Leave it to NPR’s Howard Berkes to work Super Bowl champions, Olympic medalists and mine disaster investigators into the same little piece of journalism. As Howard reported yesterday on NPR’s Two-Way blog:
Super Bowl and World Series champions do it. Olympic athletes do it. War heroes do it. They all get to visit the White House and meet with an admiring President of the United States.
This Wednesday, the federal mine safety regulators who investigated the deadly 2010 explosion at the Upper Big Branch coal mine in West Virginia will travel to the White House and Capitol Hill. An email to the group lists morning tours of the White House and the Capitol and a “special White House event” at 2 p.m.
Rumors about MSHA staff to the contrary, President Obama isn’t even going to be in the building at the time. It’s been quite a long time — his strong rhetoric in a Rose Garden speech just four days after the UBB mine blew up and his moving speech at the memorial service two weeks later — since President Obama could be bothered to talk about the health and safety of our nation’s coal miners. And it would sure seem like a strange time for the president to be putting himself anywhere near MSHA officials.
It’s going to be quite a stretch for even the Labor Department’s public affairs staff to somehow paint the next bit of news expected out about MSHA and UBB as anything but bad … That’s because what we’re all really waiting for — and have been waiting for since at least early December, when the accident investigation finds were made public — is for MSHA to release its “internal review” report on the worst U.S. coal-mining disaster in nearly 40 years.
The best we’ve been able to get from MSHA about timing is agency chief Joe Main’s comments back in December that internal reviews usually come out a two or three months after accident investigation reports, and this one would probably follow that timeline. (Not for nothing, but I went back and checked. Accident investigation reports for Aracoma, Darby and Sago were released on March 29, 2007, April 12, 2007, and May 9, 2007, respectively. MSHA released all three of those internal reviews on the same day, June 28, 2007. After Crandall Canyon, then-Secretary of Labor Elaine Chao opted not for an internal review, but an independent report on MSHA’s actions. That independent report was released on July 24, 2008, the same day that the agency’s accident investigation report came out).
There are plenty of reasons to believe that any honest appraisal of MSHA’s actions prior to the April 5, 2010, explosion at UBB will be terribly harsh. Check out our previous coverage summarizing these issues here and here, and additional Gazette news reports here, here, here and here.
In the absence of an actual release of the internal review, and MSHA being the sort of place it is, rumors are going pretty wild about what’s happening with the internal review. It didn’t help matters when MSHA officials belated confirmed publicly back in late December that internal review team leader Jack Kuzar had retired from the agency effective Sept. 1.
Recently, I spoke with Kuzar. He is indeed now retired and living outside of Wilkes-Barre, Pa., where as a longtime MSHA district manager he stood up to some pretty nasty attacks from local coal operators who didn’t think federal mine safety laws really ought to apply to them. A DOL Inspector General’s report on the issue concluded:
We found no indications or corroborating evidence to support allegations that District 1’s enforcement activity was excessive, unjustified, or used to harass mine operators who were critical of MSHA.
I asked Kuzar straight out if he had been pressured to not fully examine MSHA’s potential failings at Upper Big Branch, or if anyone had tried to force or even convince him to change the findings of his team. He told me:
There was nobody holding my hand. They didn’t give me any directions like, ‘you’ve got to sweeten this’. People didn’t like what they were being told, but nobody put any undue pressure on me.
Kuzar declined to talk to me about what his team had found, saying he didn’t think it would be professional for him to discuss the findings before his old team had actually released its final report. As a reporter, I have to say it’s refreshing when somebody isn’t trying to get attention by telling me secrets, leaking information or bad-mouthing somebody else. And most people I’ve talked to have good things to say about Jack Kuzar. They tell me he’s a straight-shooter.
But it is important to remember that Kuzar left MSHA effective Sept. 1, with the internal review’s investigation phase completed and a report about three-quarters finished. What’s been happening since then? We don’t really know, and certainly Democrats in Congress, who you might think would be exercising some oversight over MSHA, certainly aren’t going to be asking their friend Joe Main any tough questions about it.
House Education and the Workforce Chairman John Kline, R-Minn., is asking some questions, though.
As we previously noted, Rep. Kline wrote to Labor Secretary Hilda Solis back in December, asking about Kuzar’s departure from the internal review team:
It is highly unusual, if not unprecedented, for the head of an internal review team to depart in the midst of such an important examination. That such a departure occurred 16 months into the review and as the final report was nearing completion is also troubling.
Rep. Kline asked Secretary Solis for a variety of documents: Records about Kuzar’s departure from MSHA, information about who was taking over the internal review, and a timetable for completing the review and issuing a report.
Secretary Solis couldn’t be bothered to respond herself. She had her assistant secretary for congressional and intergovernmental affairs, Brian V. Kennedy, handle it, with this Dec. 23 letter, telling Rep. Kline that George Fesak is in charge of the “overall direction” of the internal review in his role as director of MSHA’s Office of Program Policy Evaluation and Information resources (interestingly, MSHA has never moved internal reviews under the umbrella of its Office of Accountability, even as part of its latest shuffling of divisions, so arguably the most important “accountability” reviews are handled by a completely different part of the agency). Kennedy also told Kline that “to facilitate completion of the internal review” a member of the team, William J. Francart, had been made the “technical team leader” for the UBB internal review.
The Internal Review Team’s work has continued unabated despite this change in personnel, and the release of the team’s report has not been delayed as a result of the change. Reports from the internal review team historically are published two to three months after the release of the accident investigation report. The team does not anticipate that this report will be an exception to that schedule.
Just last week, Rep. Kline wrote back (directly to Secretary Solis) with this Feb. 9 letter, calling the labor department’s initial response “grossly incomplete” and saying it did not “allay my concerns” about the progress of the internal review:
As stated previously, it is highly unusual, if not unprecedented, for the head of an internal review team to depart in the midst of such an important examination. The fact that this departure occurred 16 months into the review, as the final report as nearing completion, and that it took three weeks to appoint a new technical leader, is troubling.
Rep. Kline repeated his request for documents and records about the internal review’s leadership change and the progress of the review.
Now, I had a chance to talk to Joe Main and to MSHA coal administrator Kevin Stricklin about the internal review two weeks ago when they were in Charleston for the annual West Virginia Coal Association Symposium. Joe in particular seemed surprised about some of my questions, and was — interestingly enough — not shy at all about confirming that he, Kevin and other top MSHA officials were not only reviewing a draft of the internal review team’s report, but were in fact editing the thing:
As part of the process, there’s a review that is taking place. That review is to ensure the accuracy of the product. I have to sign off on this report, so I have a responsibility to be sure it’s accurate. I didn’t write these rules. These rules were in place when I came here.
That’s right … Not only is the only review of MSHA’s actions prior to this mine disaster being done by MSHA itself, but the top officials of the agency are editing the internal review team’s report. Sounded a little odd to me, too. But Joe Main was right. There is an MSHA policy that says this is the way it’s supposed to work. Strangly, MSHA has never posted its internal review policy on its website (how’s that for accountability). I got a copy — though only after labor department lawyers cleared it for release — and I’ve posted it here.
This is the part Joe Main was referring to (see page 17):
1262 Review of Draft Report By Other MSHA Offices. After the internal review team has completed its draft of the internal review report, a copy of the draft shall be provided for review by the Assistant Secretary, the Administrator for the program area being reviewed, and the Associate Solicitor for the Division of Mine Safety and Health. The primary purpose of this review is to verify the accuracy of the facts found by the internal review team and to ensure that the report is legally sound. The conclusions and recommendations contained in the draft report are not within the scope of this review. As described in Section 1261(d)(4), this review will also provide the Administrator of the program area being reviewed the opportunity to identify corrective actions already taken which address issues in the report, and to provide this information to the internal review team for ultimate inclusion in the report. The internal review team leader should establish a reasonable deadline for submission of comments on the draft report. Commenting parties are encouraged to include their comments on the draft report itself. The review team should establish a system of internal controls to safeguard the confidentiality of the draft report being circulated.
After the internal review team has received comments on the draft report, the team will evaluate the comments and make any appropriate factual revisions to the report. The internal review team shall provide a copy of the report to the Assistant Secretary for his review and approval. Each of the internal review team members shall sign the final report. The Assistant Secretary shall also sign the report, indicating his approval.
After the report of internal review has been approved by the Assistant Secretary, a copy of the final report shall be transmitted to the Administrator for the program area reviewed. The Administrator shall provide the Assistant Secretary with a written summary of the actions to be taken to correct any deficiencies identified in the internal review report. This written summary will be included in the final report as an appendix. The Assistant Secretary will then direct that the report be printed for public release.
This certainly raises some interesting questions. But there’s an easy way for Joe Main and Kevin Stricklin and even Labor Secretary Hilda Solis to remove any and all doubt about what changes have been made to the internal review report over the last few months. They could simply go ahead and immediately release the version that was actually written by and provided to them by the internal review team — along with any documents which indicate the sorts of changes they’ve asked be made to the report … if the Obama administration won’t do this, maybe the Republicans in Congress will make them.