The Mine Safety and Health Administration was created almost 35 years ago, after deadly explosions at a Kentucky mine, with a mission to conduct more inspections of the nation’s mines and enforce safety standards more strictly. It was strengthened four years ago, after
The Mine Safety and Health Administration was created almost 35 years ago, after deadly explosions at a Kentucky mine, with a mission to conduct more inspections of the nation’s mines and enforce safety standards more strictly. It was strengthened four years ago, after more disasters.
But it remains fundamentally weak in several areas, and does not always use the powers it has.
The agency can seek to close mines that it deems unsafe and to close repeat offenders, but it rarely does so. The fines it levies are relatively small, and many go uncollected for years. It lacks subpoena power, a basic investigatory tool. Its investigators are not technically law enforcement officers, like those at other agencies, including the Food and Drug Administration and the Environmental Protection Agency.
And its criminal sanctions are weak, the result of compromises over the 1977 Mine Act that created the agency. Falsifying records is a felony, for example, while deliberate violations of safety standards that may lead to deaths are misdemeanors.
After an explosion at the Upper Big Branch mine in Montcoal, W.Va., killed 29 miners last Monday — including four whose bodies were discovered late Friday — in the nation’s worst mining disaster in a quarter century, evidence quickly surfaced that the mine had been cited for hundreds of violations over the last year, including many serious ones.
Federal mining officials said Friday that they believed the mine’s safety record was poor enough to declare that it had a “pattern of violations,” which would have allowed them to step up oversight and to shut the mine down every time a significant violation was found.
But their hands were tied, they said, because Upper Big Branch, like many mines, had contested many of its violations — a tactic that helps mine owners fend off fines and delay added scrutiny.
The total fines the Massey Energy Company, which owns the Upper Big Branch mine, paid for infractions there in the last year, just $168,393 in all, is just the latest example of what former regulators, inspectors and miners say is an agency that lacks muscle — a testament to the industry’s political clout, and the practical limits of enforcement.
Fatalities among miners has steadily dropped over the years. But inspectors, regulators and miners said the deaths at Upper Big Branch showed that enforcement of safety laws remained weak.
“Every place I’ve ever worked, safety has been a distant second to production,” said Billy Brannon, 30, from Harlan, Ky., who has been a miner for nine years. “If you take 30 minutes out of the day doing it right, that takes a lot out of the tonnage of the mine.”
Labor Secretary Hilda L. Solis, who oversees the mine safety agency, said in an interview that she was concerned about weaknesses in its oversight powers.
“We know that there are some areas of the law that probably could be strengthened, and so we’re going to be reviewing those areas — for example, looking at powers to subpoena,” she said. “We don’t have the authority to shut down a mine as easily and as quickly as the public might think, and I think those are the loopholes that we want to close.”
Companies challenge violations
In the Bush administration, a number of officials from the mining industry were appointed to senior positions at the mine safety agency. The agency made a priority of winning voluntary compliance from the industry, which prompted critics to charge that they were not taking enforcement seriously enough.
After a series of deadly fires in 2006, Congress passed a tougher mining law, and the agency stiffened its fines and began using some powers more aggressively. When President Obama took office, he named Joseph A. Main, a former safety official with the United Mine Workers of America, to lead the agency. Last year, mine experts said, there seemed to be greater enforcement and more citations.
But even the new fines remain so low that they are mere rounding errors on the bottom lines of the big energy companies that own mines. And the industry has hobbled enforcement by challenging so many violations.
Since 2005, the number of cases pending appeal before the Federal Mine Safety and Health Review Commission, which reviews challenges, has jumped to 16,000, from 1,500. Federal officials estimated that the backlog of challenged cases was holding up enforcement actions against 48 mines, which employ about 6,000 miners nationwide, including Upper Big Branch.
'Pattern of violations'
An analysis of federal records by The New York Times shows that of the $123.4 million in major fines levied against the industry by the agency since 2005, only 8 percent has been collected — $10.2 million — partly because mine owners began challenging fines more routinely when the agency threatened to step up enforcement of repeat offenders.
Between the industry’s success in challenging enforcement actions, and the mine safety agency’s reluctance to flex all of its powers, problem mines are almost never cited for having “a pattern of violations,” which would allow stricter oversight.
Although the agency has had the power to cite mines for such patterns since 1977, it rarely if ever used it until 2007. Since then, it has warned at least 69 mines that they could be cited for a pattern, but has then allowed almost all to escape the added oversight as long as they reduce — not necessarily eliminate — 