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MSHA not catching 'scofflaw violators,' report says

Read the report : http://blogs.wvgazette.com/coaltattoo CHARLESTON, W.Va. -- Investigators from the U.S. Department of Labor's Office of Inspector General have found that federal regulators are not identifying "scofflaw violators" who don't pay mine safety and health fines, allowing those mine operators to avoid debt-collection lawsuits or other enforcement actions.

The department's Mine Safety and Health Administration "does not have an accurate view" of the amount of delinquent fines it is owed or when the violations that drew those fines were committed, according to the Inspector General's report.

"We continue to view MSHA's debt delinquency information as unreliable," the IG said in a 34-page report issued Nov. 18.

The report on MSHA fines comes just seven weeks after another IG investigation found that agency officials publicly overstated their rate for completing required inspections of non-coal mines.

And the IG's latest findings show continuing problems with MSHA's enforcement practices, following the agency's admission in 2008 that it allowed the industry to avoid required monetary penalties for 5,000 safety violations dating back more than a decade.

MSHA chief Joe Main complained that the IG report did not provide a balanced portrayal of his agency's efforts regarding civil penalty assessments and collections.

"I note that the findings ... do not identify MSHA noncompliance with federal statutes or requirements," Main said in an Oct. 17 memo. "Rather, the recommendations refer to modifications of, or adherence to, MSHA internal policies and procedures that in some cases exceed federal requirements."

IG investigators examined MSHA's record collecting fines that were finalized in 2009 and 2010, and found that agency officials had collected 85 percent of the $147 million in penalties.

But MSHA did not always apply collected fines to the account of specific mine operators, or to the particular violations that drew the penalties in the first place.

"If payments did not include sufficient information to determine which penalty the payment was for, MSHA delayed payment application until it gathered the needed information," the IG report said. "As a result, violator debt balances were not up to date and MSHA could not be certain of the delinquency status of individual violator debts."

MSHA wanted to avoid starting debt-collection proceedings for mine operators who had actually paid their fines, but for whom the agency was not able to match payments with fines that were due.

So, MSHA officials in February 2008 created an "Exclusion List." Mine operators on it would not face debt-collection or other enforcement actions for unpaid fines  "because of uncertainty caused by unapplied payments."

MSHA officials assured IG investigators that companies on the list were only those that "routinely paid their civil penalties timely."

As of September 2010, MSHA had told IG investigators that the list included penalty cases totaling more than $8 million associated with 133 companies. In all, the "Exclusion List" included 325 mine operators, the IG report said in a footnote.

The exclusion list was created while Richard Stickler was head of MSHA, but Main defended the list in a letter to the Inspector General.

"The Exclusion List has served the purpose of not referring debt to Treasury for which payments have been received, but not yet applied, a significant savings in time and administrative costs for Treasurer, MSHA, and most importantly, the companies that have paid civil penalties that are pending payment application," Main said.

But the IG report said, "MSHA's use of the Exclusion List did nothing to address its problem of not applying payments timely. Instead, it created inconsistent and unfair practices by treating selected violators differently from other violators."

IG investigators warned that MSHA is not catching violators who don't pay their fines, because the agency has never finalized a May 2009 proposal on how to do so.

Using MSHA's proposed policy, IG investigators were able to identify three "scofflaw violators" that MSHA had not previously identified on its own. As of September 30, 2010, these three violators owed a total of nearly $850,000 in unpaid fines, the IG said.

"Without clearly defined policies and procedures to identify all potential scofflaw violators, violators may continue to operate while ignoring the financial consequences and the deterrent that civil penalties are intended to provide," the IG report said.

IG investigators also found that, in each of the 150 cases they examined, MSHA wrote off fines as un-collectable without first complying with agency rules for making such determinations.

"As a result, MSHA lacked assurance that it wrote off only debt that was truly un-collectable and that appropriate tax liabilities were recorded for forgiven debt," the IG report said.

IG investigators also revisited MSHA's failure to assess required fines for nearly 5,000 violations cited between 1995 and 2006. MSHA officials blamed the problem on poor management oversight, a lack of staff training, and a heavier workload.

The IG found that agency officials were only able to go back and issue fines for 134 of those old violations. Agency officials have been able to collect only $61,000 of the $143,000 in fines issued in those cases.

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


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