomas Rodd says:

    And, to continue, the boss said — “he’s a state inspector. If he were not sitting there, they would just pour a cement pad, and put a manhole on it, fill around it, and say there was a box there!”

    Lesson learned – trust, but verify!

  6. Ken Ward Jr. says:

    Tom,

    In what way do you believe MSHA has been “tightening the screws”?

    Ken.

  7. c w kauffman says:

    The Obama Administration in spite of “Change We Can Believe In” really is the third term of the Dubya Administration. Look at the facts in both Upper Big Branch and Deepwater Horizon. Corporate campaign contributions with the total backing of the Supreme Court have totally bought and destroyed the regulatory agencies. There are other examples too numerous to mention. The “Little People” who created the real wealth and who were the backbone of our nation are going to have to remove the crooks and incompetants who occupy positions at all levels in all the governmental entities. These can no longer be “fixed” but they must be replaced!

  8. rhmooney3 says:

    Inspecting (and enforcing) is not the answer. There has to be transparancy and accountable to assure proper results. No amount of watching can insure what actually happens.

    More attention is given to who enters and exits stores or motels than what goes on inside mines.

    Think of the drunk pilots, train engineers, etc. that we trust but don’t verify their abilities to perform when there are easily done breath analyzers and responsiveness tests.

    How are employees able to misuse computers, phones and even their worktime when such things are simple to monitor? FedEx can track its packages and employees by each minute.

    That we continue to trust and not verify is too costly to continue.

    Ten percent of the mines (or anything else) is where ninety percent of problems can be found…and ten percent of those problems cause ninety percent of the damage — the main thing is to keep the Main Thing the main thing.

    Most of what MSHA does isn’t what does the most for mine safety.

    (It’s like chasing the flies instead of fixing what causes the flies to be there.)

  9. Thomas Rodd says:

    Ken, believe it or not, that was not a rhetorical question.

    I have had the impression that there had been a lot more inspections and more citations in the last year, and that’s what I was referring to in terms of “tightening the screws.” The question mark at the end of the remark is to ask if people think it’s an accurate impression or not. Sorry if I seemed argumentative — whish is the default mode on most blogs, but thankfully often not the case on this one.

    Whatever tightening if any MAY have occurred, it clearly wasn’t enough to prevent the deaths of 29 innocent miners.

    rhmooney, I like your trenchant generalizations and they sound very sensible. Now — how about ten specific recommendations for practical improvements that MSHA could put in place, by emergency rule or policy — today? Isn’t that (at least in part) what we need?

  10. Ken Ward Jr. says:

    Tom,

    I understand … I was just wondering seriously if there were particular things that gave you that impression … You weren’t argumentative at all … I was just trying to inquire of what had made you think that.

    Joe Main’s centerpiece program — prior to April 5, anyway — was dealing with black lung. But as I’ve written on Coal Tattoo before, his record on that thus far is far from impressive:

    http://blogs.wvgazette.com/coaltattoo/2010/03/26/msha-and-black-lung-disease-still-no-commitment-to-tighten-the-legal-dust-limit/

    And his other initiative, the Rules to Live By campaign, was criticized publicly by one of Joe’s biggest supporters:
    http://blogs.wvgazette.com/coaltattoo/2010/02/21/msha-oppegard-critical-of-joe-main-initiative/

    So that’s why I ask, seriously, what you’ve heard or read to give you that impression. In the best spirit of blogging, I’m trying to learn from a reader.

    Ken.

  11. rhmooney3 says:

    These are actions that should be undertaken by any group or for any activity, especially so, considering the communication abilities that exist.

    Five specific actions for MSHA and all regulatory agencies:

    – Establish risk-based tiers — levels 1 through 5 — to classify its inspectable units/work activities. Focus resources and efforts on those units/activities in the higher risk levels — focus on what brings important results.

    – Establish roundtables to involve representatives from interested parties in the formulation, implementation and assessment of the agencies policies and activities. Those roundtable discussions and recommendations should be done as online forums.

    – Encourage and recognization innovations — successes and failures — plus do expansive awards and incentive programs for both explanary performances and improved proformances

    – Adopted quality-control and continuous-improvement processes into all activities

    – Perform frequent surveys of employees, those being regulated and of interested parties to obtain ongoing feedback and be responsive to it

  12. Thomas Rodd says:

    rhmooney3, I hope some MSHA people read your suggestions. What do you think of having a full time MSha inspector in the mine? It sounds silly until you think of the security guard who stands inside the local Rite Aid every evening. He definitely discourages something or he wouldn’t be there!

  13. rhmooney3 says:

    An inspector is only inspecting about 20% of his work hours, at best. Travel consumes much of the other work hours as does pre-inspection review and post-inspection paperwork.

    Inspection is not an efficient activity…and it definitely does not assure compliance.

    In my experience, targeted inspections and infrequent inspection sweeps are more effective than doing routine inspections.

    For sure, there always needs to be some level of inspection and enforcement, however, better results can be achieved through encouraging and enticing compliance than enforcing it.

    Every company wants to show “gold stars” after their names — somewhat akin to credit ratings.

    In regards to MSHA:

    Its inspection and enforcement resources should be shifted to underground operations;

    It should require that mine communications be made public records — immediately online. Mine radio/phone communications should be streamed online and archieved.

    Critical mine areas should have continual video recorders and certain equipment should be “black boxed” to capture all information including methane trigger events (and any bypasses of safety shutoffs).

    Pursue individual civil penalties vigorously and require all proposed penalties be escrowed in order to be appealed.

    Serious safety offensives should be classified as threats to human life and considered felonies instead of safety law violations. Such convicted felonies should shown online and be permanently banned from any mining related activity.

    All officers and board members should be legally liable for company violations of safety and other laws if their actions or inactions in anyway contributed to such violations — with the burden of proof being upon them to successfully demonstrate otherwise.

    Every MSHA inspector and employee should also be subject to felony prosecution if their actions or inactions put human lives at risk.

    Lastly, every miner, mine employee, company official and all MSHA employees should sign annual certifications attesting to their knowledge and acceptance of such responsibilities and potential penalties.

    (If this does not improve mine safety, nothing will.)

  14. Thomas Rodd says:

    Good ideas, rhmooney3. Some seem entirely plausible, some push the envelope, but that’s how creativity works.

    It’s not the American way to station enforcement personnel at workplaces to protect safety –I can’t think of examples, except maybe at nuclear plants(?).

    But really, why isn’t it a simple and effective recipe for restraining unsafe behavior? It’s essentially a continuous inspection regime.

  15. rhmooney3 says:

    Being part of the legal profession, you must fully realize the limitations of holding even officers of the court accountable for their actions.

    Nearly everything I offered can be done without changing laws or rules or even expending more funds.

    None it will be done because doing so removes the smoke-filled rooms and under-the-table activities that politicans and special interests rely upon.

    Lastly: I’m not being creative. This is basic stuff that have been used elsewhere for more than a half century.
    http://www.youtube.com/watch?v=ehMAwIHGN0Y

  16. rick abraham says:

    Having enjoyed the lowest number of fatalities in mining’s history last year, one might conclude EVERYTHING and EVERYONE doesn’t need FIXED. Is there room for improvement? Yes, and a lot of it. First, I suggest a complete review and update of the mining laws to account for the advanced methods of mining and technology introduced into the industry for the last thirty years. Many laws operate to suppress its use. Remaining focused on the basics such as roof control, moving of equipment, methane and dust control ( turning scrubbers “on” instead of “off” included) will go a long way. One might ask, if the all of the R&D, investment in equipment, man hours to install, man hours of training to use, government inspection man hours for inforcement for “post accident” use had been focussed on accidient (explosion ) prevention, would we be talking about UBB? And, as a follow up on some other comments. I think some may fail to understand the vastness of a mine and its complexities. Look at last year’s fatals and explain how a “continious inspection regime” or recording all phone conversations would have prevented any of them. Let us not forget a MSHA inspector was inside UBB less than ten minutes before the accident. Last year, better think again. There are several cases that if an inspector had been present, the result, two deaths. The tough facts, some events are simply just what they are called, accidents. And thank God for the fact the miners, companies, and regulators have worked hard together to place one of the most complex jobs in some of the most challenging conditions to NUMBER 15 in fatals/man hours worked. Fishing, farming, aircraft pilots, roofing, policeman, garbage collectors, electrical installation workers, construction workers and yes taxi drivers are all more likely to get killed on the job than a coal miner. Surprised??????

  17. rhmooney3 says:

    Our government(s) protect us well — not.

    6/27/2010
    Commentary: We ARE the Small People
    http://www.opednews.com/articles/We-ARE-the-Small-People-by-April-Moore-100627-203.html

    (Excerpts)

    We are’the small people.’ Even though we number more than 300 million, and even though we have a federal agency tasked with making big oil companies conduct their operations safely, we are the ones bearing the pain of damage that grows daily as oil continues to gush into the Gulf, out of control. We ‘small people’ are paying because the ‘big people’ at BP used their might to make sure the Mining and Minerals Service did not interfere with BP’s cheating on safety or with its failure to prepare for a possible accident.

    While BP is losing lots of money in payments to victims, in trying to clean up the disaster it has caused, and in plummeting stock prices the corporation’s giant size protects it from the kinds of costs we’small people’ must pay for much smaller crimes. Any one of us ‘small people’ who kills another person faces life in prison or even execution. But ‘big people’ who run corporations like BP never face execution. And prison sentences are almost as rare. Despite the 11 human deaths BP caused when the Gulf rig exploded, it is unlikely that those deaths will cost BP anything more than money.

    Unfortunately, there is nothing unique about BP. The tragic deaths of 29 Massey coal miners in West Virginia recently, and the irresponsible behavior of giant financial institutions that brought us to the brink of Depression, were caused by the greed of ‘big people,’ unchecked by the federal agencies charged with their oversight.

  18. JP says:

    Why is there all the talk of achieving 100% mandated inspections, yet no one thinks MSHA has been increasing enforcement??

    How is it a mine can be subject to “quarterly inspections” while you find surface construction sites are inspected every 4 weeks?

    How is it a worker that is wearing safety glasses whom gets something in his eye can now be written as a citation (weeks after the ‘accident report’ has been filed and there were no lost workdays)?

    Exactly when does a burnt out light bulb on a piece of surface equipment used only in daylight hours become a citation?

    The facts of the matter are that the number of mines, the number of miners and the tons produced annually has changed very little over many years while the number of inspections, citations and more importantly, the amount of penalties assessed has skyrocketed over a very short time.

  19. rhmooney3 says:

    JP,

    More inspections, citations and skyrocketing penalty amounts have resulted in what?

    Doing more of the same gets more of the same results.

    Rick Abraham,

    How many mining-related deaths are okay, especially those that are preventable?

    Yes, for sure, other wrongful deaths are of concern too.

    And I fully agree that inspecting in itself is not a solution for mine safety — as you correctly say, even continuous inspection cannot see everything.

    P.S. I am definitely not for more government involvement. The industry itself has to address its problem — with results not just more effort.

  20. […] the mines that were removed from consideration for tougher enforcement because of supposed “resource limitations” at the U.S. Mine Safety and Health […]

  21. JP says:

    More inspections, citations and skyrocketing penalty amounts have resulted in animosity for the part.

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