We certainly hear a lot of talk from MSHA chief Joe Main about how his agency is using all of its tools and taking tough enforcement actions against the nation’s coal operators … and we hear that MSHA is in desperate need of more authority to crack down on renegade mining companies.
Only Friday, Assistant Secretary Main was touting his agency’s efforts — and promoting passage of new mine safety legislation — on the White House blog:
In mining, companies have taken advantage of loopholes in the current “Pattern of Violations” program and treated citations as a cost of doing business that can be delayed for years with legal challenges while miners are exposed to risk.
Under the proposed changes, MSHA would look at current mine conditions to identify patterns of recurring accidents, injuries, illnesses or citations, or orders for safety or health violations – and act accordingly. MSHA would also have new remedial tools it can employ to improve safety and health at those mines. The same data and criteria that MSHA uses would also be available for the public to review, enabling mine operators to monitor their own performance and change their ways before they put their miners into danger.
But we haven’t heard so much from MSHA or Joe Main about several ongoing cases in which the agency is trying very hard to protect what it says is its right to slash mine safety fines for whatever reason it likes … thanks for the Mine Safety and Health News for bringing these cases to our attention.
What am I talking about?
Well, take a look at this ruling from last December by Margaret Miller, an administrative law judge with the Federal Mine Safety and Health Review Commission.
It seems that Joe Main wanted to cut the safety fines for Peabody Energy’s Black Beauty Mine in Gibson County, Indiana, by 80 percent — from $104,000 to $20,000. MSHA proposed to settle a case with Peabody by dropping two citations, modifying the gravity of several citations and modify six of 12 citations to non-significant and substantial.
Judge Miller turned Main’s request down, writing:
In denying the Secretary’s request to settle this matter, I take into consideration the enormous volume of cases pending and the pressure on the CLR’s to settle cases and move them along. However, I have signed off on a number of settlements with this particular mine operator in the past few weeks and did so reluctantly on many of them for that reason. The settlements have given more than generous reductions in penalties and modifications of citations with little explanation.
Miller added:
The fact that a mine operator can obtain such a drastic reduction does not encourage the mine to comply with the requirements of the Act.
Judge Miller didn’t stop there … she has issued orders denying MSHA’s request to settle several other Peabody cases, ruling that there was a “lack of adequate information necessary” to do so and “because the drastically reduce penalties proposed by [MSHA] would not adequately effectuate the deterrent purpose underlying the Act.”
Now what does MSHA do? According to the most recent ruling from Judge Miller, the agency has asked to consolidate some of these cases and appeal Judge Miller’s refusal to approve the settlements to the full Review Commission. As outlined in Miller’s ruling to allow that appeal:
The Secretary, with little elaboration, alleges that the denial of the settlement motions involves a controlling question of law and immediate review will materially advance the final disposition of the proceeding. I agree that there is little, if any, legal authority regarding the denial of a settlement agreement, and particularly authority that relates to the requirements an administrative law judge may impose on parties in reviewing a proposed settlement, and therefore a controlling question of law is raised.
MSHA’s lawyers argue that the agency has “unreviewable prosecutorial discretion” to modify citations and allege that the Review Commission has very limited authority to second-guess MSHA decisions to settle cases and reduce fines.
As I read this stuff, I couldn’t help but think about the Gazette’s “Beyond Sago” series, in which we found in one story that for every miner killed on the job, mining companies paid an average of just $4,000 in penalties to MSHA — in large part because of settlements like these. It’s also worth noting that some of Peabody’s operations have had significant problems, including one where a miner was killed two weeks ago.
And I remembered what Joe Main told Congress not so long ago:
MSHA can hold operators who engage in actions that could significantly and substantially contribute to a hazard that they knew or should have known violated safety and health rules to a more rigorous enforcement regime.
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This ALJ’s decision is definitely worth a read. Being able to do so is an example of why this blog can be so useful and informative to readers — far beyond ordinary journalism, where you have to rely on the journalist’s summaries and selections to try to understand just what happened.
Each of the MSHA citations at issue was for something that an inspector found. What seems to be most notable is that the company could have just as easily found these problems on its own and corrected them — but did not.
Why not? There’s only one possible answer — the incentive to do so was nonexistent to tiny, thanks in part to the fine reduction system that Mr. Main is defending.
The whole idea of big fines is to motivate companies to detect and fix these problems themselves — not to rely on inspectors, who for one thing are not on the job site all the time. (I have suggested that maybe this would be a good idea; it’s done on big highway jobs, I know.)
This drip, drip of negative news about MSHA over the last year or so is painting a sad picture.
Most coal companies of Peabody’s size have safety departments. These personnel are primarily engaged to deal with ongoing federal and state safety inspections. Their primary purpose is to be witness to the inspection process and gather defensive evidence on each violation found by the inspector. Recently, many former mine inspectors are being hired by coal companies to fill these jobs. It’s rare for any of these personnel to enter the mine on a regular basis to perform safety inspections of the mine. Any individuals who do make such inspections are almost invariably under direct order from management that is above the minesite management level.
Thanks for the information, Ernie. It seems to confirm my suggestion that proactive, nit-picking safety inspections by companies don’t occur as often as they should occur. And it makes sense that not reducing fines provides a stronger incentive for such company inspections to occur.
We all understand these kind of incentives. I carefully look at the street sign in front of my apartment when I park there, to see if it’s a street-washing day. One $25.00 ticket, years ago, was enough to burn that lesson in my brain!