The NewStandard ceased publishing on April 27, 2007.

All Talk, No Action on Mine Safety

by Brendan Coyne

Mar. 28, 2006 – Nearly three months after the Sago Mine tragedy, promises to toughen mine-safety enforcement have gained little real-world traction. And with the number of mine workers killed at work this year now just one shy of the total for all of 2005, lawmakers, administration figures and others intimately familiar with the issue are unable to say when, or even if, anything significant will be done.

In the weeks following the January 2 explosion that took the lives of twelve West Virginia miners and severely injured another, the administration called for higher fines and tighter regulatory policing. Congress, too, took up the call, holding hearings on the enforcement of mine-worker protection laws and entertaining proposals to grant the Mine Safety and Health Administration (MSHA) greater power.

By the time the 2006 miner death count hit 24 on February 17, MSHA had already sent Congress language to incorporate into legislation raising maximum fines, and the agency’s acting administrator, David Dye, had announced plans to revamp the 25-year-old penalty-assessment system.

"Mine safety violations put workers at risk," Dye said in a February 16 statement, "so the penalties for those violations need to be serious and straightforward. Updating the penalty structure will advance MSHA’s goal of sending every miner home safely at the end of his or her shift."

But, even with the apparent support of the White House and many in Congress, real policy changes have yet to materialize.

MSHA Mired

Even with the apparent support of the White House and many in Congress, real policy changes have yet to materialize.

Under the current system, penalty amounts are decided using six criteria including the operator’s history of violations, the severity of the violation in question and the effect the fine may have on the company’s "ability to continue in business."

MSHA spokesperson Dirk Fillpot told The NewStandard that the agency cannot predict when it will unveil proposed rules to revamp its penalty system. And with the maximum fine amount capped at $60,000 per violation under federal law, Fillpot said the agency has little recourse until Congress passes a bill raising that ceiling.

Even if the agency were able to issue larger fines, it may opt not to use that power. As TNS reported shortly after the Sago disaster, in 2005 MSHA issued 208 fines at the mine, with most for less than $100. In 2004, just 59 of the 64,635 citations levied at the nation’s mines were for $10,000 or more, what MSHA terms "high-dollar."

Like most government agencies, in order to put any new rules into place, the agency must publish a proposal, take public comments, and then craft the final regulation. The process can take several months or more, Fillpot said, adding: "We’ll have a better handle on how long it will take after the [proposed] rule is published in the Federal Register."

According to former MSHA worker Celeste Monforton, though, procedural barriers are really just a small part of the picture. Monforton, who currently researches environmental and occupational health at George Washington University, told TNS politics and business concerns play a big part in executive rule making, and attempts to change the rules may be more about creating an image rather than acting. Until 2001, Monforton was the special assistant to former MSHA head J. Davitt McAteer.

Even if MSHA reforms the rules, long-time workers’ rights advocate Reverend Jim Lewis predicts large companies are unlikely to change their behavior unless workers force those changes.

"The question comes down to, ‘Does the agency have the political will to do something?’" she said. "Administrative rule-making can take some time depending on the complexity of the rule and how much science is involved and how much opposition there is. But with certain things, like removing MSHA regulations early on in the [Bush] administration, it seems like they went through with lightening speed."

As previously reported by TNS, the Bush administration lessened a number of MSHA regulations within its first year, when David Lauriski headed the agency. Lauriski left the agency in 2003 following a Labor Department Inspector General’s report finding that he and two subordinates had improperly awarded no-bid contracts to companies he maintained ties with.

That same year, the Government Accountability Office – Congress’s research arm – had criticized MSHA for "providing lax oversight of the industry" and recommended several changes in enforcement and monitoring, which Lauriski rejected.

The politics surrounding Lauriski’s departure cast an early pall on the agency, one that hasn’t really lifted, according to one current MSHA worker who requested anonymity in order to talk freely with TNS about the agency’s failure to act on mine safety issues in recent years. The source, whose position and identity TNS has confirmed, said there appears to be little more than reshuffling going inside the agency.

"I’m working on the committee [working up new penalty rules] and it’s been stalled," the source said, adding: "We didn’t really have a real goal from the start. It was a situation where we were told, ‘Quick! Do something,’ but never told what that ‘something’ was really supposed to be."

According to the committee member, MSHA would be close to a new rule by now if Dye and other appointees had the will. "We’re not doing anything new," the MSHA worker said. "There’s an existing rule and we’re just tweaking it. It’s not like this should be some big, long process."

Even if MSHA reforms the rules, long-time workers’ rights advocate Reverend Jim Lewis predicts large companies are unlikely to change their behavior unless workers force those changes.

"It’s a good effort," Lewis said, referring to MSHA’s push for higher fines and a new assessment structure, "but, definitely, I don’t think its going to make one bit of difference. Companies factor safety and health fines in as part of the cost of doing business. A huge piece of the puzzle is organizing workers so that they can stand up for themselves."

Lewis, who has been active in organizing workers for decades, formerly served on the board of the pro-labor group Interfaith Worker Justice. Currently, he is working with poultry workers near Charleston, West Virginia, aiding them in organizing and community-outreach efforts.

"It’s unfortunate, but people don’t pay attention to miners or poultry workers or so many others who work dangerous jobs until somebody is killed at work, " Lewis said. "From what we see here [in West Virginia], nothing much has happened. Sago’s back open, workers are back in the tunnels and [International Coal Group] is saying lightning caused the explosion."

Indeed, ICG’s own investigation yielded a preliminary announcement from the company – slammed as premature by labor advocates – that a bolt of lightning was the villain in the Sago tragedy. That claim has not been substantiated by the yet-to-be completed MSHA and West Virginia Office of Miners’ Safety and Health investigations. In fact, ICG itself has not provided any details about how it came to the conclusion.

Lewis said government regulations can only go so far and that the best way to make sure people who work dangerous jobs have the best possible chance of going home every day is to empower workers to organized into unions. A key to aiding those efforts, Lewis said, is making consumers more aware of how products get to them.

"If people knew how many steps it took and how many people – individuals like them – had their hands in bringing power to their houses or food to the store, then you might be able to get somewhere," Lewis said. "Thank God for people who do risky jobs like mining, but the rest of us have to look at it like people are with the troops at war now. If you send someone into battle in a mine, you have to give them the right tools. And that includes the power to fight back against company cost-cutting."

Congress Stalled

With MSHA regulatory changes apparently at a stand-still, congressional attempts to impose new worker protections and more stringent penalties and enforcement are stalled in committee with no hearings scheduled.

Senators of both major parties from several states have stepped forward to sponsor the Federal Mine Safety and Health Act of 2006, a multi-part measure that covers equipment, enforcement and penalties.

Along with Massachusetts Senator Edward Kennedy (D), the entire West Virginia congressional delegation introduced a version of the act on February 1. Senator Arlen Specter (R-Pennsylvania) followed suit two weeks later with a nearly identical bill that the original sponsors signed on to.

The measures carry a slew of specific requirements governing safety regulations, compliance and penalties, including a mandate to increase the maximum single violation penalty to $500,000. By contrast, the MSHA-suggested legislation does not address equipment and safety issues, nor does it propose a specific dollar amount for the cap, according to a copy of the language provided to TNS by Fillpot, the agency spokesperson.

Meanwhile, Dye’s tenure as temporary head of MSHA appears set to continue as opposition to the White House’s nominee, Richard Stickler, a former mine-company official and head of the Pennsylvania Bureau of Deep Mine Safety, grows.

At Senate Health, Education, Labor, and Pensions Committee hearings earlier this year, Stickler said existing MSHA regulations did not need to be updated, though he had previously stated his willingness to increase fine amounts.

Unions disagree. "The nation’s miners cannot tolerate having another mine executive running the agency responsible for protecting their health and safety," UMWA head Cecil Roberts wrote in a letter to President Bush opposing Stickler’s nomination. "For too many years, miners have endured an agency directed by coal mine executives. Too often, these mining executives place a priority on productivity but fail to focus on miners’ health and safety."

Organized labor’s opposition to Stickler’s candidacy seems to have derailed a vote on the nomination. After AFL-CIO President John Sweeney wrote lawmakers to oppose Stickler, Sen. Byrd placed a hold on the nomination, citing concerns about the alleged pro-business bent. Byrd said he would not permit the nomination vote to go forward without first ensuring that Stickler’s primary concern is worker safety. Though Byrd has received substantial campaign funding from industrial unions, the coal mining industry is the senator’s top donor and his record representing West Virginia is replete with pro-industry stances.

"I have yet to meet with Mr. Stickler, and I will continue to hold his nomination until I can meet with him to discuss the urgency of coal-safety improvements: modern communications equipment, better enforcement of the safety laws already on the books, and mandatory minimum fines to encourage compliance with safety practices," Byrd wrote in a statement e-mailed to TNS.

Of course, Rev. Lewis said, whether it’s Stickler or not, it isn’t likely to make much of a difference. "Image is what MSHA and their friends in the mining industry work at. They all tend to be a long way from the communities they serve."

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The NewStandard ceased publishing on April 27, 2007.

This News Article originally appeared in the March 28, 2006 edition of The NewStandard.
Brendan Coyne is a contributing journalist.

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