Both majority and minority leadership of the House Subcommittee on Workforce Protections had some good words to say this morning about stepped-up MSHA enforcement and outreach efforts since the Upper Big Branch mine explosion 5 years ago on Apr. 5, 2010.
At the same time, the hearing brought forward a possibility of at least some limited legislative update to existing mine-safety law to hold delinquent mine operators accountable for unpaid fines. A copy of the “Robert C. Byrd Mine Safety Protection Act of 2015″ is here: 2015_Byrd_Bill.
A joint MSHN/NPR investigation released in Oct. 2014, found that delinquent mine operators owe the government $73 million in unpaid fines, and have an accident rate 50% higher than those operators who pay. About 10% of all U.S. mine operators have delinquent penalties.
MSHA chief Joe Main was the sole witness at the generally friendly session before the subcommittee of the House Committee on Education and the Workforce. It was the first such oversight hearing in three years, and the Upper Big Branch Mine disaster was first on the agenda.
“There is no doubt that the families of the 29 who died live each and every day with the painful memory of this tragic event,” said subcommittee chairman Rep. Tim Walberg (R-Mich.) as he opened the hearing. “…Upper Big Branch is a terrible reminder that bad actors will look for ways to cut corners and jeopardize the well-being of their workers, despite a moral and legal obligation…I am pleased that those who had a hand in the Upper Big Branch tragedy are being held responsible. It is taking some time, but justice is being served.”
Ranking subcommittee member Frederica S. Wilson (D-Fla.) said, “to the friends and families of these 29 miners, please note that we continue to remember your loss.”
Yesterday, Wilson announced, she together with Bobby Scott (D-Va., ranking member on the full committee) introduced the latest iteration of a prospective mine safety law named after former Senator Robert C. Byrd (D-W.Va.) to address “weaknesses in the Mine Act” revealed by the Upper Big Branch explosion. In the past Congress, a similar bill failed to achieve passage.
This proposed legislation would give MSHA “the tools it needs to provide greater protection for miners” including subpoena authority, Wilson said, “to compel production of documents and witnesses during an inspection and investigation.” She listed several other agencies to which Congress has granted such power–including the Department of Agriculture under several crop-related laws, including the Pecan Promotion and Research Act.
“I would ask that we join in a bipartisan effort to enact legislation to provide MSHA with…subpoena authority although it’s only a piece of the Byrd bill,” Wilson said.
Main reported that in the wake of new efforts including some “100 reforms” completed on schedule as a result of Upper Big Branch, coal mine fatalities are at the lowest level in history, although a rising death trend in metal and nonmetal mines is “concerning especially after years of historic lows,” Man said.
Among other actions, MSHA has adopted new rules covering coal miners’ dust exposure, pattern of violations, and proximity detectors, Main noted. In addition the agency has undertaken extensive informational outreach, he said. “MSHA’s leadership and I have crisscrossed the country” to interact with stakeholders, Main stated.
The proposed Robert C. Byrd miner Protection Act of 2015 resembles the previous 2013 iteration of the “Byrd bill” except in three particulars: it removes a technical requirement on dust controls, substituting a requirement for a retrospective study; it removes a provision on operators’ provision of medical records related to black lung claims, a provision now included in a separate bill proposal; and it removes a provision that would have exempted surface mines and underground metal and nonmetal mines from certain provisions.
As in the previous 2013 version, the bill would provide several added inspection, investigation and enforcement authorities, including the enhanced subpoena power. It would increase certain penalties, expand the category of felonies under the Mine Act, and step up whistleblower protections. It would allow MSHA to close down a mine that doesn’t pay penalties within 180 days of becoming a final order.
The bill also would require updates to certain health and safety standards.
Among miscellaneous provisions, the bill would expand the definition of “mine operator” to include those with authority to make management or operational decisions affecting miner health and safety either directly or indirectly. It would double the amount of state-grant money, and allow “early replacement hiring” of MSHA inspectors.
Asked about aspects of legislation, beyond subpoena power, that could help MSHA do a better job, Main referred to mine operators with large arrears in penalties, and said “this has been a discussion for quite sometime… we believe we have one of the better collection rates of any federal agency. We’re collecting about 90% of the penalties that are final orders of the Commission [FMSHRC]. Having said that, there are still mine operators that make decisions to accrue violations that place miners at risk and do not pay their penalties. There is a mining company in Tennessee that used that model … closed the mine and moved on racking up several violations and didn’t pay a dime in penalties. … We refer to those as ‘scofflaws.’ So if you look at someone who may get speeding tickets and throw them in the back seat and decide to move out of the state on any given day and leave the tickets… there is mine operators that unfortunately do that.”
When questioned again on the most helpful provisions needed, Main said that there are a number of things that could be done to provide MSHA with greater tools, and the “scofflaw issue has been discussed publicly, and it’s an issue that if we had better tools to deal with [delinquent fines] it would help us rein in mines that decided they do not want to pay their penalties. ”
Main also mentioned the weakness in the Mine Act’s criminal penalty provisions, as evident frustration of U.S. District Court Judge David Sam during the sentencing of Genwal Resources over the Crandall Canyon mine disaster.
It was only four days after the charges were brought in the Crandall Canyon case, and the company agreed to a settlement. It was during the settlement approval that U.S. District Judge David Sam said he was surprised to learn federal law didn’t provide stiffer penalties.
“My initial take on this is outrage at the miniscule amount of penalty,” said Sam, addressing family members of the dead miners in court on March 13, 2012. “I want them to know I have wavered on whether to accept or reject this plea deal.” After some hesitation, Sam accepted guilty pleas by lawyers for Genwal for the two misdemeanors and ordered the company to pay a $500,000 fine “immediately” (19 MSHN 172).
Main stressed that there were a “lack of tools in the judge’s particular tool bag to deal with issues that [were] of a criminal nature that [were] brought before him. That is something that strikes a need.”
Main also raised a concern that there are some reporting issues, and in particular, MSHA is not getting enough accurate information about worktime and injuries from independent contractors, whose workers have accounted for a significant proportion of recent mine deaths.
“It would be helpful to have more valid information on contractor manhours and injuries at a work site. … If you look at the fatalities over the last 18 months, a large number of those were contractors.” A quick calculation based on Main’s testimony shows that 28% of the mining fatalities are contractor deaths.
In addition Main mentioned past difficulties that arose from the 18- to 24-month period it takes to train new inspectors when a large number are new hires. The agency is “in much better shape today,” he said, and was concerning about “not getting there again.”
Other issues addressed in the hearing included MSHA’s decision not to include its “pattern of violations” formula in the final rule (now the subject of two lawsuits); the current decline in coal mining activity; research on refuge chambers; implementation status of the coal mine respirable-dust rule; prospects for a new silica standard and how that might implement small mines; enforcement consistency; injury-illness rates of MSHA inspectors; training outreach to small mines; and the reason for not instituting mandatory miner health surveillance.
Concerning the current downtrend in coal mining, MSHA’s metal and nonmetal department is getting help from the coal department to address fatalities, Main said, while MSHA is looking at changing its training models “to be a more versatile agency” in the future.
Walberg called Main’s efforts in meeting with stakeholders “impressive.” He had especial praise for the agency’s efforts cooperative efforts with industry in getting proximity detectors adopted. Main told the subcommittee that MSHA looks to move forward with requiring proximity detectors on other underground mining equipment in addition to continuous miners.
Walberg said that he had “heard support from the industry” on proximity detectors and recalled his own visit to an underground coal mine during which he himself stood between a continuous mining machine and the mine rib. “I can see that there’s a need there,” Walberg said, emphasizing that MSHA’s strategy “needs to continue being a teamwork approach.”
In closing, Wilson said she hoped that she and Walberg would be able to discuss the proposal to expand MSHA’s subpoena power. Walberg, in a brief moment after the hearing, was noncommittal on the prospects for legislation but indicated that assessing this prospect was part of the purpose for the hearing.