MSHA's Band-Aid Approach Turns Deadly

Cross-posted from The Pump Handle.

Last month, the US Dept of Labor (DOL) and MSHA were celebrating the 40th anniversary of the Coal Mine Health and Safety Act.  Their proclamations said:

“…this law represents a watershed moment in the improvement of occupational health and safety in the United States. It was the precursor to the Mine Safety and Health Act of 1977, which created MSHA, and it was the basis of the Occupational Safety and Health Act (OSH Act) of 1970.  The Coal Act forever transformed occupational safety and health in the United States.”

Now, I’m reading news story after news story with these same officials asserting the Mine Act is weak and doesn’t provide MSHA the tools it needs to shut down dangerous workplaces.  The spin machine is kicking into high gear. 

The Charleston Gazette’s Ken Ward Jr. reports that federal inspectors issued closure orders at Massey Energy’s Upper Big Branch Mine more than 60 times in 2009 and 2010.  The mine was repeatedly cited for allowing potentially explosive coal dust to accumulate and for flagrant violations of its very own ventilation plan. (When a mine operator deviates even slightly from its approved plan for ensuring proper airflow in an underground mine, the consequences can be devastating.   Sadly, very sadly, that’s likely a contributing factor in Monday’s explosion that killed 25 coal miners and possibly the four workers who have not yet been found.)  Ward also reports on “talking points” developed by senior DOL officials to help them answer the growing list of questions about its agencies’ enforcement activities at the Massey Upper Big Branch mine (UBB) in the months and days before the catastrophe.  One talking point says:

“MSHA used every available tool to address the safety issues at the UBB…  MSHA’s tool box is, however, limited to issuing citations, levying fines, and temporarily withdrawing miners and/or equipment from specified areas of the mine, in limited circumstances.  I know some OSHA inspectors and field staff who covet such authority.  MSHA does not have the authority to permanently close or shut down a mine based upon a set number of violations, or any other criteria.”

I disagree in several regards.

First, did MSHA really use every available tool?  I think not.  As WVU law professor Pat McGinley notes in Ward’s story:

“We are not talking about parking tickets here.  When a mine’s ventilation system isn’t working properly or there is an unacceptable accumulation of coal dust even for an hour, miners lives are put at risk.”

This is exactly the type of situation that the drafters of the Mine Act sought to avert when they gave the Secretary of Labor authority to withdraw miners from the workplace until the problem is corrected.

Second, as worker safety advocate Tony Oppegard stated in Ken Ward’s piece, the Solicitor of Labor (SOL) is incorrectly interpreting Section 104(e) of the Mine Act:

“…Oppegard said that MSHA wrote rules for the pattern of violations process that wrongly allow for the issuing of those warning letters — instead of simply citing companies when they meet the criteria and immediately stepping up enforcement to protection miners.  ‘They are not only adding this step, they are, I think, violating the statute. ’It eviscerates the statute.’”

I guarantee that MSHA chief Joe Main has heard Tony Oppegard’s criticism of SOL’s interpretation of the pattern of violation provision.  Oppegard said it loud and clear in 2007 when former MSHA chief Richard Stickler resurrected the “pattern of violation” provision.  Oppegard also gave me a tutorial on the potential power of the Act’s 104(e) “pattern of violation” provision when we worked together at MSHA in 1999.    Oppegard taught me to READ the Mine Act.  The “pattern of violation” provision plainly says:

“If an operator has a pattern of violations of mandatory health or safety standards…which are of such a nature as could have significantly and substantially (S&S) contributed to the cause of effect…of health or safety hazards, he shall be given written notice that such pattern exists. 

“If, upon any inspection within 90 days after the issuance of such notice, a mine inspector…finds any violation of a mandatory health or safety standard which could S&S contributed to the cause and effect…of a safety or health hazard, the mine inspector…SHALL issue and order requiring the operator to cause all persons in the area affected by such violation…to be WITHDRAWN from, and prohibited from entering, such area until a mine inspector…determines that such violation has been abated.”

That’s pretty plain to me: a mine operator who repeated and flagrantly violates H&S laws must cease running coal until the problem is corrected.   What the public is learning now is the flawed manner in which MSHA has operationalized that provision, and frankly other provisions in the Act that address correction of hazards.   I came face-to-face with this issue when I worked at the agency and it obviously is a problem that persists today.  Here’s an example of what I witnessed (and it was an issue that the late Harry Tuggle of the Steelworkers brought to my attention):

Miners working in the taconite region of Michigan and Minnesota were perpetually overexposed to respirable crystalline silica, an air contaminant that causes the disabling and deadly lung disease silicosis.  Twice a year, in the winter and the summer, an MSHA inspector would conduct the required inspection at the mines, including in the prep plant where the ore was treated and prepared for shipping.  In the winter months, when the windows and doors of the plant were closed, silica dust concentrations in plant spiked and the inspector would issue a citation for violating silica exposure limits, and set a date for correcting the hazard.  During the summer months, an inspector would return to the mine, take air samples in the plant and “abate” the citations because the dust levels were below the exposure limit.  Why were the dust limits lower in the summer? 

Because the doors and windows of the plant were open and the silica dust was diluted by the fresh air flow.  Six months later, during the winter months, the inspector would return, take samples for respirable silica and issue a citation to the operator for silica overexposures.  This back-and-forth between citations and “abated” citations went on for years.  Meanwhile, the workers were (maybe still are) chronically exposed to deadly dust.  Some of those men suffer (or did until they died) from silicosis.  It was obvious that merely opening the doors didn’t truly FIX the problem of inadequate dust controls; regardless, it was the way in which MSHA, SOL and the mining industry had twisted the statute in knots to convince themselves that the “violation had been abated.”    I think the authors of the Mine Act envisioned an enforcemnt system that took care of the hazard at its source, not one fixated on ”abating” citations.  What’s the point of ”abating” a citation if the hazard itself is not corrected once and for all?? 

My frustration with this situation was not resolved by the time I left the agency in Dec 2001.  As I read the appalling history of violations and orders issued to Massey’s UBB mine, I see how failing to correct hazards at the source and once-and-for-all has yet again had deadly consequences.  I cringed when I read in Ken Ward’s story:

“We issued citations for every hazard we identified.  We held the operator accountable for correcting the problems that were cited,” deputy asst. secretary Greg Wagner.

My family in Detroit, who are the first to admit they don’t know anything about coal mining, have asked me this week:

“why are mining companies allowed to rack up hundreds of safety violations and allowed to stay in business?”

I think my family’s question is a puzzle to many other people across our country.  I surely don’t believe that what we’ve learned about the citation history at Massey’s UBB mine is what Senator Harrison Williams (D-NJ), Congressmen Phillip Burton (D-CA), John Saylor (D-PA), Carl Perkins (D-KY) and Ken Hechler (D-WV) and Mr. Ralph Nader had in mind when they wrote the law which granted the agency robust regulatory authority.

The Mine Act is loaded with powerful tools to protect the lives and health of our nation’s mine workers.  Those who suggest that the Mine Act is weak or ties their hands should read the landmark bill and its legislative history.   I know some bright, energetic law students who can use these documents and case law to make strong legal arguments that error on the side of protecting mine workers.  The regulatory burden is ”arbitrary and capricious” for goodness sake.  If the current attorneys in the Dept of Labor can’t use their legal training and experience to fight for workers’ lives and justice, perhaps its time for them to step aside.  

Celeste Monforton, DrPH, MPH is an asst. research professor at the George Washington University School of Public Health.  She worked at the US Dept of Labor at OSHA (1991-1995) and MSHA (1996-2001) and is the first to admit that her perspective on regulatory authority and worker protections has evolved substantially in the nine years since leaving her well-paying, secure federal job.