In the wake of the latest coal mining disaster that killed 29 miners at the Upper Big Branch Mine in West Virginia, calls for safety reforms and enhanced regulatory powers echo once again. While mine safety has improved since the recent high death toll of 2006, it remains to be seen if this incident will result in significant changes or if deaths and injuries will continue to be perceived as a cost of doing business.
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On April 5, an explosion at the mine killed 25 miners and filled the mine with toxic gases that prevented rescue teams from searching for four miners not immediately accounted for. In the days that followed, as the toxic gases were ventilated and rescue efforts resumed, evidence indicated that all 29 miners feared caught in the explosion at the Upper Big Branch mine had died. Two other miners were hospitalized as a result of the blast. It was the worst mine disaster since 1984.
Recent mine disasters have resulted in calls for new safety rules and enhanced powers for the Mine Safety and Health Administration (MSHA), the office within the Department of Labor responsible for regulating mine safety. MSHA has seen budget and staffing cuts over its lifetime and struggles to fulfill its mission as a result.
In 2006, 47 coal miners died in mining incidents. Congress passed the Mine Improvement and New Emergency Response Act (MINER Act) to respond to some of the immediate issues raised by the Sago, Aracoma Alma, and Darby mine disasters, for example. Many health and safety provisions discussed after those accidents were not included in the MINER Act. In 2008, Congress tried to pass additional legislation to provide improvements to safeguard miners’ health and safety. The legislation passed the House but died in the Senate.
In 2007, a mine collapse at the Crandall Canyon coal mine in Utah, which trapped six coal miners and led to the deaths of three rescue workers, again called into question MSHA’s ability and willingness to regulate mines and the questionable practices of mine owners. The Upper Big Branch explosion raises many of these same issues about safe mining practices and MSHA’s effectiveness.
Although the investigation into the causes of the explosion at the Upper Big Branch mine is just getting started, Labor Secretary Hilda Solis and MSHA’s two top officials, Joseph Main and Ken Stricklin, briefed President Obama April 15 on the disaster. In the briefing, the officials laid out the pattern of violations at the mine, owned by Massey Energy Company, including above-average numbers of violations and the failure to address significant violations. "Massey mines have been placed onto potential pattern of violation status, the first step in the pattern of violation process, 13 times," according to the briefing.
The pattern of violation program identifies the worst mining companies and invokes enhanced MSHA enforcement efforts. Companies can escape this status, however, by contesting citations to the independent Federal Mine Safety and Health Review Commission (FMSHRC), which has a backlog of approximately 16,000 cases. The briefing noted, "In short, this was a mine with a significant history of safety issues, a mine operated by a company with a history of violations, and a mine and company that MSHA was watching closely."
According to an April 10 Washington Post article, Massey challenged 34 percent of its citations in 2009, more than any other coal company. Filing challenges has been a normal business practice in recent years because the backlog at FMSHRC means companies will not pay fines for contested citations, or MSHA will choose to settle the proposed penalties.
The presidential briefing further explained gaps in MSHA’s regulatory authority and proposed reforms that could enhance the agency’s ability to deal with chronic violators and protect miners who disclose unsafe working conditions.
In a strongly worded statement after the briefing, Obama said the tragedy was a failure "first and foremost of management, but also a failure of oversight and a failure of laws so riddled with loopholes that they allow unsafe conditions to continue."
He directed Labor officials to continue the investigation into the disaster at Upper Big Branch, to give extra scrutiny to mines that have "troubling safety records," to work with Congress to improve enforcement and close loopholes in current laws, and to review MSHA’s policies and practices to "ensure that we’re pursuing mine safety as relentlessly as we responsibly can." Obama acknowledged that the industry and regulators know how to prevent these types of explosions, saying, "I refuse to accept any number of miner deaths as simply a cost of doing business."
On April 16, Solis requested an independent analysis of MSHA’s internal review of the disaster by the National Institute for Occupational Safety and Health (NIOSH) and announced that both MSHA’s review and NIOSH’s analysis would be made available to the public. The announcement came on the heels of criticism MSHA received for appointing MSHA personnel to lead the agency’s investigation instead of naming people independent of the agency to study the causes of the explosion. (The state of West Virginia is conducting its own independent evaluation of the disaster.)
On April 19, MSHA announced that it was immediately initiating a quality impact inspections program aimed at coal mine operators who are "frequent violators," according to an e-mail from Mine Safety and Health News editor Ellen Smith. MSHA defines a frequent violator as "an habitual violator of health and safety standards above the national average." A quality impact inspection will include monitoring conveyor belts, methane monitors, and ventilation controls, among other factors related to mine explosions. The inspections will be conducted by several inspectors at once depending on the size of the targeted mine.
Congress is also preparing to deal with mine safety again. On April 14, Rep. George Miller (D-CA), chair of the House Committee on Education and Labor and a vocal supporter of mine safety reform, released a list of the 48 mining companies MSHA targeted in 2009 for the pattern of violations program but which contested numerous violations in order to escape being listed in the program.
Sen. Tom Harkin (D-IA), chair of the Health, Education, Labor and Pensions Committee (HELP), said that the committee would hold a hearing April 27 to assess how to change a system that encourages mining companies to avoid penalties by contesting them. A future hearing will assess whether Labor’s mine safety agencies have sufficient resources to process appeals from operators and will discuss legislation to enhance MSHA’s enforcement capacity that the HELP committee let die in 2008.
That bill, H.R. 2768, the S-MINER Act, called for additional powers for MSHA. President Bush threatened to veto the legislation. The S-MINER bill would have:
- Expanded MSHA’s ability to deal with mine owners and operators who are in violation of federal regulations by allowing penalties to be imposed that could not be reduced by FMSHRC and would hold corporate officers and operators liable
- Allowed the Secretary of Labor to halt production at mines if operators refuse to pay civil penalties
- Provided MSHA with subpoena power
- Required MSHA to take interim steps to improve emergency response technologies while permanent regulations, required by the MINER Act, were being developed
- Required mine operators to use better technology for measuring coal dust exposure and cut in half the federal exposure limit for coal dust
Given the other items on the congressional agenda in an election year, it is unlikely that major mine safety reforms will be passed in 2010. A more likely scenario that could impact attitudes toward miner safety may be unfolding in the courts, where the first wrongful death suit against Massey was filed April 15, according to the Charleston Gazette.
In addition, a Raleigh County, WV, prosecutor said that a state homicide investigation was possible pending the results of the state’s investigation into the causes of the accident. West Virginia has an involuntary manslaughter statute that would allow such a prosecution.
Unfortunately, both of these legal scenarios require miners to die before companies are held accountable.
Read MSHA’s presidential briefing.
Read President Obama’s statement after MSHA’s briefing here.
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