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Inspector general blasts lack of MSHA enforcement

Read the report here.

CHARLESTON, W.Va. -- Regulators from both political parties have for more than three decades failed to strongly and properly enforce their legal authority to crack down on coal operators who repeatedly violate health and safety laws, according to a Department of Labor inspector general's report released Wednesday.

The U.S. Mine Safety and Health Administration stalled implementation of its "pattern of violations" authority, taking 13 years from passage of the 1977 mine safety law to finalize regulations to apply that authority, the IG said.

MSHA then undercut its own authority with weak regulations, failed to adequately monitor operators it warned had repeated safety problems, and issued error-prone computer systems to keep track of potential renegade mining operations, IG investigators found.

"MSHA has not successfully exercised its POV authority in 32 years," the IG said in an 84-page report. "Administration of this authority has been hampered by a lack of leadership and priority in the Department across various administrations."

Some mine safety advocates have complained for years that MSHA did not use its pattern of violations authority. Congress gave the agency the power to take stepped up enforcement action -- shutting down parts of troubled mines until operators receive a clean inspection -- after the deaths of 26 workers in a series of explosions in March 1976 at the Scotia Mine in Ovenfork, Ky.

But the issue received new attention this year, after MSHA revealed that a computer glitch might have kept it from attempting tougher enforcement at Massey Energy's Upper Big Branch Mine prior to the April 5 explosion that killed 29 miners.

Legislation to rewrite the pattern of violations law is pending in both the House and Senate. Labor Secretary Hilda Solis and MSHA chief Joe Main have also promised new regulations would be proposed by January.

Earlier this week, MSHA also proposed a new formula for screening mine operators for potential patterns of violation, but said that formula was intended to narrow the scope of mines that might be considered for such stepped up enforcement.

"The inspector general's report confirms that the process to identify and impose sanctions against dangerous operators that repeatedly skirt mine laws is broken," said House Labor Committee Chairman George Miller, D-Calif. "Without meaningful legislative reforms, miners will remain in the crosshairs of reckless mine owners operating outside the margins of safety."

In its report, the IG explained that MSHA did not start to write pattern of violations rules until 1980, four years after Congress created the program. MSHA dropped the rulemaking in 1985.

A rule was not proposed until 1989 and not finalized un1il 1990. The IG said, "POV rulemaking was stalled as stakeholders argued differing views on implementation; MSHA curtailed its own POV authority and rarely tried to use it."

Even once the rules were written, the IG said, MSHA tied its own hands by mandating that they could invoke the pattern of violations authority only after enforcement actions had been finalized -- meaning all potential for appeals had been exhausted -- and mine operators had been sent "warning letters.".

Over the next 17 years, the IG said, use of the pattern of violations authority was "decentralized" among MSHA districts and "lacked a consistent, structured approach."

After a series of disasters in 2006, MSHA in 20007 tried to jump start the POV process, with a new emphasis on the program and a new screening criteria for evaluating which mines should be considered for POV status.

But IG investigators found the new criteria has "proven to be complex and unreliable." MSHA declined to pursue POV status for dozens of problem mines for a variety of reasons, from lack of enforcement resources to recent safety improvements and promises of employee training or operator safety audits.

IG investigators also found that MSHA did not really monitor mine operator corrective action plans that companies submitted to try to avoid being put on POV status.

"Since mine operators receive a benefit from submitting a written corrective action plan (i.e., additional time to address safety and health violations), MSHA Needs to assure that the plan is more than a perfunctory exercise and consider whether these plans should be required," the IG report concluded.

The IG review found no problems with the data MSHA uses to evaluate mine performance for POV purposes, but did find that programming problems led to unreliable results when that data was analyzed.

IG investigators also noted that delays in testing dust samples from underground mines kept MSHA from citing dust-control violations at Upper Big Branch until after the deadly explosion, even though the samples were taken in mid-March.

After the IG raised that issue with MSHA, the agency directed lab personnel to complete testing with 19 days of samples being received.

"Although MSHA took prompt action on the concern we raised, 19 days does not convey an appropriate level of urgency for completing tests related to a mine's compliance with a standard for preventing the propagation of coal dust explosions," the IG report said.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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