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The need for reform ... again

June 1, 2010

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The worst mining disaster in decades spurs questions of oversight, accountability

By Kyle W. Morrison, associate editor

Even before the dust settled from the worst underground coal mining disaster in 40 years, calls began for reforming the nation’s mine safety laws and their enforcement.

Twenty-nine miners were killed in an April 5 explosion at Upper Big Branch Mine-South. The mine – owned by Massey Energy Co. and operated by Performance Coal Co. – is located near Whitesville, WV, which is less than 150 miles from the site of an explosion four years ago at Sago Mine that prompted the Mine Improvement and New Emergency Response Act.

The Department of Labor and the Mine Safety and Health Administration issued a preliminary report on the Upper Big Branch tragedy to President Barack Obama 10 days after the disaster. Summarizing the facts known at the time it was issued, the report paints a picture of a mine company racking up significant violations, a federal agency that lacks enough legal authority and whose policies accommodate violators, and a review commission body overwhelmed by mine owners’ penalty litigation.

Senate hearing

The report highlights were brought up numerous times during a Senate Health, Education, Labor and Pensions Committee hearing in late April, just three weeks after the catastrophe. During the hearing, senators angrily demanded to know how such a tragedy could occur after only four years since passing legislation meant to curb mine disasters.

MSHA administrator Joseph A. Main placed most of the blame on policies set by the prior administration and an overwhelmed Federal Mine Safety and Health Review Commission, which handles contested citations. FMSHRC has seen its caseload increase considerably since the MINER Act was implemented. Mine operators who receive an order or citation from an inspector must abate the hazard during the appeal process; however, the violation cannot be factored into an employer’s violation history while the appeal is ongoing.

This allows mine operators to avoid being placed on a “pattern of violation” status. POV status allows MSHA to order a withdrawal of miners from any area with “significant and substantial” violations until those violations are corrected. Main and others who testified during the hearing all agreed this policy must be changed. It is very difficult for mines to be placed on POV status, they said – and far too easy to be removed.

Main further attempted to explain how enforcement of the law has been weak due to the review commission’s interpretations of the laws. He said FMSHRC has made decisions over the years that make it difficult for an inspector to cite a significant and substantial violation. “You almost have to have an explosion occur to find a serious violation,” he said.

That did not seem to satisfy the senators, particularly committee chair Tom Harkin (D-IA) and member Johnny Isakson (R-GA), who pointed out MSHA has the power of “injunctive relief” to close a mine when inspectors find an operator exhibiting behavior constituting a continuing hazard to workers. In the history of the MINER Act, the agency has never used that power, said Main, who sidestepped questions as to why that was the case.

“Well, who can answer it?” Harkin demanded. “I can’t speak for past administrations, but I can tell you this – we’re going to use it,” Main responded.

Moving forward

Even though a full report from MSHA into the April 5 blast may not come for several months, officials already have begun steps to improve oversight and mine compliance with current law. On MSHA’s latest regulatory agenda, the agency proposed a standard that would require mines to have a comprehensive health and safety management program, as well as another rule reinstituting pre-shift examinations for violations in certain areas of mines.

In the days after the Upper Big Branch disaster, MSHA revealed that a computer glitch had failed to flag the mine for potential POV status. MSHA officials said the glitch would have had no effect on the April 5 catastrophe – mines notified of potentially being placed on POV status have 90 days to reduce their significant and substantial violations by 30 percent, which occurred at Upper Big Branch. The computer glitch was fixed, and no other mine was affected, MSHA said.

Still, several congressmen called for the Department of Labor Inspector General to look into the glitch and investigate how frequently MSHA uses POV enforcement and whether it is an effective tool to weed out habitual violators. Main himself has called the current POV program “broken.”

After receiving the preliminary report on Upper Big Branch, Obama announced the federal government was taking another look at mines with “troubling” safety records, and those mines would see immediate inspections. Obama also called for a review into how MSHA operates. “We need to take a hard look at our own practices and our own procedures to ensure that we’re pursuing mine safety as relentlessly as we possibly can,” he said.

Few legislators have called for changes in the law, preferring to wait until a full investigation into the explosion is completed. “I’m not sure legislation can wait for that,” Sen. Jay Rockefeller (D-WV) said during the HELP Committee hearing. He called on legislators to make changes where known problems exist, such as closing appeal process loopholes and increasing funding for FMSHRC.

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