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MSHA behind on Southern West Virginia mine inspections

Federal regulators are behind schedule this year to complete required quarterly inspections at more than 60 percent of Southern West Virginia's underground coal mines, government records show.

U.S. Mine Safety and Health Administration managers deliberately stopped some of the required inspections in the face of budget and staffing shortages, MSHA officials revealed this week.

MSHA replaced the complete mine reviews with "enhanced spot inspections" that did not cover entire operations, as required by law.

Last week, Richard Stickler, assistant labor secretary for MSHA, halted the program.

"While this practice may have been well-intentioned, it is unacceptable," Stickler said in an internal memo.

"Spot inspections will continue to serve an important role in MSHA's enforcement efforts," Stickler wrote in the Sept. 18 memo. "However, they must be used to supplement, not replace, regular inspections."

Stickler acted after two Gazette reports about MSHA missing required quarterly inspections at mines in Mingo and Logan counties where workers were killed earlier this month. Stickler also stepped in after harsh criticism from Sen. Robert C. Byrd and Rep. Nick J. Rahall, both D-W.Va.

But questions remain about the agency's actions: Who came up with and approved the plan to replace complete mine safety reviews with spot inspections? What kinds of safety problems might the program have led inspectors to miss? And why didn't Labor Secretary Elaine Chao seek more funding and staff to respond to earlier evidence that MSHA's Southern West Virginia district was dangerously understaffed?

"This most recent failure by the Department of Labor is either gross negligence, or a willful disregard for the requirements of the Mine Act," Byrd said last week.

"Either way, it contradicts the Department's repeated assertions that it has requested sufficient funding and personnel to ensure the safety of our nation's coal miners," Byrd said. "I want to know when MSHA learned that these inspections were not occurring, and why it took so long to remedy the problem."

In an e-mail response to questions, MSHA spokesman Matthew Faraci called the inspection switch an "initiative to use enhanced spot inspections in lieu of select regular inspections."

The program was instituted only in the agency's District 4, based in Mount Hope, "to ensure MSHA's presence at every mine, every quarter."

Faraci said MSHA believes it is behind schedule on 30 percent of mandated inspections in District 4, which covers West Virginia's southern coalfields.

But a review of agency data shows the problem is more serious. Inspectors are behind schedule in completing regular quarterly inspections for at least 74 of the district's 122 underground coal mines currently listed as active, MSHA records show.

"That's an amazing number," said Davitt McAteer, who ran MSHA during the Clinton administration. "It is just astounding that they would let this happen."

In written responses, MSHA said the inspection policy was started on Oct. 1, 2006, and approved by Kevin Stricklin, who had just recently taken over as the agency's administrator for coal mine health and safety.

However, MSHA records indicate the switch to spot inspections from regular reviews started at some mines much earlier in 2006.

And Jesse Cole, who was district manager from July 2004 through August 2006, said it was previously common practice to count spot inspections toward regular reviews. "That is nothing new," Cole said.

David Dye, who was acting MSHA chief from November 2004 until Stickler took over in mid-October 2006, said he never approved such a policy.

Ray McKinney, who was MSHA administrator for coal prior to Stricklin, did not return a phone call last week.

Since 1969, federal regulators have been required to inspect all underground mines in their entirety at least four times per year. For years, MSHA has interpreted that to mean complete regular inspections of all underground mines at least once per quarter.

Coal industry officials have long objected to that requirement, and have continued a lobbying effort to get it changed.

President George W. Bush's first MSHA chief, Dave Lauriski, embraced this approach. Lauriski proposed to write a regulation for "focused inspections" at mines with safety lapses. Lauriski hired a consultant, who prepared a report supporting the idea.

MSHA quietly dropped the rulemaking proposal in December 2003. The agency said it planned to "address this issue through nonregulatory means."

In recent years, MSHA officials have frequently touted their success rate - generally in the high 90-percent range - in completing required quarterly inspections. But last year, the agency fell further behind. Required inspections not completed on time increased from 43 during the 2005 federal budget year to 245 in 2006, MSHA data show. The overall completion rate was 95 percent, down from 99 percent in 2005.

In Southern West Virginia, the issue is not a new one.

Twenty-five years ago, a General Accounting Office report sought by Rahall found that required inspections in Southern West Virginia were not being performed because of "an inadequate number of mine inspectors."

That June 1982 GAO report blamed the problem on a federal hiring freeze put in place under the Carter administration in 1978.

MSHA's Southern West Virginia district ranks second among MSHA offices in coal production, behind only District 9, which covers most states west of the Mississippi.

Between 1996 and 2006, the Southern West Virginia district led the nation in coal-mining deaths, with 76. The next highest was District 6 in Eastern Kentucky, with 48 deaths, MSHA records show.

Since the Bush administration took office, MSHA's staffing cuts have hit Southern West Virginia harder than any other agency office.

Total district staffing dropped by 13 percent between 2002 and 2006, twice the level of the agency-wide staffing reduction, MSHA data show.

From the early days of the Bush administration, Chao strongly supported the MSHA staffing cuts.

In a March 2001 Senate hearing, Chao testified that MSHA's coal program could absorb the cuts of 47 positions "without compromising worker safety."

Then, in April 2003, Chao told a Senate panel that budget and staffing issues played no role in MSHA's failure to properly inspect a mine ventilation shaft construction project near Moundsville where three workers were killed.

In June, an MSHA internal review found "significant deficiencies" in agency inspections at Massey Energy's Aracoma Alma No. 1 Mine, where two workers died in a January 2006 fire.

Investigators found District 4 had permanently reassigned technical specialists to assist in trying to complete required regular inspections. And in September 2005, District 4 managers had met with MSHA national staff "informing them of a need for additional inspection resources," the internal review stated.

"It is apparent to the review team that over a period of time, and under pressure to complete mandated inspections, enforcement personnel deviated from established procedures, and management failed to take action to correct the identifiable breaches of inspection procedures," the report found. "Eventually, some inspectors, supervisors and managers may have acted on the assumption that the procedures no longer applied in practice, but were merely goals they did not believe they could achieve."

Today, there are 83 inspectors and specialists working in the enforcement division at MSHA's District 4 office. That's two fewer than were listed at the office in 2006.

The office also has 44 trainees - who cannot yet complete inspections or write citations on their own - hired to replace inspection spots eliminated previously during the Bush administration.

"The challenge that MSHA has faced is that we have a significant number of inspectors who are still trainees in the district, and that has made it challenging to conduct regular, quarterly inspections," MSHA's Faraci said in a prepared statement. "While we expect trainees nationwide to start graduating ... as early as the end of this month, you can see the challenges we have faced.

"It takes 16 to 18 months to train someone fully and completely," Faraci said. "Additionally, we saw 16 retirements and 20 losses to attrition last year statewide, so MSHA is always working to remain fully staffed."

MSHA critics are not buying those answers.

"MSHA cannot write off its euphemistically termed 'initiative' to allow spot inspections in lieu of full inspections as an optionless solution to a problem beyond its control," Rahall said Friday.

"The agency did not merely wake up one day and slap its head, dumbfounded that it lacked enough staff," he said. "This whole scenario resulted from years of intentional downsizing and calculated politicization in the agency's leadership.

"How it fixes this astonishingly stupid inspection policy in Southern West Virginia will be a supreme test of whether the agency is really correcting course or just floundering."


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