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entitled 'Mine Safety: Better Oversight and Coordination by MSHA and
Other Federal Agencies Could Improve Safety for Underground Coal
Miners' which was released on May 16, 2007.
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
May 2007:
Mine Safety:
Better Oversight and Coordination by MSHA and Other Federal Agencies
Could Improve Safety for Underground Coal Miners:
GAO-07-622:
GAO Highlights:
Highlights of GAO-07-622, a report to congressional requesters
Why GAO Did This Study:
The Mine Safety and Health Administration (MSHA), the National
Institute for Occupational Safety and Health (NIOSH), the Federal Mine
Safety and Health Review Commission, the Department of Labor’s Office
of the Solicitor, the states, and the mining industry share
responsibility for ensuring mine safety. GAO examined the challenges
underground coal mines face in preparing for emergencies, how well MSHA
oversees mine operators’ training efforts, how well MSHA and NIOSH
coordinate to enhance the development and approval of mine safety
technology, and how civil penalties are assessed. To address these
issues, GAO surveyed a representative sample of active underground coal
mines, analyzed agency data, conducted site visits, and talked with
agency officials and other experts. The survey results are estimated at
the 95 percent confidence level.
What GAO Found:
Underground coal mine operators face significant challenges preparing
for emergencies, including ensuring that miners receive realistic
training and organizing mine rescue teams that satisfy new
requirements. While mine operators recognize the importance of
providing training in an environment that simulates an emergency, many
of them are challenged by having limited access to special training
facilities and meeting the cost of providing such training. MSHA has
materials for providing specific hands-on training for mine
emergencies, but it does not provide all mine operators with
information and tools for training under simulated emergency
conditions. In addition to the challenges of providing miners with
realistic training, mine operators anticipated challenges in
implementing the mine rescue team requirements in recent legislation,
such as meeting the requirement to conduct training annually at each
mine covered by a mine rescue team.
MSHA approves mine operators’ training plans and inspects their
training records, but its oversight of miner training is hampered by
several factors. MSHA has general guidelines for items to be considered
when approving new instructors, but its standards are inconsistent, and
it has no continuing education requirements for instructors. MSHA also
does not have current information on its instructors and does not
ensure that they keep their knowledge and skills up to date. In
addition, MSHA does not adequately monitor instructors or evaluate
training sessions, and does not assess how well miners are learning the
skills being taught.
MSHA and NIOSH have a common mission to improve the safety and health
of coal miners, but do not have a current memorandum of understanding
to guide their coordination efforts or formally involve each other in
strategic planning efforts. As a result, coordination between the two
agencies is largely informal and inconsistent. Most of the coordination
that occurs is initiated by individual staff members or by outside
parties. Such informal coordination may not be sufficient given the
pending retirements of many engineers and scientists and other
challenges that both agencies face.
While most of the penalties proposed by MSHA are paid by mine operators
without opposition, a small percentage of the cases involving more
serious and higher dollar penalties are appealed, and those appealed
are reduced significantly. Between 1996 and 2006, MSHA proposed
assessing mine operators 506,707 penalties for violations of
underground coal mine safety and health standards—at an average penalty
amount of $234 per violation. MSHA uses a standard formula to propose
penalties, but the other entities involved in the appeals process such
as Labor’s Solicitor’s Office use considerable discretion in deciding
on the final penalty amount. Approximately 6 percent (31,589) of the
violations were appealed by mine operators. About half of the penalties
for the appealed violations were reduced by an average of 49 percent,
regardless of the seriousness of the gravity of the violation and the
degree of operator’s negligence.
What GAO Recommends:
GAO is making recommendations to strengthen the efforts of MSHA, Labor,
NIOSH, and the Commission by improving mine operators’ access to tools
to train their workers, strengthening MSHA’s oversight of training,
improving the effectiveness of information sharing between MSHA and
NIOSH, and ensuring that there is transparency in penalty appeal
determinations. Each agency generally agreed with the recommendations
in the report.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-622].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Daniel Bertoni at (202)
512-7215 or bertonid@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Underground Coal Mines Face Challenges in Preparing Mine Workers and
Rescue Teams for Emergencies:
MSHA Reviews Mines' Training Plans and Inspects Training Records but
Does Not Adequately Monitor Instructors or Training:
MSHA and NIOSH Lack a Formal Agreement to Guide Mine Safety
Coordination:
Most Penalties Assessed by MSHA Are Paid without Opposition, but Many
of Those Appealed Are Reduced Substantially:
Conclusions:
Recommendations for Executive Action:
Agency Comments:
Appendix I: Scope and Methodology:
Survey of Underground Coal Mines:
Citation and Penalty Data:
Appendix II: Survey of Underground Coal Mines:
Appendix III: Comments from the Department of Labor:
Appendix IV: Comments from the Department of Health & Human Services:
Appendix V: Comments from the Federal Mine Safety and Health Review
Commission:
Appendix VI: GAO Contact and Acknowledgments:
Tables:
Table 1: MSHA's and NIOSH's Complementary Roles:
Table 2: Key Practices for Effective Coordination:
Table 3: Proportion of MSHA Engineers and Scientists Eligible for
Retirement over the Next 10 Years, as of March 2007:
Table 4: Average Proposed Penalty by Gravity and Negligence Indicators,
1996 to 2006:
Table 5: Example of How a Proposed Penalty Amount Could Be Determined
Based on the Previous and Revised Standard Penalty Formulas:
Table 6: Contested Penalty Reductions by Gravity and Negligence
Indicators, 1996 to 2006:
Table 7: Sample Disposition for Survey of Underground Coal Mines:
Figures:
Figure 1: Penalty Assessment Process for Mine Operators That Are Cited
for Violating Safety and Health Standards:
Figure 2: Estimated Extent of Training Conducted with Breathing Devices
at Mines in 2006:
Figure 3: Mines' Assessment of Challenges in Preparing Workers for Mine
Emergencies:
Figure 4: Mines' Assessment of Rescue Team Challenges in Preparing for
Mine Emergencies:
Abbreviations:
ALJ: administrative law judge:
APA: Administrative Procedures Act:
CLR: conference litigation representative:
ETS: Emergency Temporary Standard:
MINER Act: Mine Improvement and New Emergency Response Act of 2006:
MSHA: Mine Safety and Health Administration:
MSIS: MSHA Standardized Information System:
NIOSH: National Institute for Occupational Safety and Health:
SCSR: self-contained self-rescuer:
United States Government Accountability Office:
Washington, DC 20548:
May 16, 2007:
Congressional Requesters:
In January 2006, the Sago mine accident in West Virginia brought the
nation's attention to the perils workers face in underground coal
mining when 12 men lost their lives after an explosion prompted them to
barricade themselves in the mine to await rescue--an effort that took
close to 2 days to complete. In total, 47 coal miners lost their lives
in 2006, interrupting a 10-year trend of declining fatalities in this
industry. Coal, which is used to produce almost 50 percent of the
nation's electricity, is becoming more and more important to the
nation's energy policy as the demand for electricity increases. Mining
productivity is at an all-time high--averaging more than 6 tons per
coal miner per hour, or more than 48 tons in an 8-hour day. As
production increases, safety and the oversight of mines' working
conditions assume even greater significance than before.
Through the Department of Labor's (Labor) Mine Safety and Health
Administration (MSHA), the federal government enforces the provisions
of the Federal Mine Safety and Health Act of 1977, as amended (Mine
Act) and the recently enacted requirements of the Mine Improvement and
New Emergency Response Act of 2006 (MINER Act). Under these laws, MSHA
is responsible for approving training programs for mine workers;
promulgating regulations regarding training requirements for rescue
teams; approving certain technology devices used underground; and
inspecting underground coal mines at least four times each year, which
can result in citations and penalties for safety and health violations.
The Department of Health and Human Services' National Institute for
Occupational Safety and Health's (NIOSH) Office of Mine Safety and
Health shares some responsibilities for improving mine safety. It
identifies the causes of work-related diseases and injuries;
researches, develops, and tests new technologies and equipment designed
to enhance mine safety and health; and recommends safety and health
standards. In addition, many states maintain mine safety agencies that
conduct inspections and require mines to adhere to state safety and
health laws and regulations. Finally, mine operators maintain
responsibility for implementing safety and health standards to ensure
that their workers are working under safe conditions on a daily basis.
In response to concerns about the safety of underground coal mines,
spawned by the recent increase in fatal mine accidents, you asked us to
review several aspects of mine safety oversight. We examined (1) the
challenges underground coal mines face in preparing for mine
emergencies, (2) how well MSHA oversees mine operators' training
efforts, (3) how well MSHA and NIOSH coordinate their efforts to
enhance the development and approval of mine safety technology, and (4)
how civil penalties are assessed when underground coal mine operators
violate safety and health standards.
To conduct our work, we reviewed relevant laws and regulations that
govern MSHA, the Federal Mine Safety and Health Review Commission, and
NIOSH, as they applied to our research. In addition, we reviewed
relevant decisions issued by the Commission and its administrative law
judges. We consulted with outside experts, including industry
associations, union representatives, mine company officials, academics,
a technology manufacturer, and other stakeholders to obtain their views
on each topic. We also surveyed a sample of active underground coal
mines regarding the current state of mines' operations and the
challenges they face in preparing for and responding to mine
emergencies. We sent questionnaires to a stratified random sample of
342 of the 665 active underground coal mines. Our sample size was
reduced because of mine closures; therefore, survey estimates are
representative of only those mines open for the entire period.
Ultimately, 146 mines completed questionnaires for a response rate of
69 percent. Our confidence in the precision of the results from the
sample is expressed in 95 percent confidence intervals. As a result, we
are 95 percent confident that each of the confidence intervals in this
report will include the true values in the in-scope population. All
percentage estimates for our sample have margins of error--widths of
confidence intervals--of plus or minus 8 percentage points or less, at
the 95 percent confidence level.
In addition, we analyzed quantitative data from MSHA on citations and
penalty amounts for penalties assessed from January 1996 through
October 2006. The data provided by MSHA were assessed and found
sufficiently reliable for our purposes. We also visited three
underground coal mines, spoke with MSHA officials in 6 of its 11 coal
mine districts, and interviewed state mine agency officials in the four
states that contain almost 90 percent of all underground coal mines in
the United States--Kentucky, Pennsylvania, Virginia, and West Virginia.
Finally, we attended a mine rescue competition to observe training
exercises and interview rescue team members, and visited field
locations where MSHA and NIOSH conduct their research and interviewed
the officials responsible for these activities. We completed our work
between June 2006 and March 2007 in accordance with generally accepted
government auditing standards. For an additional discussion of the
scope of our work and the methods used to conduct it, see appendix I.
Results in Brief:
Underground coal mine operators face significant challenges preparing
for emergencies, including ensuring that miners receive realistic
training and organizing mine rescue teams that satisfy new
requirements. Mine operators recognized the importance of providing
emergency training in a simulated environment. However, on the basis of
our survey results, an estimate of 81 percent of mine operators
considered the availability of special training facilities for
providing such training as a challenge, and 70 percent considered the
costs of providing simulated training as a challenge. While MSHA has
some materials for providing hands-on training, such as guides on
practicing donning and transferring emergency breathing devices, it
does not provide all mine operators with information and tools for
training under simulated emergency conditions. Our survey results also
indicate that an estimate of 77 percent of mines conducted evacuation
drills in 2006 in which miners practiced donning breathing devices,
which were part of MSHA's emergency temporary standards implemented in
March 2006. However, an estimate of 44 percent of mines that conducted
these drills did not have their miners practice inserting the device's
mouthpiece. Initially, MSHA permitted miners to simulate this activity.
However, final rules issued in December 2006 require miners to insert
the mouthpiece. In addition to the challenges of providing miners with
realistic training, mine operators reported that they anticipated
challenges in implementing the new mine rescue team requirements of the
MINER Act. For example, depending on how MSHA defines the requirement
for rescue teams to train at least annually at every mine they serve,
some states that currently provide mine rescue services reported that
they may choose to stop providing these services because of resource
constraints. As a result, affected mine operators will then have to
identify and train new rescue teams. To help mines train their workers
under simulated emergency conditions, we recommend that the Secretary
of Labor direct MSHA to publicize information and available tools for
training mine workers under such conditions. In addition, MSHA should
periodically review and update this information, as appropriate.
MSHA approves mine operators' training plans and inspects their
training records, but its oversight of miner training is hampered by
several factors, including (1) inconsistent instructor approval
standards, (2) inaccuracies in its database that maintains information
on all instructors, (3) the lack of continuing education requirements
for instructors once they are approved, and (4) limited agency
monitoring of training sessions. MSHA has general guidelines for items
to be considered when approving new instructors, but allows districts
to determine an instructor's qualifications in different ways. For
example, MSHA requires that applicants prove their experience in one of
three ways, and the districts have the discretion to grant provisional
approval until the instructor is designated otherwise, but this
approach is not consistent across districts. MSHA also does not have
continuing education requirements for instructors. In addition, MSHA
does not have current information on its approved instructors and does
not ensure that they keep their knowledge and skills up to date.
Further, MSHA does not adequately monitor instructors or evaluate
training sessions, and does not assess how well miners are learning the
skills being taught. To help ensure that mine workers are adequately
prepared for emergencies, we recommend that the Secretary of Labor
direct MSHA to strengthen its monitoring of training. This monitoring
should include:
* reviewing and standardizing districts' procedures for approving new
instructors;
* establishing continuing education requirements for instructors to
help instructors maintain or improve their knowledge and skills;
* improving the data in its records on approved instructors; and:
* developing a process for monitoring miner training that includes
regularly evaluating training sessions, assessing how well learning
objectives are being met, and providing feedback to instructors.
Coordination between MSHA and NIOSH is primarily informal and
inconsistent, and such coordination may not be sufficient given the
pending retirements and other challenges both agencies face. Despite
their complementary roles, MSHA and NIOSH lack a current memorandum of
understanding or other formal policy to guide their agencywide
coordination efforts. In addition, they do not regularly involve each
other in their strategic planning efforts, including planning for
research. As a result, officials told us that coordination has
primarily been at the initiative of some individuals at both agencies
and, as such, has not always been consistent. MSHA and NIOSH have
worked together on temporary projects, such as developing a new device
to monitor the amount of coal dust and other irritants to which miners
are exposed, but these efforts have been temporary, limited to specific
issues, and not part of either agency's standard operating procedures.
Given the challenges the two agencies face, coordination based on
working relationships developed between individual staff or temporary
projects may not be sufficient. For example, many engineers and
scientists at MSHA and NIOSH will be eligible to retire in the coming
years, and informal coordination efforts may not continue after they
leave. To improve the effectiveness of information sharing between MSHA
and NIOSH, we recommend that the Secretaries of Labor and Health and
Human Services direct their respective agencies to work together to
establish a formal memorandum of understanding to guide their
coordination. In addition, the agencies should periodically review and
update the memorandum, as appropriate.
While most of the penalties proposed by MSHA are paid by mine operators
without opposition, a small percentage of the cases involving more
serious and higher-dollar penalties are appealed, and many of those
appealed are reduced significantly. MSHA proposes penalties using a
standard formula established in its regulations designed to assess
higher penalties for more serious violations. Recently, MSHA finalized
revisions to its standard formula and expects these changes to more
than double the amount of all proposed penalties. Between 1996 and
2006, MSHA proposed assessing mine operators 506,707 penalties for
violations of underground coal mine safety and health standards--at an
average penalty amount of $234 per violation. While mine operators pay
most penalties without opposition they appealed about 6 percent of all
penalties assessed by MSHA. Of those appealed, about half of the
penalties were reduced by an average of 49 percent, regardless of the
gravity of the violation and the degree of the operator's negligence.
The entities involved in the appeals process--the Department of Labor's
Office of the Solicitor (Solicitor's Office), MSHA's conference
litigation representatives (CLR), and administrative law judges (ALJ)
with the independent Federal Mine Safety and Health Review Commission-
-are required by law to apply the six statutory factors specified in
the Mine Act. However, they are not legally obligated to use any
particular method to determine a new penalty amount when they determine
that a reduction from MSHA's proposed penalty is appropriate. As a
result, they have considerable discretion in deciding on the final
penalty amount. The recent penalty increases implemented by MSHA
increase the likelihood that more penalties will be appealed. In order
to ensure that there is transparency in penalty determinations, we
recommend that the Solicitor's Office, MSHA, and the Commission take
steps to ensure that the specific rationale for all final penalty
amounts, including reductions from MSHA's proposed penalties, are
adequately documented.
We obtained comments on a draft of this report from MSHA, Labor's
Office of the Solicitor, NIOSH, and the Commission. Each entity agreed
with the recommendations. MSHA provided additional information about
actions the agency has either begun or plans to take in response to the
recommendations. For example, MSHA stated it will develop a Web page
dedicated to providing information on available training resources and
will issue an information bulletin to mine operators about this Web-
based resource. In addition, the agency provided information on its
plans for improving oversight of miner training, including exploring
the option of establishing continuing education requirements for
approved instructors. However, the agency noted that this requirement
may necessitate a regulatory change before it can be finalized. Both
MSHA and NIOSH supported developing a memorandum of understanding to
better guide their coordination efforts. MSHA, the Office of the
Solicitor, and the Commission agreed with the need for transparency in
the appeals process that includes specifying the rationale for each
penalty reduction.
Background:
Coal mining remains one of the nation's most dangerous professions. The
deadly explosion at the Sago mine in West Virginia brought national
attention to the many hazards facing underground coal miners. In
response, Congress enacted the MINER Act of 2006, which required mine
operators and MSHA to undertake a variety of reforms, including
enhancing mine rescue teams, developing up-to-date accident response
plans, and instituting higher penalties--including a criminal penalty-
-for the most serious violations.[Footnote 1] In March 2006, MSHA also
issued an Emergency Temporary Standard (ETS)[Footnote 2] aimed at
instituting immediate health and safety improvements.[Footnote 3] Among
other requirements, these standards required operators to provide
safety training on the mine's evacuation routes and provide
opportunities to learn how to react in certain kinds of simulated
emergency situations, install lifelines along mine escape routes, and
store supplemental breathing devices underground. The elements of the
ETS became a permanent regulation in December 2006, although the final
regulations do modify and clarify some elements of the ETS.[Footnote 4]
The underground mining industry is highly concentrated in the
Appalachian region, east of the Mississippi River. Approximately 87
percent of all underground coal mines in the United States are located
in Kentucky, Pennsylvania, Virginia, and West Virginia. Eight of MSHA's
11 district offices are located in these states, and MSHA's
headquarters is located in Arlington, Virginia.
MSHA plays a key role in ensuring the education and training of miners,
mine inspectors, and other industry stakeholders. MSHA's Directorate of
Educational Policy and Development provides technical support to mine
operators through its Educational Field Services, which has staff
located in many of MSHA's district offices. The directorate also
operates the National Mine Health and Safety Academy (Mine Academy) in
West Virginia, which primarily serves as the training center for MSHA
mine inspectors but is also available to federal and local government
and industry personnel for training on a variety of mine health and
safety topics. The Mine Academy also provides nearly all of the
classroom training for newly hired MSHA mine inspector trainees and
technical specialists. In addition, MSHA regulations govern the
training and retraining of miners and mine rescue team members. Mine
operators are required to provide at least 40 hours of training to new
underground mine workers and at least 8 hours of annual training to
experienced miners. The training must cover a variety of topics, such
as learning the layout of the mine and proper safety procedures, and
must be conducted by an MSHA-approved instructor. Miners who volunteer
for mine rescue teams are generally required to pass a rigorous
physical examination, complete an initial 20 hours of training on the
breathing apparatus used by the team, and an additional 40 hours of
annual training on issues such as reading mine maps, understanding
ventilation systems, and the use of mine rescue equipment.[Footnote 5]
Both MSHA and NIOSH are responsible for getting new technology into the
mines. MSHA performs this role by certifying certain equipment used in
a mine is safe for underground use. MSHA also provides technical
support to mine inspectors and mine operators in a number of areas,
such as electrical and ventilation systems, roof control, and control
of coal dust. In conducting its health and safety research and
development, NIOSH consults with a number of different entities,
including MSHA and the mining industry. NIOSH is also responsible for
developing or adapting new technologies for use in the mining industry.
Before the passage of the Mine Act in 1977, both mine enforcement and
research were the responsibility of the Bureau of Mines, which was
located in the Department of Interior. After the passage of the act,
MSHA was created when the enforcement function was moved from the
Bureau of Mines to the Department of Labor. In 1997, following the
closure of the Bureau of Mines, mine research was placed under the
auspices of the Department of Health and Human Services' Centers for
Disease Control and Prevention and became a part of NIOSH.
The federal government's enforcement of mine safety and health is
shared by two independent agencies--MSHA and the Commission--in a split-
enforcement model that is relatively uncommon in the federal
government. While MSHA is responsible for inspecting mines for safety
and health violations, the Mine Act grants authority to the Commission
to assess all civil penalties for violations found by MSHA. In
practical terms, MSHA proposes the initial penalty based on the
findings of its inspectors.[Footnote 6] However, these proposals are
subject to review by the Commission, and no proposed penalty that has
been contested by a mine operator can be settled without the approval
of the Commission. The Commission includes five members appointed by
the President and confirmed by the Senate. ALJs assist in carrying out
the responsibilities of the Commission and are authorized by the
Administrative Procedures Act (APA) and the Mine Act to independently
review MSHA's enforcement actions. ALJ decisions are considered final
decisions of the Commission unless it decides to review a case within
40 days of the ALJ decision. If MSHA or the mine operator disagrees
with the Commission decision, either can appeal the case to the
appropriate U.S. Court of Appeals.
In assessing penalties, the Mine Act requires both the Commission and
MSHA to consider six statutory factors:
1. the mine operator's history of previous violations,
2. the appropriateness of the penalty to the size of the mine,
3. whether the mine operator was negligent,
4. the effect on the operator's ability to continue in business,
5. the gravity of the violation, and:
6. the demonstrated good faith of the mine operator charged in quickly
remedying the situation after being notified of a violation.
MSHA's Coal Mine Safety and Health Administration is responsible for
carrying out enforcement activities related to surface and underground
coal mines. As of January 2007, MSHA employed approximately 550
underground coal inspectors in its 11 coal districts. MSHA's principal
enforcement responsibility for underground coal mines is fulfilled by
conducting a minimum of four comprehensive inspections of every
underground coal mine each year.[Footnote 7] When MSHA inspectors
observe violations of federal health and safety standards, they are
required to issue a citation to the coal mine operator.[Footnote 8]
However, even if an operator does not agree with the violation, the
operator must resolve the problems within the time frame set by the
inspector.
Under new MSHA regulations that took effect in April 2007,[Footnote 9]
the amount of a civil penalty that MSHA can assess for violation of an
underground coal mine safety and health standard generally ranges from
$112 to $60,000.[Footnote 10] However, the MINER Act introduced a new
"flagrant violation," which carries a maximum civil penalty of
$220,000.[Footnote 11] The MINER Act also established criminal
penalties for certain willful or knowing violations of the Mine
Act.[Footnote 12]
Once a penalty is proposed, a mine operator can (1) accept the proposed
penalty and pay it or (2) formally contest the penalty before the
Commission (see fig. 1 for a more detailed view of the process).
Figure 1: Penalty Assessment Process for Mine Operators That Are Cited
for Violating Safety and Health Standards:
[See PDF for image]
Source: GAO analysis.
Note: If the citation or order is vacated by the Commission or the
courts, no civil penalty is assessed.
[End of figure]
Underground Coal Mines Face Challenges in Preparing Mine Workers and
Rescue Teams for Emergencies:
Underground coal mine operators face significant challenges preparing
for emergencies, including ensuring that miners receive realistic
training and organizing mine rescue teams that satisfy new
requirements. Limited access to facilities for training miners under
simulated emergency conditions and the cost of such training challenge
many mine operators. While MSHA has some materials for providing hands-
on training, it does not provide all mine operators with information
and tools to assist them in training miners under simulated emergency
conditions. In preparing mine rescue teams to respond to emergencies,
mine operators reported costs and training as key challenges, and
indicated that implementing new requirements in the MINER Act may
exacerbate these challenges.
Emergency Preparedness Training of Miners Is Limited by Few
Opportunities to Train under Simulated Emergency Conditions:
Although new MSHA requirements instruct mine operators to conduct
emergency preparedness training that includes realistic mine emergency
evacuation drills, many mine operators had not implemented these
requirements as of the end of 2006. MSHA's ETS issued in March 2006
required mine operators to provide hands-on training in the complete
donning of the breathing devices miners carry with them into
underground mines in the event that the breathable air becomes
contaminated.[Footnote 13] On the basis of our survey, we estimate that
77 percent of underground coal mines conducted evacuation drills where
most or all of their workers practiced donning a breathing device
during the drill in 2006.[Footnote 14] However, we estimate that out of
those mines, 44 percent did not have their workers practice inserting
the mouthpiece. Although the March ETS permitted miners to simulate the
insertion of the mouthpiece in training exercises, the final rule in
December clarified that actual insertion is required.[Footnote 15] MSHA
requires all miners to practice each step in the process of donning the
device, including opening and activating the device and inserting the
mouthpiece. The purpose of this training is to familiarize miners with
the process of operating a breathing device and the sensations of
breathing through it, such as resistance when breathing and the heat
generated by the unit.[Footnote 16] However, not all mines have trained
miners in all of these steps (see fig. 2).
Figure 2: Estimated Extent of Training Conducted with Breathing Devices
at Mines in 2006:
[See PDF for image]
Source: GAO analysis of survey data.
[End of figure]
Based on our survey, we estimate that of the mines where most or all of
the workers practiced donning a breathing device in 2006, only 36
percent practiced inserting the mouthpiece, a result that could be due
to miners' reluctance to share used mouthpieces. According to mine
safety and training officials, even when the mouthpieces are sterilized
between uses, many miners are reluctant to use them because of the fear
of infection. In addition, the March ETS and the December regulations
require that miners practice switching from one breathing device to
another in the event that they have to use more than one device during
an emergency, but an estimate of 42 percent of all mines did not
conduct such exercises in 2006.
In addition, we estimate that about half of mines had not conducted
drills in environments that simulate actual emergency situations, and
many cited providing such training as one of the greatest challenges
they face in preparing workers for mine emergencies. MSHA's new
training requirements direct mine operators to conduct quarterly mine
emergency evacuation drills; install directional lifelines to help
miners find their way out of a dark mine; and instruct miners in the
procedures for evacuating the mine in emergencies, such as those
involving fires or explosions.[Footnote 17] On the basis of our survey,
almost all mines conducted evacuation drills and installed lifelines in
2006. However, we estimate that half of the mines had not conducted
drills in environments that simulated actual emergency situations.
According to our survey, the greatest challenges in preparing miners
for and responding to mine emergencies related to simulated mine
emergency training. Specifically, the three most commonly reported
challenges were the availability of training centers that can simulate
an emergency situation, the availability of training in a simulated
mine emergency situation, and the cost associated with providing
simulated mine emergency training (see fig. 3).
Figure 3: Mines' Assessment of Challenges in Preparing Workers for Mine
Emergencies:
[See PDF for image]
Source: GAO analysis of survey data.
[End of figure]
Although mine operators recognized the importance of simulated
emergency training, many mines faced challenges conducting such
training due to their limited access to special facilities and the high
cost of such training. We estimate that 81 percent of mines viewed the
availability of training in a simulated mine emergency situation as a
moderate to major challenge. According to mine training officials and
experts, emergency training is best conducted in simulated conditions
that are as close to the actual conditions present during an emergency
as possible because it builds miners' confidence and enables them to
respond appropriately during an actual emergency. The Mine Academy in
Beaver, West Virginia, provides some facilities for training under
simulated emergency conditions, but it is used primarily for mine
rescue training and, according to some mining industry officials, is
often not a viable training option because of its limited capacity and
distance from many mines. In addition, mine operators can use a mobile
training facility developed for various simulated emergency conditions,
but it is not always available, in part because of limitations on
instructors' time.[Footnote 18] The high cost of providing simulated
training is another challenge, particularly for smaller mines. On the
basis of our survey, we estimated that small mines were less likely to
have performed such drills than larger mines.[Footnote 19] In addition,
the cost associated with providing simulated mine emergency training is
more of a challenge for small mines than larger mines. According to our
survey, small mines were more likely than larger mines to consider the
cost of the training to be a major challenge. According to MSHA
officials, small mines are less likely than larger mines to employ a
full-time safety director who can devote time to developing training
under simulated emergency conditions.
Although MSHA has materials that mine operators can use to provide
hands-on training on specific topics, it does not provide all mine
operators with information and tools for training under simulated
emergency conditions. MSHA has a catalog of various training tools,
including classroom exercises, which mine operators can obtain upon
request. For example, to support the March ETS requirements for
training with breathing devices, MSHA distributed a training packet to
all underground coal mines and appropriate state grantees.[Footnote 20]
However, MSHA does not provide all mine operators with examples of how
to provide training in simulated emergency environments such as smoke-
filled mines or information on resources available for providing such
training. Mine operators use a number of techniques to simulate
emergency conditions, but other mine operators may be unaware of them.
One mine operator we interviewed reported using a maze in a garage-
sized tent filled with artificial smoke to allow workers to safely
practice evacuating a smoke-filled mine, and other operators reported
using darkened goggles during evacuation drills to simulate the limited
visibility miners would experience in a smoke-filled mine. While MSHA
has five artificial smoke machines that mine operators may use to help
train their workers in evacuating a smoke-filled environment, many mine
operators may not know about them because MSHA does not list them in
its catalog of training products or communicate their existence to all
mine operators. Based on our survey, we estimate that about half of the
mines received no assistance from MSHA in preparing for a mine
emergency, such as help developing drills in simulated emergency
environments. In addition, several mine operators commented that they
viewed MSHA as enforcing safety regulations rather than serving as a
resource for developing or providing training.
Mine Operators Face Challenges Funding and Training Rescue Teams and
Anticipate Further Challenges Implementing New Requirements:
Mine operators reported costs and training as key challenges in
preparing rescue teams to respond to mine emergencies, and indicated
that implementing new requirements in the MINER Act may exacerbate
these challenges. According to our survey, cost concerns and
opportunities to conduct simulated training with all stakeholders are
the greatest challenges in preparing rescue teams for mine emergencies
(see fig. 4).
Figure 4: Mines' Assessment of Rescue Team Challenges in Preparing for
Mine Emergencies:
[See PDF for image]
Source: GAO analysis of survey data.
[End of figure]
An estimate of 68 percent of mines considered the funding required to
equip mine rescue teams as a moderate to major challenge in their
ability to prepare them for emergencies. For example, mine rescue teams
need special breathing devices, gas detectors, and communication
equipment. According to a 2006 industry study, the cost of equipping a
typical new mine rescue team is over $90,000, which may be expensive
for some mine operators.[Footnote 21] In addition, all equipment must
be maintained to ensure that it is ready to be used, and therefore must
be inspected every 30 days, according to MSHA regulations.
Limited opportunity to conduct training in simulated emergency
environments with each stakeholder who could be involved in an
emergency response effort is a moderate to major challenge for an
estimated two-thirds of mines. When a mine emergency occurs, several
entities take an active role in the decision-making process that
requires quick action and familiarity with the procedures and actions
of the other players. For example, the mine command center set up at
the beginning of the response to a mine emergency includes officials
from the affected mine, a representative of the miners, and MSHA and
state officials who are responsible for overseeing the rescue efforts
and communicating with the rescue team members underground. In 1995, a
panel of mine experts recommended that rescue teams, labor unions,
state agencies, and federal agencies join together to participate in
mine emergency response exercises. However, MSHA officials told us that
while they have developed a process for conducting these exercises, few
are carried out at mines each year.[Footnote 22]
The time required to train and prepare new mine rescue team members was
also cited as a significant challenge by many mines. We estimate that
two-thirds of mines considered the time required to train and prepare
new mine rescue team members a major or moderate challenge in
implementing the requirements of the MINER Act. Under current
regulations, before serving on a mine rescue team, each member must
complete 20 hours of instruction in the use and maintenance of the
types of breathing apparatus and other equipment used by the team. In
addition, mine rescue team members must have at least 40 hours of
refresher training each year, which includes, among other things, all
team members donning breathing devices for at least 2 hours every 2
months and at least one underground training session every 6 months.
Because many mines rely on mine workers to constitute their designated
mine rescue teams and because such training can conflict with
employees' regular work, some mine operators may feel that it lowers
productivity.
In addition to these challenges, mine operators reported that they
anticipated further challenges stemming from new requirements in the
MINER Act. We estimate that half of underground coal mines anticipate
changing the composition of at least one of their designated mine
rescue teams as a result of the MINER Act. Of the provisions related to
mine rescue, the one that mine operators most anticipated necessitating
significant change is the requirement that teams train at least
annually in the mines they are responsible for covering. In part, this
change is attributed to the way mine rescue services are provided to
many mines in several key coal mining states. According to respective
state officials, all mines in Kentucky and many in Virginia and
Pennsylvania rely on the state to provide or arrange for mine rescue
services. In Kentucky, for example, mines receive rescue services from
state teams composed of state mine inspectors whose primary duties are
to inspect coal mines. According to a state official, a Kentucky team
would be required to conduct 120 training exercises annually under the
MINER Act, compared to the 12 exercises it currently conducts.
Depending on the final regulations developed by MSHA to implement the
requirements of the MINER Act, officials in Kentucky said they might
stop offering mine rescue services because of the amount of time that
will be needed to meet the training requirements outlined in the MINER
Act. Similarly, according to state mine safety officials and rescue
teams in Virginia, the state will probably have to stop contracting
with larger mines to provide rescue team services for many small mines
in the state because of the amount of time that teams would be required
to train at each mine. According to state mining officials in
Pennsylvania, smaller mines would be most affected if the state stops
providing rescue teams because, unlike larger mines, they tend not to
have their own mine rescue teams.
Some mine operators have started making changes to their mine rescue
teams based on the MINER Act, while others are taking a cautious
approach, given the costs to train and equip new rescue teams. For
example, one company operating multiple mines reported that it was
creating new backup mine rescue teams that will satisfy the new 1-hour
travel time requirement of the act. In other cases, however, according
to mine and industry officials, mines were waiting to see how MSHA
implements the new mine rescue requirements before changing their team
designations.[Footnote 23] For example, the extent of the required
training at each mine could affect how mine operators designate rescue
teams. According to state mining officials, this requirement might
involve the entire team training underground and activating breathing
devices at each mine or something less resource-intensive, such as
training aboveground at each mine. Some state mining officials and mine
operators told us they feared that mines that create new rescue teams
will staff them with less experienced people who may not be able to
adequately protect miners during an emergency. However, officials with
the United Mine Workers of America, the coal miners' union, told us
that MSHA should move forward in requiring mines to meet the
requirements of the act more quickly, including establishing mine
rescue teams at each mine without waiting for the regulations to be
finalized. They said they believed that the requirements of the act are
clear.
MSHA Reviews Mines' Training Plans and Inspects Training Records but
Does Not Adequately Monitor Instructors or Training:
MSHA has the authority to oversee certain aspects of miner training to
help ensure that miners work safely and are prepared for potential
emergencies, but its oversight of training is hindered by several
factors, including having inconsistent instructor approval standards.
As part of its oversight role, MSHA reviews and approves the training
plans that mine operators are required to prepare and inspects training
records. As part of its stated mission, MSHA's Educational Field
Services office helps develop mine operators' training plans and
evaluates instructors and training programs. Educational Field Services
staff also provide input to district managers who are responsible for
approving new instructors.
MSHA has general guidelines for items to be considered when approving
new instructors, but allows districts to determine an instructor's
qualifications in different ways. To become an approved instructor,
MSHA requires that an applicant prove his or her mining and teaching
experience in one of three ways: by (1) submitting written
qualifications, (2) attending new instructor training, or (3) teaching
a class monitored by MSHA under provisional approval from an MSHA
district manager. MSHA suggests factors that district managers may use
in determining an applicant's skills, but it does not have firm
criteria that new instructors must meet. For example, to assess an
applicant's mining qualifications, the district manager may consider,
among other factors, the applicant's work experience, state
certifications, and completion of MSHA courses. To assess an
applicant's teaching skills, a district manager may consider prior
teaching experiences and evaluations from teaching sessions at MSHA's
instructor training course. In addition, approval procedures are not
standardized across MSHA's 11 coal districts, according to MSHA
officials. For example, some districts grant provisional approval
whereby individuals are allowed to teach specific courses subject to
subsequent approval based on MSHA's monitoring of their teaching
skills. However, according to MSHA officials, some of these districts
may not monitor these instructors' teaching skills. In other districts,
provisional authority is only granted to new instructors if they can be
monitored by MSHA staff. According to MSHA officials, staff resources
limit districts' ability to monitor applicants' teaching skills.
Another factor that hampers MSHA's ability to monitor training is the
fact that it does not have current information on all of its
instructors. MSHA maintains a database of approved instructors that
includes contact information for each instructor, the courses they are
approved to teach, and whether they have full or provisional authority
to teach the courses. But according to MSHA officials, the database
contains outdated contact information because some instructors move
without notifying MSHA. Without accurate information on its
instructors, MSHA cannot ensure that instructors receive training
policy updates and cannot determine whether there are enough qualified
instructors to meet mine operators' needs.
In addition, MSHA does not have continuing education requirements for
its instructors. Once instructors are approved, according to an MSHA
official, they are not required to demonstrate that they are staying
current on emerging mining issues. As a result, MSHA cannot ensure that
instructors are keeping their mining knowledge and skills up to date,
including their knowledge of emerging safety and health issues and new
training tools. For example, although MSHA did send its new training
guides on transferring and donning emergency breathing devices to all
underground coal mines, it did not send them to the instructors who
conduct the training.
MSHA also does not adequately monitor instructors or evaluate training
sessions and does not assess whether miners are learning what is being
taught in training sessions. According to MSHA guidance, Educational
Field Services and district inspection staff should monitor as many
training sessions as resources permit. MSHA's guidance includes an
instructor evaluation form and a list of steps that staff should take
in monitoring instructors, but according to MSHA officials, the agency
monitors few miner training sessions relative to the number conducted.
According to mine operators and trainers, MSHA rarely oversees training
and monitors sessions primarily for enforcement purposes rather than in
an attempt to enhance instructors' knowledge and abilities. According
to MSHA officials, instructor evaluations occur on an ad hoc basis by
MSHA inspectors who happen to be present or by Educational Field
Services staff who attend in response to a specific request. In
addition, many of the training sessions occur on the weekends, when
MSHA staff do not work, limiting their ability to monitor training.
MSHA does not collect or analyze training evaluations obtained from
miners to help gauge whether learning objectives are taught
effectively, and an estimate of 80 percent of mines do not elicit
feedback on training sessions from their workers. Because MSHA does not
regularly monitor training and because most mines do not elicit
feedback, MSHA cannot determine how well miners are learning the skills
taught by MSHA-approved trainers and recommend corrective measures as
necessary.
MSHA and NIOSH Lack a Formal Agreement to Guide Mine Safety
Coordination:
MSHA and NIOSH have a common mission to improve the safety and health
of coal miners, but do not have a formal agreement, such as a
memorandum of understanding, to guide agencywide coordination efforts
or formally involve each other in their strategic planning efforts. As
a result, coordination between the two agencies is largely informal and
inconsistent. Most of the coordination that occurs is initiated by
individual staff members or by outside parties, such as labor unions.
Such informal coordination may not be sufficient given the pending
retirements of engineers and scientists and other challenges that both
agencies face.
Despite Complementary Roles, Coordination between MSHA and NIOSH Is
Primarily Staff-Initiated and Inconsistent:
MSHA and NIOSH have complementary roles in improving the safety and
health of coal miners, but coordination between the two agencies is
largely informal and inconsistent due to a lack of a formal agreement
or policies to guide their efforts. MSHA is primarily involved in
setting health and safety standards and enforcing them through mine
inspections that can result in citations and penalties, whereas NIOSH's
mining program is focused on research into the causes of and ways to
prevent the safety and health hazards miners face.[Footnote 24] While
MSHA and NIOSH have different functions, their roles are complementary
in a number of respects. Both are involved in providing training and
technical assistance for mine inspectors and operators. For example,
officials told us that NIOSH researchers help develop training modules
and products on a variety of safety and health topics that MSHA makes
available to mine operators and inspectors through the Mine Academy. In
addition, NIOSH may recommend that MSHA issue new safety and health
standards based on research findings.
Further, MSHA and NIOSH are both responsible for getting new safety
technology into the mines. After determining a need for a new safety
technology, NIOSH either works directly with manufacturers to develop a
new product or to adapt one used in another industry to the mining
environment, or develops a market-ready technology and encourages
manufacturers to produce it on a larger scale. For certain kinds of
mining products, the manufacturer must get MSHA's approval before the
technology can be used in mines. Before approving it, MSHA's technical
experts evaluate and test products to ensure that they will not cause a
fire or explode in an underground coal environment. See table 1 for an
illustration of MSHA's and NIOSH's complementary roles.
Table 1: MSHA's and NIOSH's Complementary Roles:
MSHA's key activities: Inspect mines and investigate mine accidents and
complaints;
NIOSH's key activities: [Empty].
MSHA's key activities: Develop mandatory safety and health standards;
NIOSH's key activities: Enumerate hazards in the workplace.
Identify the causes of work-related diseases and injuries.
Create ways to control hazards.
Recommend occupational safety and health standards.
MSHA's key activities: Assess and collect penalties for violations of
mine safety and health standards;
NIOSH's key activities: [Empty].
MSHA's key activities: Review for approval mine operators' health and
safety training plans;
NIOSH's key activities: [Empty].
MSHA's key activities: Maintain Mine Academy to train MSHA personnel,
including inspectors, and others;
NIOSH's key activities: Train safety and health professionals.
MSHA's key activities: Approve and certify certain products for use in
underground coal mines to ensure they do not cause a fire or explosion;
NIOSH's key activities: Evaluate the hazards of new technologies and
work practices.
Research, develop, and test new technologies and equipment designed to
enhance mine safety and health.
MSHA's key activities: Provide technical assistance to mine operators
to meet the requirements of the Mine Act;
NIOSH's key activities: [Empty].
MSHA's key activities: Cooperate with states in the development of
their mine safety and health programs;
NIOSH's key activities: [Empty].
MSHA's key activities: Make grants to states in which mining takes
place;
NIOSH's key activities: [Empty].
MSHA's key activities: Oversee rescue and recovery operations;
NIOSH's key activities: [Empty].
Source: GAO analysis of agency documents.
[End of table]
Given their roles, MSHA and NIOSH have different perspectives that can
inform each other's work. Through inspections, its role in reviewing
and approving miner training, and the technical assistance it provides
to mine operators, MSHA officials told us the agency has knowledge of
the day-to-day workings of a mine that can help inform NIOSH research.
MSHA officials also told us that NIOSH, under the Centers for Disease
Control and Prevention, has the capacity to conduct longer-term
scientific research and benefits from the perspective of the wider
occupational safety and health community.
However, MSHA and NIOSH do not have a current formal agreement, such as
a memorandum of understanding or other policy, to guide their
coordination efforts, a practice we have identified as effective in
prior work.[Footnote 25] In 1978, NIOSH's predecessor in the Bureau of
Mines and MSHA had a signed memorandum of understanding that specified
how they would coordinate to ensure the full and effective use of the
Bureau of Mines' research capabilities and MSHA's resources and
assistance to ensure that technology resulting from mine safety
research would be used to the fullest extent.[Footnote 26] The
memorandum embodied many of the key practices we have identified in
prior work that can help federal agencies enhance and sustain their
collaborative efforts, such as defining roles and responsibilities and
developing joint strategies. For example, the memorandum stated that
the Bureau of Mines would provide overall coordination for the mine
safety and health research programs, and MSHA would provide advice and
assistance on issues such as health and safety standards and
participate through the life cycle of research projects. In addition,
the two agencies would develop a joint research strategy for short,
intermediate, and long-term objectives, as well as hold regular
meetings between staff designated as coordinators for both agencies.
The agreement was developed following the move of MSHA from the Bureau
of Mines into the Department of Labor. However, the memorandum is no
longer used, and MSHA officials were unaware of a plan to update the
document. (See table 2 for key coordination practices GAO has
identified.)
Table 2: Key Practices for Effective Coordination:
Define and articulate a common federal outcome or purpose they are
seeking to achieve that is consistent with their respective agency
goals and missions. Developing such a common outcome takes place over
time and requires sustained resources and commitment.
Establish mutually reinforcing or joint strategies to achieve the
outcome. Such strategies help align the agencies' activities, core
processes, and resources to accomplish the common outcome.
Identify and address needs by leveraging resources (human, information
technology, physical, and financial resources). Agencies can obtain
additional benefits that would not be available if they were working
separately.
Agree upon agency roles and responsibilities. In doing so, agencies can
clarify who will do what, organize their joint and individual efforts,
and facilitate decision making. Committed leadership from all levels of
the organization is also important.
Establish compatible policies, procedures, and other means to operate
across agency boundaries. Frequent communication is another means to
facilitate working across agency boundaries and prevent
misunderstanding.
Develop mechanisms to monitor, evaluate, and report the results of
collaborative efforts. Doing so can help key decision makers within the
agencies, as well as clients and stakeholders, obtain feedback for
improving both policy and operational effectiveness.
Reinforce agency accountability for collaborative efforts through
agency plans and reports. Federal programs contributing to the same or
similar results should collaborate to ensure that goals expressed in
strategic and annual performance plans are consistent and, as
appropriate, program efforts are mutually reinforcing[A].
Reinforce individual accountability for collaborative efforts through
agency performance management systems. Agencies can do so by, for
example, holding agency senior executives accountable for collaboration
and teamwork across organizational boundaries to help achieve goals.
Source: GAO.
[A] The purpose of the Government Performance and Results Act of 1993
(GPRA) is to establish strategic planning and performance measurements
for federal agencies. Under GPRA, federal agencies are required to
develop strategic plans, set program goals and measure performance
against them, and publicly report on their progress to the President
and Congress (Pub. L. 103-62).
[End of table]
In addition, MSHA and NIOSH do not regularly involve each other in
their strategic planning efforts, including planning for research, as
required by the Government Performance and Results Act.[Footnote 27]
NIOSH uses a comprehensive framework to gain input from more than 500
stakeholders on its research agenda, but MSHA officials contend that
their agency should have a higher priority among NIOSH's stakeholders
for planning its research. While mine safety and enforcement is MSHA's
primary focus, mine research is only one part of NIOSH's much broader
worker safety agenda, which includes preventing and reducing
occupational disease, injury, and death in a number of fields such as
agriculture, health care, emergency response, and mining. An MSHA
headquarters official told us that the agency does not know much about
NIOSH's research outside of the few partnerships in which the two
agencies are engaged. A top NIOSH official told us that the agency
generally does not involve MSHA in planning its research unless doing
so could involve a change in regulations. Officials from both agencies
told us that when both agencies were under the Bureau of Mines, MSHA
had a greater influence on NIOSH's research agenda.
For their part, NIOSH officials expressed a desire for more input into
MSHA's rulemaking process. The head of one of NIOSH's research branches
suggested that MSHA should allow NIOSH and other key stakeholders, such
as the labor unions and the mining industry, to comment on a proposed
rule before it is published for public comment in the Federal
Register.[Footnote 28] He noted that MSHA recently solicited NIOSH's
input on the proposed personal dust monitor regulations. Another
official expressed concern that MSHA sometimes issues new safety and
health regulations or standards without fully considering the research
that should be conducted before implementing them, requiring NIOSH to
dedicate resources to unplanned research. For example, MSHA issued a
stricter regulation for noise levels in the mines to prevent hearing
loss in 1999, causing NIOSH to make changes in its staffing and funding
to make research into technology to control noise and efforts to
educate mine workers a higher priority.
A recent National Academy of Sciences review of NIOSH's hearing loss
research program found that the mechanisms through which NIOSH
anticipates the early research needs of MSHA and other regulatory
partners are not sufficiently consistent and systematic and that there
did not seem to be an effective joint planning process for regulatory
activities. The academy recommended that the program establish regular
means of conferring with its partners to better anticipate their
research needs relevant to regulatory decision making. Anticipating
research needs is particularly important given that MSHA and NIOSH
operate under different time frames.[Footnote 29] MSHA must quickly
respond to safety hazards identified in the mines, whereas NIOSH
typically requires 3 to 5 years to conduct its research, according to
officials from both agencies.[Footnote 30] The 1978 memorandum between
NIOSH's predecessor and MSHA provided for such consultation, requiring
MSHA to advise the Bureau of Mines of its plan for developing and
revising standards in order to allow sufficient opportunity for
technical consultation prior to publishing proposed regulations.
Similarly, the bureau would advise MSHA of research results that could
affect existing or proposed regulations.
As a result of not having a formal agreement or policies to guide their
activities, coordination between MSHA and NIOSH is primarily driven by
informal relationships between staff at both agencies. Officials from
both agencies and labor union representatives told us that coordination
has been primarily at the initiative of individuals at both agencies
and, as such has not always been consistent across the agencies. For
example, some heads of research divisions at MSHA and NIOSH said that
the staff from both agencies will contact each other on an informal
basis if they have a question or need additional information on a
current project. However, other division heads at MSHA reported less
frequent communication and a NIOSH official confirmed that some
divisions work together better than others.
Communication between MSHA and NIOSH has improved in recent years, in
part due to several partnerships, but these efforts are temporary,
limited to specific issues, and not part of either agency's standard
operating procedures. Further, officials acknowledged that most of
these partnerships were initiated by outside parties, such as the
mining industry or the labor unions, rather than by the agencies
themselves. For example, in 1999 an industry group asked NIOSH to work
with MSHA, manufacturers, and a labor union to develop a personal dust
monitor, a device miners can wear to monitor in real time the amount of
coal dust or other irritants that they are being exposed to as they
work. Final testing of the monitors has been completed, but MSHA has
not yet proposed new changes to the rule requiring mines to use them.
In response to the MINER Act, NIOSH and MSHA are involved in another
partnership with states, industry and labor groups, and others to
develop, evaluate, and implement technology to help workers in mines
communicate with personnel on the surface after an accident. The MINER
Act requires mine operators to have two-way emergency communications
systems within 3 years after passage of the act,[Footnote 31] but the
harsh underground mine environment makes it difficult to adapt existing
communications systems for this purpose. In 2006, Congress provided
NIOSH with $10 million in emergency supplemental funds to be used by
the end of fiscal year 2007 to support research to develop mine safety
technology, such as communication devices. The funds, which NIOSH is
awarding competitively, are targeted to communications and other
technologies that could be available for use in mines within 24 to 36
months. These partnerships, while good, have provided only a temporary
and limited avenue for coordination between MSHA and NIOSH.
Informal Coordination May Be Insufficient Given Impending Retirements
and Other Challenges MSHA and NIOSH Face:
NIOSH and MSHA face a potentially large workforce turnover in coming
years, and informal coordination based on working relationships between
staff members may not continue when the individuals leave. Like many
federal agencies, a large proportion of engineers and scientists at
MSHA and NIOSH are eligible to retire within the coming years. MSHA
provided us with data showing that more than 50 percent of its 140
engineers and scientists will be eligible for retirement within the
next 10 years, with 31 percent eligible within 5 years (see table
3).[Footnote 32]
Table 3: Proportion of MSHA Engineers and Scientists Eligible for
Retirement over the Next 10 Years, as of March 2007:
Time of eligibility: Currently eligible;
Number of engineers: 14;
Number of scientists: 5.
Time of eligibility: Eligible in 5 years;
Number of engineers: 18;
Number of scientists: 6.
Time of eligibility: Eligible in 10 years;
Number of engineers: 24;
Number of scientists: 4.
Time of eligibility: Total eligible within 10 years;
Number of engineers: 56;
Number of scientists: 15.
Time of eligibility: Total workforce;
Number of engineers: 114;
Number of scientists: 26.
Time of eligibility: Percentage eligible within 10 years;
Number of engineers: 49%;
Number of scientists: 58%.
Source: MSHA.
[End of table]
Similarly, about half of NIOSH's employees--most of whom are scientists
and engineers--are eligible to retire in the next 5 years. Although
current informal coordination may provide researchers with the
information they want, new staff replacing those who retire may not
continue existing coordination practices without a formal agency policy
guiding them to do so.
In addition, MSHA and NIOSH face other challenges that require them to
work more closely together, particularly in developing and approving
safety technologies. An influx of new and inexperienced miners brought
on by the increased demand for coal and the aging of the workforce,
rising dangers as miners go deeper underground to mine coal, and recent
mine disasters have heightened interest in getting promising new safety
technology into the mines quickly. The MINER Act addresses some of
these issues, and underscores NIOSH's and MSHA's roles in developing
and approving safety technologies. For example, the act requires NIOSH
to establish a permanent Office of Mine Safety and Health in order to
enhance the development of new mine safety technology and speed the use
of such technology in the mines, some of which requires MSHA's
approval. The act also requires NIOSH to study the use of refuge
chambers for miners that are unable to escape a mine during a disaster
and requires MSHA to review the results to determine what actions, such
as making regulatory changes, are appropriate in light of NIOSH's
findings. NIOSH and MSHA are now working together to fulfill their
responsibilities within the time frame required by the act.[Footnote
33] NIOSH also must establish an interagency working group made up of
representatives of other federal agencies selected by NIOSH to share
technology research and developments that could enhance mine safety and
accident response. The group is to recommend technologies for further
development to the Director of NIOSH and issue a report on safety
technologies and equipment that have been studied, tested, and
certified for use in the past year.
Most Penalties Assessed by MSHA Are Paid without Opposition, but Many
of Those Appealed Are Reduced Substantially:
Most of the penalties proposed by MSHA are paid by mine operators
without opposition. However, a small percentage of more serious and
higher-dollar penalties are appealed, and many of those appealed are
reduced substantially. MSHA uses a standard formula to propose
penalties, but the entities involved in the appeals process reported
using more subjective methods to assess penalties. MSHA proposes
penalties using a standard formula established in its regulations
designed to assess higher penalties for more serious violations.
However, the entities involved in the appeals process --Labor's Office
of the Solicitor, MSHA's conference litigation
representatives,[Footnote 34] and the Commission's administrative law
judges--recognize that their methods for determining penalty amounts
are more subjective than MSHA's standard formula. As a result, while
MSHA's standard formula and the proposed penalties it calculates using
the formula are transparent, it is sometimes more difficult to
determine how final penalty amounts were determined through the appeals
process.
MSHA Uses a Standard Formula to Calculate Penalties, and Recent Changes
Are Expected to Increase Them:
Through the regulatory process, MSHA has developed a standard formula
to calculate proposed civil penalties. In order to determine the amount
of a proposed penalty, the agency uses a standard formula that assigns
point values to each of the six broad factors outlined in the Mine
Act.[Footnote 35] Through this formula, two of the six factors--whether
the operator was negligent and the gravity of the violation--carry the
greatest weight in deciding the amount of the proposed penalty. MSHA
inspectors are responsible for identifying the magnitude of these two
elements during their inspections.[Footnote 36] To determine
negligence, the inspector must rate the operator's failure to provide
adequate care to ensure the safety of miners on a scale from "no
negligence" to "reckless disregard." To determine the gravity of the
violation, the inspector must determine (1) the likelihood of harm that
could come to miners, (2) the severity of any possible or actual injury
or illness, and (3) the potential or actual number of miners that could
be affected.
After an inspector issues a citation and makes an initial finding
regarding the levels of gravity and negligence involved in the
violation, MSHA's Office of Assessments determines the magnitude of the
remaining four factors and tallies the points for each of the six
factors to determine the proposed penalty amount. Because MSHA's
standard formula assigns greater points to gravity and negligence than
the other four statutory factors, the application of the formula
generally results in larger penalties being proposed for violations
involving higher levels of gravity and negligence. Between 1996 and
2006, MSHA proposed 506,707 penalties for safety and health violations,
and the average penalty was $234 per violation. Table 4 details the
range of average penalties, by degree of gravity and negligence,
proposed by MSHA from 1996 through 2006.
Table 4: Average Proposed Penalty by Gravity and Negligence Indicators,
1996 to 2006:
Likelihood of accident.
Elements of gravity and negligence: Gravity of violation[A]: Accident
occurred;
Percentage of citations issued: 0.2%;
Average proposed penalty: $12,324.
Elements of gravity and negligence: Gravity of violation[A]: Highly
likely to occur;
Percentage of citations issued: 0.9%;
Average proposed penalty: $2,362.
Elements of gravity and negligence: Gravity of violation[A]: Reasonably
likely to occur;
Percentage of citations issued: 38.6%;
Average proposed penalty: $367.
Elements of gravity and negligence: Gravity of violation[A]: Unlikely
to occur;
Percentage of citations issued: 55.5%;
Average proposed penalty: $74.
Elements of gravity and negligence: Gravity of violation[A]: No
likelihood;
Percentage of citations issued: 2.4%;
Average proposed penalty: $168.
Elements of gravity and negligence: Gravity of violation[A]: Total;
Percentage of citations issued: 97.6%[B];
Average proposed penalty: [Empty].
Potential injury or illness.
Elements of gravity and negligence: Gravity of violation[A]: Fatal;
Percentage of citations issued: 3.5%;
Average proposed penalty: $1,185.
Elements of gravity and negligence: Gravity of violation[A]: Permanent
injury;
Percentage of citations issued: 7.4%;
Average proposed penalty: $569.
Elements of gravity and negligence: Gravity of violation[A]: Lost days;
Percentage of citations issued: 62.4%;
Average proposed penalty: $202.
Elements of gravity and negligence: Gravity of violation[A]: No lost
work days;
Percentage of citations issued: 24.4%;
Average proposed penalty: $77.
Elements of gravity and negligence: Gravity of violation[A]: Total;
Percentage of citations issued: 97.7%[B];
Average proposed penalty: [Empty].
Number of miners affected.
Elements of gravity and negligence: Gravity of violation[A]: 0-1
miners;
Percentage of citations issued: 82%;
Average proposed penalty: [C].
Elements of gravity and negligence: Gravity of violation[A]: 2-5
miners;
Percentage of citations issued: 10.8%;
Average proposed penalty: [C].
Elements of gravity and negligence: Gravity of violation[A]: 6-9
miners;
Percentage of citations issued: 4.5%;
Average proposed penalty: [C].
Elements of gravity and negligence: Gravity of violation[A]: 10 or more
miners;
Percentage of citations issued: 2.7%;
Average proposed penalty: [C].
Elements of gravity and negligence: Gravity of violation[A]: Total;
Percentage of citations issued: 100.0%;
Average proposed penalty: [Empty].
Elements of gravity and negligence: Negligence by mine operator:
Reckless;
Percentage of citations issued: 0.1%;
Average proposed penalty: $8,458.
Elements of gravity and negligence: Negligence by mine operator: High;
Percentage of citations issued: 3.5%;
Average proposed penalty: $1,757.
Elements of gravity and negligence: Negligence by mine operator:
Moderate;
Percentage of citations issued: 84.3%;
Average proposed penalty: $179.
Elements of gravity and negligence: Negligence by mine operator: Low;
Percentage of citations issued: 9.4%;
Average proposed penalty: $91.
Elements of gravity and negligence: Negligence by mine operator: None;
Percentage of citations issued: 0.3%;
Average proposed penalty: $454.
Elements of gravity and negligence: Negligence by mine operator: Total;
Percentage of citations issued: 97.6%[B];
Average proposed penalty: [Empty].
Source: GAO analysis of data MSHA penalty and violation data.
Note: These data represent the points accumulated under the former
assessment process. MSHA expects its new regulations to result in
higher proposed penalty amounts for each of these categories.
[A] Each subelement of gravity is an exclusive category.
[B] Percentage does not add to 100 due to a small amount of missing
data.
[C] We did not calculate the average proposed penalty for the number of
miners, because most (75 percent) of the violations involved only one
miner.
[End of table]
MSHA recently changed its regulations governing civil penalty
assessments to update them and increase proposed penalty amounts, and
to implement the new civil penalty requirement of the MINER Act. The
new regulations increase the points for most of the six statutory
factors, and MSHA officials predicted that the new penalty structure
will increase total penalty assessments by 234 percent. For example,
these changes will increase the maximum points allotted for gravity
from 30 to 88 points. MSHA officials asserted that these changes will
likely lead to greater rates of compliance and subsequently a safer
working environment for the nation's miners. As required by the rule-
making process, MSHA conducted an economic analysis to measure the
costs and benefits of the new regulations. In its analysis, MSHA
estimated that if these changes had been in effect in 2005, the total
violations for all mine types would have declined by 20 percent, from
116,673 to 93,422 violations.[Footnote 37] See table 5 for an example
of how MSHA would determine the penalty for a certain violation based
on the six statutory factors under the previous and new penalty
formulas.
Table 5: Example of How a Proposed Penalty Amount Could Be Determined
Based on the Previous and Revised Standard Penalty Formulas:
Operator's history of previous violations.
Statutory factor: Mine had an average of about one violation per
inspection day;
Points under previous formula: 8;
Points under new formula: 10.
Statutory factor: Mine had 10 repeat violations in prior 15 months and
averaged 0.04 repeat violations per inspection day;
Points under previous formula: [A];
Points under new formula: 5.
Operator's size.
Statutory factor: Mine produced over 2 million tons of coal per year;
Points under previous formula: 10;
Points under new formula: 15.
Statutory factor: Company owning mine produced over 10 million tons of
coal per year;
Points under previous formula: 5;
Points under new formula: 10.
Negligence.
Statutory factor: Moderate;
Points under previous formula: 15;
Points under new formula: 20.
Gravity.
Likelihood of accident.
Statutory factor: Highly likely to occur;
Points under previous formula: 7;
Points under new formula: 40.
Severity of injury or illness.
Statutory factor: Lost work days;
Points under previous formula: 3;
Points under new formula: 5.
Number of miners affected.
Statutory factor: 2 miners;
Points under previous formula: 2;
Points under new formula: 2.
Statutory factor: Total points under previous and new formula;
Points under previous formula: 50;
Points under new formula: 107.
Statutory factor: Total penalty under previous and new formula;
Points under previous formula: $878;
Points under new formula: $4,810.
Source: GAO analysis of MSHA data.
Note: This example assumes that the penalty will not affect the
operator's ability to remain in business, and therefore does not
account for a reduction for this factor. In addition, this example
assumes the mine operator does not get a good faith reduction in the
penalty.
[A] MSHA's new regulations added this as an additional element of the
factor for the operator's history of previous violations.
[End of table]
Many Contested Penalties Are Reduced Substantially Regardless of the
Gravity of the Violation and the Degree of the Operator's Negligence:
Many of the proposed penalties contested by mine operators are reduced
substantially through the appeals process, despite the initially
determined gravity of the violation and the initially determined degree
of the operator's negligence contributing to the violation. Between
1996 and 2006, approximately 6 percent (31,589) of the penalties
proposed by MSHA for violations of underground coal mine safety and
health standards were contested by mine operators. Our analysis of
MSHA's penalty data showed that over the last 10 years, the amounts of
the proposed penalties contested by mine operators were typically much
larger than those not contested and involved more serious health and
safety violations. For example, the average amount of a contested
penalty was $1,107, compared to an average of $176 for a noncontested
penalty, and more than half of all contested penalties were for the
most serious violations.[Footnote 38]
Almost half of all penalties contested by underground coal mine
operators are reduced through the appeals process, even those involving
the highest levels of gravity and negligence. From 1996 to 2006, 47
percent of all contested penalties (14,723 penalties) were decreased
from the amount originally proposed by MSHA. On average, these
penalties were reduced by about half of the amount initially proposed
by MSHA using its standard formula. In addition, regardless of the
levels of gravity and negligence found by MSHA's inspectors, penalties
were reduced, on average, between 47 percent and 66 percent. Proposed
penalties assessed by MSHA based on the highest and lowest levels of
gravity and negligence found by MSHA inspectors were reduced by the
greatest amounts (see table 6).
Table 6: Contested Penalty Reductions by Gravity and Negligence
Indicators, 1996 to 2006:
Likelihood of accident[B].
Elements of gravity and negligence[A]: Gravity of violation: Accident
occurred;
Percentage of contested penalties that were reduced: 63.5%;
Average percentage reduction: 59%.
Elements of gravity and negligence[A]: Gravity of violation: Highly
likely to occur;
Percentage of contested penalties that were reduced: 65.5%;
Average percentage reduction: 49%.
Elements of gravity and negligence[A]: Gravity of violation: Reasonably
likely to occur;
Percentage of contested penalties that were reduced: 51.3%;
Average percentage reduction: 47%.
Elements of gravity and negligence[A]: Gravity of violation: Unlikely
to occur;
Percentage of contested penalties that were reduced: 32.4%;
Average percentage reduction: 54%.
Elements of gravity and negligence[A]: Gravity of violation: No
likelihood;
Percentage of contested penalties that were reduced: 45.7%;
Average percentage reduction: 66%.
Potential injury or illness[B].
Elements of gravity and negligence[A]: Gravity of violation: Fatal;
Percentage of contested penalties that were reduced: 59.4%;
Average percentage reduction: 52%.
Elements of gravity and negligence[A]: Gravity of violation: Permanent
injury;
Percentage of contested penalties that were reduced: 57.4%;
Average percentage reduction: 47%.
Elements of gravity and negligence[A]: Gravity of violation: Lost days;
Percentage of contested penalties that were reduced: 46.5%;
Average percentage reduction: 48%.
Elements of gravity and negligence[A]: Gravity of violation: No lost
work days;
Percentage of contested penalties that were reduced: 31.2%;
Average percentage reduction: 57%.
Number of miners affected[B].
Elements of gravity and negligence[A]: Gravity of violation: 0-1
miners;
Percentage of contested penalties that were reduced: [C];
Average percentage reduction: [C].
Elements of gravity and negligence[A]: Gravity of violation: 2-9
miners;
Percentage of contested penalties that were reduced: [C];
Average percentage reduction: [C].
Elements of gravity and negligence[A]: Gravity of violation: 10 or more
miners;
Percentage of contested penalties that were reduced: [C];
Average percentage reduction: [C].
Elements of gravity and negligence[A]: Negligence by mine operator[B]:
Reckless;
Percentage of contested penalties that were reduced: 68.8%;
Average percentage reduction: 55%.
Elements of gravity and negligence[A]: Negligence by mine operator[B]:
High;
Percentage of contested penalties that were reduced: 61.4%;
Average percentage reduction: 50%.
Elements of gravity and negligence[A]: Negligence by mine operator[B]:
Moderate;
Percentage of contested penalties that were reduced: 43.6%;
Average percentage reduction: 48%.
Elements of gravity and negligence[A]: Negligence by mine operator[B]:
Low;
Percentage of contested penalties that were reduced: 50.9%;
Average percentage reduction: 49%.
Elements of gravity and negligence[A]: Negligence by mine operator[B]:
None;
Percentage of contested penalties that were reduced: 55.8%;
Average percentage reduction: 57%.
Source: GAO analysis of MSHA data.
[A] Initial penalty proposals are based on the findings from mine
inspections and are calculated using MSHA's standard formula. The
entities involved in the appeals process may have altered the
inspectors' findings, which could lead to a reduction in the penalty
amount.
[B] Percentages may not add to 100 due to rounding or a small amount of
missing data.
[C] We did not calculate the average proposed penalty for the number of
miners, because most (75 percent) of the violations involved only one
miner.
[End of table]
Entities Involved in the Appeals Process Apply the Statutory Factors to
Determine Penalty Amounts, but Exercise Considerable Discretion:
While all of the entities involved in the appeals process--Labor's
Solicitor's Office, MSHA's CLRs, and the Commission's ALJs--are
required by law to apply the six statutory factors specified in the
Mine Act, they are not legally obligated to use any particular method
to set a final penalty amount when they determine that a reduction from
MSHA's proposed penalty is appropriate. As a result, they have
considerable discretion in deciding on the final penalty amount. Prior
decisions by the Commission require ALJ decisions to be sufficiently
explained.[Footnote 39] However, in some cases we reviewed, while the
reasons supporting a reduction from MSHA's proposed penalty are clearly
explained, the rationale for the final penalty amount is not always
well documented.
Officials from all three of the entities involved in the appeals
process told us that, in determining the size of a final penalty, they
apply the six statutory factors on a case-by-case basis and use their
professional judgment. For example, officials from the Solicitor's
Office and CLRs told us that, when appropriate, the Department of Labor
generally views penalty settlements as being in the best interest of
both the agency and the mine operators because settlements allow them
to avoid costly litigation.[Footnote 40] Attorneys from the Solicitor's
Office also told us that they analyze the evidence presented by MSHA
inspectors and mine operators and assess their chances of winning the
case in deciding whether to settle a penalty or go to trial. For
example, one attorney told us that many of the penalty amounts
contained in settlement agreements are generally the result of
negotiations between the Solicitor's Office and the mine operator. In
commenting on a draft of this report, MSHA and the Solicitor's Office
said that CLRs and attorneys may concede somewhat on the penalty amount
in some settlement cases as long as future compliance with the
standard, or another valid enforcement objective, is agreed to by the
mine operator.
Labor officials told us that, when the CLR program was created, CLRs
were expected to handle approximately 30 percent of all contested
cases. However, our analysis of the CLRs' caseloads indicated that, as
of January 2006, they were assigned only 14 percent of all open cases
contested by mine operators. According to the CLRs, they generally take
a similar approach to that taken by attorneys with the Labor
Solicitor's Office in negotiating settlements. Both CLRs and
Solicitor's Office staff told us that they are encouraged to use MSHA's
standard formula to assess penalty amounts but using the formula is not
required and is not standard practice. When the Solicitor's Office or a
CLR is unable to negotiate a settlement or determines that it would not
be appropriate to settle, the case goes to trial and an ALJ determines
the final penalty amount. Several ALJs told us that they review the
evidence provided by MSHA but the process for determining the final
penalty amount relies greatly on their experience and expertise.
In general, while the reasons supporting a reduction from MSHA's
proposed penalty are clearly explained in ALJ decisions, the rationale
for the final penalty amount is not always well documented. For
example, in one case decided in October 2005, the ALJ reduced MSHA's
proposed penalty from $50,000 to $10,000.[Footnote 41] Although the
judge concluded that the gravity of the violation was less than MSHA
had originally found, thereby supporting a penalty reduction, he
appeared to agree with MSHA's assessment regarding the other five
statutory factors, including MSHA's finding that the operator's degree
of negligence was high.[Footnote 42]
Conclusions:
The risky conditions in underground coal mines were brought to the
nation's attention early in 2006, and the sad consequences have become
a reality for many Americans. As MSHA embarks on the reforms outlined
in the MINER Act and other internal efforts to improve the safety of
mines, it faces hurdles that will need to be overcome in order to
assist the mining industry as it bears the daily responsibility for the
safety and health of America's miners. The mining industry is changing:
production continues to increase, technologies are evolving, and new
workers are entering the mines to replace their experienced colleagues
who are retiring. These changes call for a greater attention to safety
from all entities involved--federal and state officials, mine
operators, miners, and their representatives. Without adequate
training, including practice using safety devices in simulated
emergency conditions, miners may be unable to safely and confidently
escape a mine. Further, absent adequate monitoring of instructors who
provide this training, MSHA cannot determine whether all of its
instructors are properly qualified or whether it has enough instructors
to meet its needs. Perhaps most important, MSHA is unable to determine
whether miners receive timely and appropriate training.
The social, economic, and technological changes in the mining industry
present challenges that will be difficult, if not impossible, for MSHA
to address alone. MSHA and NIOSH have complementary roles, particularly
in developing and approving technologies to help improve mine safety,
and face similar challenges such as high rates of retirements. Yet,
without having a more structured method of coordination, their shared
knowledge base and research cannot be used to effectively speed the
implementation of new safety technology in mines.
Finally, given the trends over the past 10 years for penalties
contested by mine operators, the higher proposed penalties under MSHA's
new penalty structure will likely lead more operators to appeal. This
reaction is also likely to increase the number of cases that are
settled by Labor's Solicitor's Office, MSHA's CLRs, and the ALJs at the
Commission using methods to determine final penalty amounts that are
more subjective than penalties proposed using MSHA's standard formula.
As a result, it is important that penalty decisions are transparent and
contain the necessary information to understand how final penalty
amounts are set. Without such information, it will be difficult to
monitor their decisions over time to ensure that all of the entities
involved in the appeals process are appropriately and consistently
applying the six statutory factors in altering penalty amounts and that
the impact of penalties in protecting miners' safety through greater
compliance by mine operators is not diminished.
Recommendations for Executive Action:
To help mines train their workers under simulated emergency conditions,
the Secretary of Labor should direct MSHA to publicize information and
available tools for training mine workers under such conditions. In
addition, MSHA should periodically review and update this information,
as appropriate.
To help ensure that mine workers are adequately prepared for
emergencies, MSHA should strengthen its monitoring of training. This
monitoring should include:
* reviewing and standardizing districts' procedures for approving new
instructors;
* establishing continuing education requirements for instructors to
help instructors maintain or improve their knowledge and skills;
* improving the data in its records on approved instructors; and:
* developing a process for monitoring miner training that includes
regularly evaluating training sessions, assessing how well learning
objectives are being met, and providing feedback to instructors.
To improve the effectiveness of information sharing between MSHA and
NIOSH, we recommend that the Secretaries of Labor and Health and Human
Services direct their respective agencies to work together to establish
a formal memorandum of understanding to guide their coordination. In
addition, the agencies should periodically review and update the
memorandum, as appropriate.
In order to ensure that there is transparency in penalty
determinations, we recommend that the Department of Labor's Office of
the Solicitor, MSHA, and the Commission take steps to ensure that the
specific rationale for all final penalty amounts, including reductions
from MSHA's proposed penalties, are adequately documented.
Agency Comments:
We obtained comments on a draft of this report from MSHA, the
Department of Labor's Office of the Solicitor, the Department of Health
and Human Services, and the Federal Mine Safety and Health Review
Commission. Their comments are reproduced in appendixes III, IV, and V.
MSHA and the Solicitor also provided technical clarifications, which we
incorporated as appropriate.
MSHA, the Office of the Solicitor, the Department of Health and Human
Services, and the Federal Mine Safety and Health Review Commission
agreed with the recommendations addressed to each of their
organizations. In addition, MSHA noted actions it has either begun or
plans to take in implementing the recommendations. We commend MSHA for
starting work to improve its oversight of the safety of underground
coal mines.
In response to our recommendation that MSHA publicize and periodically
update information on training mine workers under simulated emergency
conditions, MSHA agreed, and stated that it will develop a Web page for
this purpose and will issue an information bulletin to mine operators
about this Web-based resource. To provide mine operators with
additional options, MSHA noted that it has asked NIOSH to examine
methods of providing simulated emergency training and to consider the
cost of these methods.
In response to our recommendation that MSHA strengthen its monitoring
of miner training, MSHA generally agreed and indicated that it will
develop and implement standardized procedures for approving new
instructors. In addition, it will develop an instructor evaluation plan
to use in determining the effectiveness of training provided to miners.
Regarding establishing continuing education requirements for approved
instructors, MSHA indicated that it has asked NIOSH to review the
effectiveness of such requirements. MSHA noted that this action may
require regulatory changes. MSHA also explained that there are other
avenues that instructors can use to stay current on mining issues, such
as attending an annual conference dedicated to training resources for
the industry. MSHA also recognized the need to improve the data it
maintains on instructors and noted that it has plans to improve its
tracking and dissemination of up-to-date information on approved
instructors.
In response to our recommendation that MSHA and NIOSH develop a
memorandum of understanding, both agencies concurred with the need for
a formal agreement and stated that such an agreement will help
strengthen their coordination activities. MSHA noted that both agencies
started the process of developing a memorandum of understanding in 2002
and stated that it will work with NIOSH to revitalize this effort and
complete the process.
MSHA, Labor's Office of the Solicitor, and the Commission agreed with
our recommendation for improving the penalty appeals process. Each of
them agreed that there needs to be transparency in penalty
determinations and that the specific rationale need to be provided when
penalties are reduced from the levels originally proposed. MSHA and the
Solicitor agree that transparency is essential to ensure public
confidence that the purposes of the Mine Act are fulfilled and that
administration of the Mine Act is fair. They commented that they would
formally remind CLRs and attorneys to ensure that the rationale for
each civil penalty agreement is adequately documented in settlement
agreements and case file notes. They also commented that internal
audits of the CLR program have emphasized the need for adequate
documentation to support settlement agreements.
In respect to our characterization of the Washbash Mine Holding Co.
case, the Commission disagreed with GAO's conclusions. We agree with
the Commission that the reasons supporting the reduction are clearly
explained. However, we continue to believe that the rationale for the
final penalty amount was not well documented. In our analysis, we could
not discern the specific reasons why the judge determined that $10,000
was the appropriate fine.
We are sending copies of this report to the Secretaries of Labor and
Health and Human Services, the Chief Commissioner of the Federal Mine
Safety and Health Review Commission, relevant congressional committees,
and other interested parties. Copies will be made available to others
upon request. In addition, the report will be available at no charge on
GAO's Web site at http://www.gao.gov. Please contact me at (202) 512-
7215 if you or your staff have any questions about this report. Other
major contributors to this report are listed in appendix VI.
Signed by:
Daniel Bertoni:
Director, Education, Workforce, and Income Security Issues:
List of Congressional Requesters:
The Honorable Robert C. Byrd:
Chairman:
Committee on Appropriations:
U. S. Senate:
The Honorable Edward M. Kennedy:
Chairman:
The Honorable Michael B. Enzi:
Ranking Member:
Committee on Health, Education, Labor, and Pensions:
U. S. Senate:
The Honorable Tom Harkin:
Chairman:
The Honorable Arlen Specter:
Ranking Member:
Subcommittee on Labor, Health and Human Services, Education and Related
Agencies:
Committee on Appropriations:
U. S. Senate:
The Honorable Patty Murray:
Chair:
The Honorable Johnny Isakson:
Ranking Member:
Subcommittee on Employment and Workplace Safety:
Committee on Health, Education, Labor, and Pensions:
U. S. Senate:
The Honorable George Miller:
Chairman:
Committee on Education and Labor:
House of Representatives:
The Honorable John D. Rockefeller IV:
U. S. Senate:
The Honorable Shelley Moore Capito:
House of Representatives:
The Honorable Alan B. Mollohan:
House of Representatives:
The Honorable Nick Rahall:
House of Representatives:
[End of section]
Appendix I: Scope and Methodology:
To conduct this work, we reviewed relevant statutes, regulations,
policy documents, decisions issued by the Commission and its
administrative law judges (ALJ), and other materials. We spoke with
Mine Safety and Health Administration (MSHA) officials in 6 of the 11
districts, including inspectors, conference litigation representatives
(CLR), and district managers; and officials from the headquarters
office, the National Mine Health and Safety Academy, Educational Policy
and Development, the Educational Field Services, and certified
trainers. We met with representatives from the Office of the Solicitor,
including officials in the headquarters and regional offices, and
interviewed the Chairman of the Federal Mine Safety and Health Review
Commission, its Chief ALJ, and other Commission officials. Finally, we
spoke with officials from universities, a technology manufacturer, the
United Mine Workers of America, the National Mining Association, and
the Joseph A. Holmes Safety Association.
We visited three states to obtain more detailed and qualitative
information regarding the experiences of state mine safety agencies,
mine operators, and MSHA district offices in our research objectives.
We conducted visits in Kentucky, Virginia, and West Virginia. In
Kentucky, we met with state and MSHA district officials. In addition,
we observed a mine rescue competition where we conducted interviews
with mine rescue team members. In Virginia and West Virginia, we met
with state and MSHA district officials. In addition, we visited three
underground coal mines to observe mining operations and to talk with
mine managers, mine rescue team members, and mine workers. We also
spoke with state officials in Pennsylvania. These four states contain
almost 90 percent of all underground coal mines in the United States.
Finally, we met with researchers and other officials at the technical
research centers operated by MSHA and the National Institute of
Occupational Safety and Health (NIOSH).
Survey of Underground Coal Mines:
Study Population and Sampling Design:
To determine the current state of underground coal mines' operations
and challenges in preparing for and responding to mine emergencies, we
surveyed a stratified random probability sample of 342 underground coal
mines from a study population of 665 underground coal mines identified
by MSHA as being active at the end of calendar year 2005. We selected
our sample by five strata defined by the number of mine employees and
the number of mines under the responsibility of a single contact. We
included the last stratum in an attempt to ease the burden on the
survey respondents. Close to 40 percent of the mines selected in the
sample were out of scope for analysis due to closure by the time our
survey fieldwork ended. Information on the coal mine population, the
sample selected, out-of-scope mines, and the respondents across the
five strata can be found in table 7. Ultimately, we received 146
completed, in-scope surveys, for an adjusted response rate of 69
percent.
Table 7: Sample Disposition for Survey of Underground Coal Mines:
Stratum number: 1;
Stratum description: Mine employs between 1 and 16 workers;
Total population size: 180;
Total sample size: 88;
Number in sample that were out of scope: 48;
Number of respondents: 26;
Adjusted response rate for in-scope mines (percent): 65.
Stratum number: 2;
Stratum description: Mine employs between 17 and 36 workers;
Total population size: 152;
Total sample size: 82;
Number in sample that were out of scope: 38;
Number of respondents: 30;
Adjusted response rate for in-scope mines (percent): 68.
Stratum number: 3;
Stratum description: Mine employs between 37 and 199 workers;
Total population size: 147;
Total sample size: 78;
Number in sample that were out of scope: 25;
Number of respondents: 36;
Adjusted response rate for in-scope mines (percent): 68.
Stratum number: 4;
Stratum description: Mine employs 200 or more workers;
Total population size: 49;
Total sample size: 49;
Number in sample that were out of scope: 6;
Number of respondents: 34;
Adjusted response rate for in-scope mines (percent): 79.
Stratum number: 5;
Stratum description: Mine shares contact point with at least four other
mines;
Total population size: 137;
Total sample size: 45;
Number in sample that were out of scope: 16;
Number of respondents: 20;
Adjusted response rate for in-scope mines (percent): 69.
Stratum number: Total;
Stratum description: [Empty];
Total population size: 665;
Total sample size: 342;
Number in sample that were out of scope: 133;
Number of respondents: 146;
Adjusted response rate for in- scope mines (percent): 69[A].
Source: GAO analysis of MSHA data.
[A] Total adjusted response rate is an average based on each stratum's
response rate weighted by its in-scope population.
[End of table]
Survey Development:
To inform the design of the survey questions, we consulted with mine
officials, industry and labor organizations, and federal and state
officials. In addition, we used documents and research about miner
training and mine rescue. Finally, we referred to the recent mine
evacuation regulations developed by MSHA and the Mine Improvement and
New Emergency Response Act of 2006 to ensure we were collecting timely
information on the operations at underground coal mines. A copy of the
survey questionnaire can be found in appendix II.
To verify the clarity, length of time of administration, and
suitability of the questions, we pretested the questionnaire with mine
safety officials at three mines. We revised the instrument based on the
results of the pretests and the feedback we received.
Administration of the Survey:
We used a self-administered mail-out questionnaire that was in the
field between November 2006 and February 2007. We conducted several
follow-up efforts to encourage a higher response rate: a reminder
letter, a second mailing that included another copy of the
questionnaire, and two efforts to contact nonrespondents by telephone.
We ended data collection in February 2007.
Nonsampling Error and Data Quality:
The practical difficulties of conducting any survey may introduce
errors, commonly referred to as nonsampling errors. For example,
difficulties such as how a particular question was interpreted or in
the sources of information that are available to respondents can
introduce unwanted variability into the survey results. We took steps
in the development of the questionnaire, the data collection, and the
data analysis to minimize these nonsampling errors.
In addition to pretesting the questionnaire with relevant individuals
to ensure questions were interpreted in a consistent manner, we edited
all the surveys for consistency before they were sent for keypunching.
All questionnaire responses were entered into our database and a random
sample of the questionnaires was further verified for completeness and
accuracy. In addition to the steps taken during the development of the
survey and its administration, we performed computer analyses to
identify inconsistencies and other indicators of errors. We established
parameters for addressing inconsistent responses that included calling
the respondent for clarification or treating the data as missing. In
addition, all the computer syntax was peer-reviewed and verified by
separate programmers to ensure that it was written and executed
correctly.
Estimates:
Estimates in this report are for the population of underground coal
mines in the United States that were in operation at the end of 2005
and remained open during the course of the survey. Due to mine closure,
some mines are not represented in these results. We found that smaller
mines were more likely to have ceased operation than larger mines.
Therefore, it is possible that different safety practices and
challenges may exist for mines that closed.
Sampling Errors:
The results of random samples like ours are subject to sampling errors
that reflect the differences between the results obtained from the
samples and the results that would have been obtained from a survey of
the entire population under consideration. Because we surveyed a sample
of underground coal mines, our results are estimates of the
characteristics of this population and thus are subject to the sampling
errors associated with samples of this size and type.
Measurements of sampling errors are stated at a certain level of
statistical confidence. GAO used the weighted results to make estimates
about the entire population of underground coal mines. Our confidence
in the precision of the results from this sample is expressed in 95
percent confidence intervals, which are intervals that are expected to
contain the actual population values for 95 percent of the samples we
could have drawn. As a result, we are 95 percent confident that each of
the confidence intervals in this report will include the true values in
the in-scope population. All percentage estimates for our sample have
margins of error--widths of confidence intervals--of plus or minus 8
percentage points or less, at the 95 percent confidence level.
Citation and Penalty Data:
To determine the average of proposed penalty amounts, the number of
penalties contested, and the amount of the final penalties assessed on
mine operators, as well as other violation information, we obtained
data from the Mine Safety and Health Administration. We used data
maintained in the MSHA Standardized Information System (MSIS). The data
represent violations issued to mine operators and the associated
actions taken on those violations (such as the proposed penalty, if the
operator contested the violation, and if the final penalty was reduced)
between January 1996 and October 2006.
To assess the reliability of the data, we (1) performed electronic
testing of the relevant data elements, (2) reviewed related
documentation, and (3) interviewed and worked closely with officials
knowledgeable about the data. We determined that the data were
sufficiently reliable for the purposes of this report.
[End of section]
Appendix II: Survey of Underground Coal Mines:
United States Government Accountability Office:
Survey of Underground Coal Mines:
Introduction:
The U.S. Government Accountability Office (GAO) the research arm of
Congress-is conducting a survey of underground coal mines. Your
responses will provide GAO with the necessary information to inform
Congress about the current state of mines' operations and the
challenges mines face in preparing for and responding to mine
emergencies. In addition, we will report to Congress on mines'
abilities to respond to new requirements set out in the Emergency
Temporary Standard issued by the Mine Safety and Health Administration
(MSHA) and the Mine Improvement and New Emergency Response Act of 2006
(MINER Act).
This survey is not affiliated with requests for information from MSHA
or any other efforts MSHA is conducting to implement the MINER Act or
other regulatory changes.
We ask that you provide responses for the mine identified by the MSHA
Mine ID # below. This mine was selected as part of a random sample of
underground coal mines in the U.S.
Responses will be reported in the aggregate only and will not be
attributed to any specific mine in our report. To assist us, we ask
that you complete and return the survey within one week of the date you
receive it. When responding, you may wish to consult with others who
are familiar with these topics, such as mine rescue team coordinators.
In the event the envelope is misplaced, the return address is: U.S.
Government Accountability Office, P.O. Box 50654, Washington, DC 20077-
0075, Attention: Delores Hemsley. If you have any questions about this
questionnaire, please call or e-mail Joel Green at ('415) 904-2148 ((:
gov) or Sara Schibanoff at (202) 512-4176 (SchibanoffS@gao.gov).
Thank you for your assistance.
Contact Information:
Please provide the following information for the individual
coordinating the completion of this survey so that we may contact him/
her to clarify any responses, or obtain additional information, if
necessary.
Name:
Title:
Mine Name:
Telephone Number: ( )
Email address:
MSHA Mine ID #:
Mine Workers:
1. How many employees and contractors are currently employed at your
mine? Include full-and part-time workers in your counts.
Employees:
Contractors:
2. Typically, how many mine workers are underground per shift?
workers per shift:
3. Does your mine currently use the practice of "hot seating" at the
change of shifts when mine workers from overlapping shifts are
underground at the same time?
Yes.
No.
4. A. In calendar year 2006, has your mine conducted mine emergency
evacuation drills with your mine workers?
Yes.
No (please skip to question 10)
B. If yes, how many emergency evacuation drills have you conducted?
Emergency evacuation drills:
C. When was the most recent evacuation drill conducted?
(Month/day):
D. Was an MSHA representative present at any of the emergency
evacuation drills conducted in calendar year 2006?
Yes.
No.
Do not know.
5. How was the most recent evacuation drill conducted?
Please select one:
Mine workers exited the mine riding on the man trip:
Mine workers exited the mine on foot:
Mine workers used a combination of riding on the man trip and walking
to exit the mine on foot:
Other, please describe below:
6. During the evacuation drills conducted in calendar year 2006, how
many mine workers practiced donning their self contained self rescuers
(SCSRs)?
None of them. Please skip to question 10.
Some of the them.
Most of the them.
All of the them.
7. In calendar year 2006, how many mine workers performed the following
activities during exercises with SCSRs?
Select one for a-f:
None of them;
Some of them;
Most of them;
All of them.
a. Opening the unit;
b. Donning nose clips;
c. Inserting the mouthpiece;
d. Starting the device;
e. Operating the device;
f. Other, please describe below:
8. In general, how challenging is it for mine workers to complete these
activities during exercises?
Not at all challenging.
A little challenging.
Moderately challenging.
Greatly challenging.
We did not conduct these exercises.
Do not know.
9. If mine workers donned their SCSRs during evacuation drills in 2006,
which devices did they don?
a) Individual SCSR?
Yes.
No.
b) Training SCSR?
Yes. If yes, please specify the type of model:
No.
10. How many different models of SCSRs are currently available to your
mine workers in the event of an emergency?
model(s) of SCSRs:
11. In calendar year 2006, has your mine conducted an exercise in which
your mine workers practiced taking off one SCSR and donning another
SCSR of the same model?
Yes. If yes, please describe how this training was conducted:
No.
12. In calendar year 2006, has your mine conducted an exercise in which
your mine workers practiced taking off one SCSR and donning another
SCSR of a different model?
Yes. If yes, please describe how this training was conducted:
No.
13. Does your mine have directional lifelines installed for emergency
evacuation?
Yes. If yes, are the directional lifelines fire resistant? Yes. No.
No. If no, please explain why directional lifelines have not been
installed:
14. Some mines have conducted drills in environments that simulate
actual emergency situations. In calendar year 2006, have you conducted
any emergency drills in simulated environments?.
Yes.
No. If no, please skip to question 16.
15. If you have you conducted emergency drills in simulated
environments, please provide examples of the types of activities
included in these exercises for the following scenarios: (Attach
additional pages if necessary).
Fire.
Explosion;
Gas inundation.
Water inundation.
Other, please describe:
16. During calendar year 2006, did your mine conduct the following
activities to assess mine workers knowledge or skills after they
participated in mine worker emergency training?
Please; answer; "yes" or "no"to each item.
a. Mine worker completes evaluation form eliciting feedback about
instructor/instruction;
b. Mine worker completes written test;
c. Mine worker completes oral test;
d. Mine worker demonstrates ability to instructor;
e. Obtain feedback from mine worker's supervisor on knowledge or skills
gained;
f. Other, please describe:.
17. To what extent do the following areas related to mine workers
currently pose a challenge to your mine in preparing for and responding
to mine emergencies, if at all?
Please select one of the following:
Not a challenge:
A minor challenge:
A moderate challenge:
A major challenge:
Not applicable:
a. Preparing mine workers to use SCSRs for escape.
b. Familiarizing mine workers with escape routes.
c. Training mine workers in first responder-type activities, such as
fire fighting techniques.
d. The loss of experienced mine workers due to retirements.
e. The amount of time needed to train new mine workers.
f. The availability of training centers that can simulate an emergency
situation.
g. The availability of training in a simulated mine emergency
situation:
h. The availability of certified instructors who can conduct simulated
mine emergency training.
i. The cost associated with simulated mine emergency training .
j. Other, please describe:.
Mine Rescue Teams:
18. How many mine rescue teams do you currently have available to you?
Teams:
19. What are the names of your current mine rescue teams? Please refer
to the two primary teams that you use (i.e. the two that you report to
MSHA).
a) Team # 1:
b) Team #2:
Note: For the remainder of the survey, you will be asked to answer
questions about these two teams (e.g. "Team 1 '; "Team 2"). Please
refer to the teams as you have identified them in Question 19 when
answering these questions.
20. A. Which of the following best describes the composition of your
current mine rescue Team #1?
Please check one:
a. Comprised of mine workers from your mine whose primary
responsibilities are to serve only your mine.
b. Comprised of state employees.
c. Comprised of mine workers from multiple mines owned by different
operators (may or may not be state-sponsored/designated).
d. Comprised of mine workers from multiple mines owned by the same
operator (may or may not be state-sponsored/designated).
e. Comprised of members with underground coal mine experience and
organized through a third-party vendor.
f. Other, please describe:
B. For question 20A above, if you selected "c" or "d," is Team #1 state-
sponsored/designated or not?
Yes, it is state-sponsored or designated.
No, it is not state-sponsored or designated.
Do not know.
Not applicable:
21. A. Which of the following best describes the composition of your
current mine rescue Team #2?
Please check one:
a. Comprised of mine workers from your mine whose primary
responsibilities are to serve only your mine.
b. Comprised of state employees.
c. Comprised of mine workers from multiple mines owned by different
operators (may or may not be state-sponsored/designated).
d. Comprised of mine workers from multiple mines owned by the same
operator (may or may not be state-sponsored/designated).
e. Comprised of members with underground coal mine experience and
organized through a third-party vendor.
f. Other, please describe.
B. For question 21A above, if you selected "c" or "d," is Team #2 state-
sponsored/designated or not?
Yes, it is state-sponsored or designated:
No, it is not state-sponsored or designated.
Do not know.
Not applicable.
22. During calendar year 2006, on average, how many hours will each
mine rescue team member have participated in training (include any
training planned for the remainder of the year)? Please make an
estimate if you do not have an exact number, and include classroom and
participation in training exercises in your estimate.
a) Team #1?
Please check one:
12 to 23 hours.
24 to 47 hours.
48 to 63 hours.
Over 64 hours.
Do not know.
b) Team #2?
Please check one:
12 to 23 hours.
24 to 47 hours.
48 to 63 hours.
Over 64 hours.
Do not know.
23. In calendar year 2006, has the amount of training your mine rescue
teams participated in or planned increased, decreased, or stayed the
same in comparison to calendar year 2005?
a) Team #1?
Stayed the same:
Increased:
Decreased:
Please explain why any changes occurred if you selected increase or
decrease.
b) "Team #2?
Stayed the same.
Increased.
Decreased.
Please explain why any changes occurred if you selected increase or
decrease:
24.
A. In calendar year 2006, did either of your mine rescue teams
participate in mine rescue competitions?
a) Team #1:
Yes.
No.
Do not know.
Team #2:
Yes.
No.
Do not know.
B. How much time, on average did the team spend preparing for these
competitions? Please check one;
Team #1:
8 hours or less.
Between 9 and 16 hours.
Between 17 and 24 hours.
Between 25 and 40 hours.
Between 41 and 80 hours.
More than 80 hours.
Do not know.
Team #2:
8 hours or less.
Between 9 and 16 hours.
Between 17 and 24 hours.
Between 25 and 40 hours.
Between 41 and 80 hours.
More than 80 hours.
Do not know.
C. Is preparation for mine rescue competitions part of fulfilling the
annual training requirements for your teams or is it additional
training? Please check one.
Team #1:
Part of fulfilling annual training.
In addition to annual training.
Do not know.
Team #2:
Part of fulfilling annual training.
In addition to annual training.
Do not know.
25. To what extent is each of the following factors a challenge, if at
all, in your rescue teams' ability to prepare for and respond to mine
emergencies?
Please select one of the following for questions a-m.
Not a challenge.
A minor challenge.
A moderate challenge.
A major challenge.
Not applicable.
a. The number of mine rescue teams available to assist in the event of
a mine emergency.
b. The number of mine workers available to participate on mine rescue
teams.
c. Loss of experienced team members due to retirements.
d. Amount of time needed to train and prepare new team members.
e. Access to practice facilities.
f. The opportunity to participate in mine rescue competitions that
simulate a real emergency situation.
g. The opportunity to participate in training exercises that simulate a
real emergency situation.
h. The opportunity to conduct simulated activities that include all
stakeholders that would be involved in an emergency (MSHA, state,
union, and mine officials; rescue team; miners).
i. The legal liability associated with assisting mines other than your
own during emergencies.
j. The funding required to train mine rescue teams.
k. The funding required to equip mine rescue teams.
l. The availability of up-to-date mine rescue technology and equipment.
m. Other, please describe.
26. Has your mine received any assistance from the Mine Safety and
Health Administration (MSHA) on preparing for a mine emergency?
Yes.
No. If no, please skip to question 28:
27. If yes, please provide examples of the type of assistance you have
received from MSHA on preparing for a mine emergency.
28. What do you think of the amount of assistance that MSHA provided
your mine in preparing for a mine emergency?
They provided too much.
The amount they provided is just right.
They do not provided enough. If you checked this one continue to 28A.
28A. What additional assistance would you like to receive from MSHA to
help your mine prepare for a mine emergency?
The following questions ask about anticipated changes resulting from
the MINER Act. Recognizing that guidance about specific provisions from
the Act may not be available yet, please answer these questions to the
best of your ability based on your current thinking In; addition,
please answer only for anticipated changes resulting from the MINER Act
as; opposed to anticipated changes for other reasons.
29. Which of the following provisions of the MINER Act will; require
changes, if any, to current practices at your mine?
Please select one of the following for questions a-g.
No change.
A minor change.
A moderate change.
A major change.
Not applicable.
a. That mine rescue teams be available at the mine within one hour
ground travel time from the mine rescue station.
b. That mine rescue teams participate at least annually in two local
mine rescue contests.
c. That mine rescue teams train on a regular basis in the mines they
are responsible for covering.
d. That the mine rescue team is knowledgeable about the operations and
ventilation of the covered mines.
e. That certain mine rescue teams are comprised of individuals with a
minimum of 3 years underground coal mine experience that occurred
within the 10 years preceding their employment on the mine rescue team.
g. Other, please describe.
30. A. Do you anticipate making changes to the composition of your mine
rescue Team #l as a result of provisions in the MINER Act? Please
select the option that best describes your new team.
Please check one:
a. New team will be comprised of mine workers from your mine whose
primary responsibilities are to serve only your mine.
b. New team will be comprised of state employees.
c. New team will be comprised of mine workers from multiple mines owned
by different operators (may or may not be state-sponsored/designated).
d. New team will be comprised of mine workers from multiple mines owned
by the same operator (may or may not be state-sponsored/designated).
e. New team will be comprised of members with underground coal mine
experience and organized through a third-party vendor.
f. No change.
g. Other, please describe:
B. For question 30A above, if you selected "c" or "d," do you
anticipate Team #1 being state-sponsored/designated or not?
Yes, it will be state-sponsored or designated:
No, it will not be state-sponsored or designated.
Not applicable.
31. A. Do you anticipate making changes to the composition of your mine
rescue Team #2 as a result of provisions in the MINER Act? Please
select the option that best describes your new team.
Please check one
a. New team will be comprised of mine workers from your mine whose
primary responsibilities are to serve only your mine.
b. New team will be comprised of state employees.
c. New team will be comprised of mine workers from multiple mines owned
by different operators (may or may not be state-sponsored/ designated).
d. New team will be comprised of mine workers from multiple mines owned
by the same operator (may or may not be state-sponsored/ designated).
e. New team will be comprised of members with underground coal mine
experience and organized through a third-party vendor.
f. No change.
g. Other, please describe.
B. For question 31A above, if you selected "c" or "d," do you
anticipate Team #2 being state-sponsored/ designated or not?
Yes, it will be state-sponsored or designated:
No, it will not be state-sponsored or designated:
Not applicable.
32. In your opinion, in the event of an emergency, what should the
requirement be for ground travel time between the mine rescue station
and the mine?
Hours:
32a. Please explain the factors you considered in selecting this amount
of time:
Additional Comments:
33. Do you have any other comments that you would like to share?
[End of section]
Appendix III: Comments from the Department of Labor:
U.S. Department of Labor:
Mine Safety and Health Administration:
1100 Wilson Boulevard:
Arlington, Virginia 22209-3939:
May 01 2007:
Mr. Daniel Bertoni:
Director:
Education, Workforce, and Income Security Issues:
General Accounting Office:
441 G. Street, NW:
Washington, DC 20548:
Dear Mr. Bertoni:
Thank you for the opportunity to comment on your draft report titled
"Better Oversight and Coordination by MSHA and Other Federal Agencies
Could Improve Safety for Underground Coal Miners" (GAO-07-622). We
concur with the intent of your recommendations and our response is
enclosed. Also included is an additional commentary which highlights
sections of your report we believe require correction or clarification.
We look forward to continued dialogue with your staff regarding any
additional corrective actions which may be required to resolve your
recommendations. If you have any questions, please contact Brent
Carpenter (MSHA) at (202) 693-9782 or Heidi Strassler (SOL) at (202)
693-9366.
Sincerely,
Signed by:
Richard E. Stickler:
Assistant Secretary of Labor for Mine Safety and Health:
Signed by:
Jonathan L. Snare:
Acting Solicitor of Labor:
Enclosure:
GAO Recommendation:
To help [mine operators] train their workers under simulated emergency
conditions, the Secretary of Labor should direct MSHA to publicize
information and available tools for training mine workers under such
conditions. In addition, MSHA should periodically review and update
this information, as appropriate.
MSHA Response:
Through our website, MSHA will establish a "single-source" page
identifying where operators may be able to obtain training facilities
for simulated training (e. g. fire houses, simulated mines, military
resources). This page will consolidate various information currently
available on the MSHA web site, as well as incorporate subsequently
released information. We will also issue a Program Information Bulletin
(PIB) for mine operators to make them aware of the web site and the
information available.
One example of MSHA publicizing useful information regarding emergency
training involved the availability of self-contained, self-rescuer
(SCSR) "expectation training models". By way of background, MSHA's
Emergency Mine Evacuations Final Rule of December 8, 2006, included
language requiring the donning of an SCSR in a simulated smoke filled
environment. The Rule also provided for "expectations training" which
requires breathing through a device that replicates the actual
breathing experience of an SCSR. Likewise, in developing the Emergency
Mine Evacuations Rule, MSHA asked the SCSR manufacturers to develop
training models that would replicate the actual breathing experience of
their live SCSR. The manufacturers complied with MSHA's request and on
March 30, 2007, MSHA published in the Federal Register a notice
alerting mine operators to the availability of realistic SCSR training
units.
In an effort to provide mine operators additional training resources
and options, MSHA's Office of Educational Policy and Development (EPD)
recently requested that NIOSH conduct research to examine various
methods of providing simulated mine emergency training. In particular,
EPD asked NIOSH to identify practical approaches to this issue,
recognizing that some simulated training may be somewhat cost
prohibitive.
GAO Recommendation:
To help ensure that mine workers are adequately prepared for
emergencies, MSHA should strengthen its monitoring of training. This
monitoring should include:
* Reviewing and standardizing districts' procedures for certifying new
instructors:
For clarification, MSHA approves instructors to conduct Part 48
training. Generally, MSHA reviews an instructor applicant's
qualifications for "an ability to teach" and "subject knowledge."
MSHA's Educational Policy and Development and Coal Mine Safety & Health
will coordinate the development and implementation of standardized
procedures to ensure consistency of this approval process.
* Establishing continuing education requirements for instructors to
help instructors maintain or improve their knowledge and skills;
Through a variety of conferences and educational forums, MSHA approved
instructors can enhance their health and safety knowledge and
instructional skills. For example, the annual EPD-sponsored Training
Resources Applied to Mining Conference is specifically designed for
mine safety instructors and is attended by approximately 600
instructors from throughout the mining industry. In addition, MSHA
partners with industry representatives in offering regional health and
safety conferences. EPD sponsors an organization dedicated to the
health and safety of our nation's miners and encourages participation
by industry and labor in local and regional Association meetings. MSHA
partners with this organization to provide materials/ publications,
such as Professional Miner newsletters and the Holmes Safety
Association Bulletins.
Implementing a continuing education program for MSHA approved
instructors may require a change in the existing regulatory standards.
EPD has recently requested NIOSH to analyze the effectiveness of
requiring a continuing education requirement for our approved
instructors. MSHA will review options, including a potential regulatory
revision, as we more fully consider this recommendation.
* Improving the data in its records on certified instructors; and:
MSHA recognizes that the existing database of approved instructors
needs to be updated. As a result, we have developed an initiative that
involves MSHA's Educational Field Services Training Specialists and
Small Mine Office Safety Specialists who have previous coal experience.
The initiative includes a visit to each underground coal mine to
determine that the mine safety and training staff (including contract
and state grant trainers) are aware of mine specific training
requirements. The visit will also include a review of the Part 48 and
75 training plans. This will help to determine that appropriate
information and objectives are met and a sample survey of miners will
be done to determine that the training is adequate and beneficial. The
specialists have also been asked to inquire about the future training
schedule so that follow up visits can be planned to further evaluate
the training.
Additionally, we recognize the need for improvement in data collection.
In the short-term, MSHA is developing a plan to create new electronic
reports for tracking people who have been approved as instructors. MSHA
is also working to improve instructor monitoring and tracking of
instructor monitoring. The long-term process for creating the
capability to update, maintain, and disseminate current instructor data
includes the following sub-processes: development of business rules,
completion of a cost-benefit analysis, creation of a funding request,
identification of system requirements, identifying specifications, and
developing code.
* Developing a process for monitoring miner training that includes
regularly evaluating training sessions, assessing how well learning
objectives are being met, and providing feedback to certified
instructors.
MSHA intends to develop an instructor evaluation and feedback plan to
determine the effectiveness of instruction. Through monitoring
instructors, MSHA will assess the instructors' learning objectives and
evaluation strategy to ensure that the training needs of the miners are
met. As applicable, recommendations will be provided to the instructor
after completion of the instructor monitoring. Finally, MSHA intends to
explore the option of using individuals with requisite mine experience
for the purpose of monitoring instructors.
GAO Recommendation:
To improve the effectiveness of information sharing between MSHA and
NIOSH, we recommend that the Secretaries of Labor and Health and Human
Services direct their respective agencies to work together to establish
a formal memorandum of understanding to guide their coordination. In
addition, the agencies should periodically review and update the
memorandum, as appropriate.
MSHA Response:
We agree that a formal "memorandum of understanding" (MOU) between MSHA
and NIOSH would serve to better guide coordination efforts and
formalize working relationships. An effective MOU would set forth an
understanding between MSHA and NIOSH on issues of coordination,
communication, and cooperation, and would be periodically updated by
the agencies when appropriate to revise procedures or update sections
as needed. Starting in 2002, MSHA and NIOSH worked together to develop
a draft MOU concerning the issues mentioned above, however, the
document was never finalized and signed. MSHA plans to revitalize the
MOU effort with NIOSH and bring it to closure.
GAO Recommendation:
In order to ensure that there is transparency in penalty
determinations, we recommend that the Department of Labor's Office of
the Solicitor, MSHA, and the Commission take steps to ensure that the
specific rationale for all final penalty amounts, including reductions
from MSHA's proposed penalties, are adequately documented.
MSHA and Solicitor's Office (SOL) Response:
MSHA proposes penalty assessments in conformance with the procedures
and tables listed in 30 C.F.R. part 100. That regulation sets out the
factors to be considered and provides for notice of the proposed
penalty assessment, which may be contested before the Federal Mine
Safety and Health Review Commission (Commission) After the penalty is
proposed, of course, MSHA and SOL sometimes decide to settle an alleged
violation and its proposed penalty, based on several factors. Often,
new factual information is found during the post-assessment discovery
process, and the evidence necessary to support the violation is re-
evaluated. Professional judgments are made regarding the strength of
the evidence as applied to the cited standard and the likelihood of
success at trial, including the likely amount of any final penalty
which may be imposed by the administrative law judge. MSHA and SOL
agree that transparency in any resulting civil penalty settlement
agreement is essential to ensure public confidence that the purposes of
the Mine Act are fulfilled and that administration of the Mine Act is
fair. Under the Mine Act, every time the parties reach a settlement
agreement, it must be submitted to the Commission, which is
independent, for approval. Because the Mine Act requires Commission
approval of settlement agreements, and because the Commission will only
approve a settlement agreement if it determines that it is in the best
interest of the public, settlement agreements always contain supporting
reasons for the positions adopted by the parties involved. Moreover,
internal audits of the CLR program emphasize the need for adequate
documentation to support settlement agreements. In addition, MSHA and
SOL will formally remind CLRs and attorneys to ensure that the
rationale for all civil penalty agreements is adequately documented in
settlement agreements and case file notes.
[End of section]
Appendix IV: Comments from the Department of Health & Human Services:
Department Of Health & Human Services:
Office of the Assistant Secretary for Legislation:
Washington, D.C. 20201:
Apr 26 2007:
Daniel Bertoni, Director:
Education, Workforce, and Income Security Issues:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Mr. Bertoni:
The Department of Health and Human Services has reviewed the U.S.
Government Accountability Office's (GAO) draft report entitled: Mine
Safety: Better Oversight and Coordination by MSHA and Other Federal
Agencies Could Improve Safety for Underground Coal Miners " (GAO 07-
622).
The department concurs with the recommendation to establish an MOU
between NIOSH and MSHA. We agree that this will help strengthen current
coordination activities.
The department appreciates the opportunity to comment on this draft
report before its publication.
Sincerely,
Signed for:
Vincent J. Ventimilgia:
Assistant Secretary for Legislation:
[End of section]
Appendix V: Comments from the Federal Mine Safety and Health Review
Commission:
Federal Mine Safety And Health Review Commission:
Office Of The Chairman:
April 19, 2007:
Mr. Daniel Bertoni, Director:
Education, Workforce, and Income Security Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, D.C. 20548:
Dear Mr. Bertoni:
Re: Draft Report: Better Oversight and Coordination by MSHA and Other
Federal Agencies Could Improve Safety for Underground Coal Miners:
The Federal Mine Safety and Health Review Commission (the Commission)
is pleased to comment on the above Draft Report. We commend the GAO on
its thorough research and thoughtful recommendations regarding the
current federal program governing the safety and health of our Nation's
underground coal miners. Our comments are limited to those sections
specifically addressing the Commission's role in the resolution of
disputes arising from the enforcement of the Federal Mine Safety and
Health Act of 1977, as amended (the Mine Act), but we find the report's
research, conclusions, and recommendations regarding other aspects of
the federal program enlightening and beneficial.
At the outset, the Commission agrees with the GAO that there needs to
be transparency in penalty determinations and that specific rationales
need to be provided when penalties are reduced from those levels
originally proposed by MSHA. As the Draft Report indicates at page:
38, it has long been the policy of the Commission that such reductions
must be supported on the record:
When . it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves the
Commission and its judges to provide a sufficient explanation of the
bases underlying the penalties assessed by the Commission. If a
sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase or
lowering of penalties after contest may be jeopardized by an appearance
of arbitrariness.[Footnote 43]
At the same time, it must be remembered that Congress adopted the split
enforcement model, whereby MSHA enforces the Mine Act and the
Commission adjudicates disputes arising under the Act, so as to provide
for independent, de novo review of the circumstances surrounding an
alleged violation of the Act and MSHA's rationale for seeking a civil
sanction. Thus, it should be expected that among the 6 percent of
penalties proposed to be assessed by MSHA that are appealed (Draft
Report at 5), a significant share would end up being reduced once all
issues are fully joined before a Commission judge. At that point and in
a neutral forum, the operator is allowed to present evidence of
mitigating circumstances or evidence that the MSHA inspector
misinterpreted or misapplied the safety or health standard in question.
Once that countervailing evidence has been presented to the judge,
MSHA's preliminary characterizations as to the relative seriousness or
operator culpability surrounding the citation might not prevail.
Conversely, it can also be the case that the evidence adduced at a full
hearing might demonstrate higher levels of seriousness or negligence
than originally alleged by MSHA, thus warranting the assessment of a
penalty by the judge that exceeds MSHA's proposed penalty. In either
case, the Commission's guidance to its judges has been explicit:
While Commission judges are accorded broad discretion in assessing
civil penalties under the Mine Act, such discretion is not unbounded
and must reflect proper consideration of the penalty criteria set forth
in section 110(i) and the deterrent purpose of the Act. Westmoreland
Coal Co., 8 FMSHRC 491, 492 (April 1986) (citing Sellersburg Stone Co.,
5 FMSHRC 287, 290-94 (Mar. 1983), aff'd d, 736 F.2d 1147 (7th Cir.
1984)). In reviewing a judge's penalty assessment, the Commission
determines whether the penalty is supported by substantial evidence and
is consistent with the statutory penalty criteria. Hubb Corp., 22
FMSHRC 606, 609 (May 2000). While "a judges assessment of a penalty is
an exercise of discretion, assessments lacking record support, infected
by plain error, or otherwise constituting an abuse of discretion are
not immune from reversal. . . ." U.S. Steel Corp., 6 FMSHRC 1423, 1432
(June 1984).[Footnote 44]
In that connection, the Commission submits that the reduction in the
civil penalty in Wabash Mine Holding Co., 27 FMSHRC 672 (October 2005)
(Draft Report at 39), comports with the Commission's policy set forth
above and with the GAO's persuasive exhortation that final assessments
of penalties be transparently determined and adequately documented.
Accordingly, we respectfully but firmly disagree with the GAO's
conclusion that the judge's rationale for reducing the penalty amount
in that case was not well documented.
In Wabash, the judge reduced a $50,000 proposed penalty to $10,000
after explicitly finding, contrary to MSHA's arguments, that the
subject violation did not contribute to the fatal accident at issue in
the case. Id. at 684-85. The violation thus went from one alleged by
MSHA to have contributed to a fatality to one found by the judge to
have had nothing to do with the fatality, thereby greatly reducing its
level of seriousness. Nevertheless, the resulting penalty of $10,000,
based largely upon the judge's agreement with MSHA that the violation
resulted from the operator's high degree of negligence, is more than
five times larger than the average penalty MSHA normally proposes for
violations attributed to high negligence. (Draft Report at 33, Table
4). In short, we believe the judge in Wabash sufficiently articulated
his reasons for reducing the penalty initially proposed by MSHA.
Other than our substantive comments set forth above, we have only two
stylistic matters to bring to your attention. First, the citation to
the Jim Walters decision in footnote 40 on page 39 of the Draft Report
should read: Jim Walter Resources, Inc., 28 FMSHRC 579, 606-07 (August
2006). Second, Figure 1 on page 10 does not provide for the
circumstance where no civil penalty is ultimately assessed because the
citation or order upon which it is based has been vacated by the
Commission judge, the Commission, or the Circuit Court of Appeals.
The Commission once again commends the GAO on its informative and
thoughtful Draft Report, and we thank you for the opportunity to
provide comments on the report before it is released in final form. If
you have any questions or require additional information from the
Commission, please do not hesitate to contact us.
Sincerely,
Signed by:
Michael F. Duffy:
Chairman:
[End of section]
Appendix VI: GAO Contact and Acknowledgments:
GAO Contact:
Daniel Bertoni, Director, (202) 512-7215, bertonid@gao.gov:
Staff Acknowledgments:
Revae E. Moran, Assistant Director, and Sara L. Schibanoff, Analyst-in-
Charge, managed this assignment. Other staff who made key contributions
throughout the assignment are Joel A. Green, Jeremie C. Greer, Gillian
M. Martin, Mary Roy, and Rachael C. Valliere. Sheila R. McCoy provided
legal assistance. Cindy K. Gilbert, Nancy A. Hess, Catherine M. Hurley,
and Shana B. Wallace assisted with the methodology and statistical
analysis.
FOOTNOTES
[1] Pub. L. 109-236.
[2] The Mine Act gives MSHA the authority to issue an ETS when the
agency determines that miners are exposed to grave danger from exposure
to substances or agents determined to be toxic or physically harmful,
or to other hazards, and that an emergency standard is needed to
protect miners from such danger. The ETS becomes effective upon
publication in the Federal Register and remains in effect until
replaced by permanent rules that go through the regular rule-making
process, but for no longer than 9 months.
[3] 30 C.F.R. Parts 48, 50, and 75, Emergency Mine Evacuation; Final
Rule, 71 Fed. Reg. 12,252 (March 9, 2006).
[4] 30 C.F.R. Parts 3, 48, 50, and 75, Emergency Mine Evacuation; Final
Rule, 71 Fed. Reg. 71,430 (December 8, 2006).
[5] The MINER Act also imposes some new training requirements for mine
rescue teams. MSHA is required to promulgate regulations implementing
these requirements within 18 months of June 15, 2006. 30 U.S.C. §
825(e)(2).
[6] If the penalty proposed by MSHA is not contested by the mine
operator within the time allotted by law, it becomes a final order of
the Commission.
[7] Mines that are recognized as more dangerous, such as those
containing high levels of methane gas, are inspected more frequently.
[8] MSHA inspectors are authorized to issue either a citation or a
withdrawal order when they observe a health and safety violation. All
withdrawal orders compel the removal of miners from the affected work
areas until the observed hazard is terminated. This, in essence, could
halt production in a particular area of the mine.
[9] Criteria and Procedures for Proposed Assessment of Civil Penalties;
Final Rule, 72 Fed. Reg. 13,592 (March 22, 2007) (codified at 30 C.F.R.
Part 100).
[10] Under its prior regulations, MSHA also used a "single penalty
assessment" for violations that were not reasonably likely to result in
a reasonably serious injury or illness, and that were abated within the
time set by the inspector. The penalty for these violations was $60.
However, the new regulations eliminate the single penalty assessment.
[11] The MINER Act defines flagrant violations as those that involve "a
reckless or repeated failure to make reasonable efforts to eliminate a
known violation of a mandatory health or safety standard that
substantially and proximately caused, or reasonably could have been
expected to cause, death or serious bodily injury." 30 U.S.C. §
820(b)(2).
[12] A mine operator's first conviction under these criminal provisions
may carry a fine of up to $250,000 and imprisonment for up to 1 year.
Subsequent convictions are punishable by fines of up to $500,000 and 5
years of imprisonment. 30 U.S.C. § 820(d).
[13] Emergency breathing devices, also known as self-contained self-
rescuers (SCSR), are closed-circuit devices containing or producing an
independent supply of oxygen, enabling miners to breathe in the
presence of hazardous or life-threatening contaminants in the
atmosphere.
[14] Percentage estimates are based on the sample and are subject to
sampling error. We are 95 percent confident that the results we
obtained are within plus or minus 8 percentage points of the true
values of the in-scope population. Each sample element was subsequently
weighted in the analysis to account for all members of the in-scope
population, including those that were not selected.
[15] MSHA made this change in the final rule because it was concerned
that without actually physically inserting the mouthpiece, a miner may
not gain the skills to effectively and properly perform this action.
[16] Although ETS requirements initially were effective immediately,
the final rule issued in December 2006 did not include a required
compliance date for training with breathing devices because, according
to MSHA, training devices that provided the sensation of airflow
resistance and heat were not available for purchase at that time. In
March 2007, MSHA published a notice in the Federal Register informing
mine operators that they must have a purchase order for realistic SCSR
training units by April 30, 2007, and that they must conduct training
within 60 days of the receipt of the units. See Emergency Mine
Evacuation, 72 Fed. Reg. 15,169 (March 30, 2007).
[17] To ensure that four major scenarios--fire, explosion, gas, and
water inundation--are covered each year, the final rule issued in
December requires that a different scenario be used each quarter in
conducting evacuation drills.
[18] In 2006, 15 underground coal mines, mostly in West Virginia and
Pennsylvania, used the West Virginia University Mining Extension
Service's mobile training facility to provide simulated emergency
training to their workers.
[19] For purposes of our survey, small mines are defined as those with
36 employees or fewer, whereas larger mines are those with more than 36
employees.
[20] The packet contained a DVD on the protocol for how to transfer
from one breathing device to another, training manuals on six types of
breathing devices, an article on how to disinfect the devices, and
other related information.
[21] Bituminous Coal Operators' Association and National Mining
Association, Mine Rescue Handbook: Emergency Response Procedures,
Practices and Responsibilities, January 2007.
[22] MSHA's Managerial Emergency Responsiveness Development Program
(MERD) utilizes interview and survey feedback techniques, emergency
situations and role playing, assessment center methods with feedback,
tutorials, and knowledge tests to improve and develop emergency
management capabilities. It was designed specifically for MSHA
managers, but has been used by other organizations such as individual
mines.
[23] MSHA has not yet determined how the mine rescue team requirements
in the MINER Act will be implemented. MSHA officials said they plan to
hold public hearings on the requirements of the act before publishing
final rules. The final rule is due December 2007.
[24] According to a top NIOSH official, most of NIOSH's mining program
activities now fall under the Office of Mine Safety and Health, a new
office established by the MINER Act. According to this official, the
office primarily makes permanent a more informal structure that existed
in NIOSH for mining research and expands NIOSH's focus on safety
technology development.
[25] We have reported that agencies can strengthen their commitment to
work collaboratively by articulating their agreements in formal
documents, such as a memorandum of understanding, interagency guidance,
or an interagency planning document, signed by senior officials in the
respective agencies. See GAO, Results-Oriented Government: Practices
That Can Help Enhance and Sustain Collaboration among Federal Agencies,
GAO-06-15, (Washington, D.C.: Oct. 21, 2005).
[26] This agreement was originally executed between MSHA's predecessor
in the Department of Interior, the Mining Enforcement and Safety
Administration (MESA) and NIOSH's predecessor, the Division of Mining
Research - Health and Safety in the Bureau of Mines in 1976. The
agreement was updated in 1978 after MESA was transferred to the
Department of Labor and renamed MSHA.
[27] When developing strategic plans, GPRA requires agencies to, among
other things, solicit and consider the views and suggestions of those
entities potentially affected by or interested in such a plan. 5 U.S.C.
§ 306(d).
[28] In commenting on our draft report, MSHA noted that it believes
NIOSH provides input into MSHA's rule-making process through research,
peer-reviewed studies, comments on rule-makings, and participation as a
valued member in discussions on technical issues during MSHA rule-
making panels.
[29] In commenting on our draft report, MSHA noted that its rule-making
priorities are published in the Department of Labor's semiannual
Regulatory Agenda, which provides milestones for MSHA rule-making for
the years ahead.
[30] NIOSH officials told us they can complete a project in less time
in the case of an emergency.
[31] If, however, a mine operator is unable to comply with this
requirement, its accident response plan must set forth the alternative
means of compliance, which shall approximate, as closely as possible,
the degree of functional utility and safety protection provided by a
wireless two-way communications device.
[32] MSHA faces similar shortages in its inspector workforce in coming
years. See GAO, MSHA's Revised Hiring Process Has Improved the Agency's
Recruiting Efforts, But Its Human Capital Strategic Plan Does Not
Adequately Project or Address Its Future Workforce Needs, GAO-07-704R
(Washington, D.C.: May 16, 2007).
[33] NIOSH is required to report out on its work within 18 months after
the enactment of the MINER Act. MSHA then has 180 days after receiving
the report from NIOSH to determine what actions it intends to take.
[34] CLRs are MSHA enforcement staff and are located in every MSHA coal
district. They have been provided with specialized legal training and
are authorized by the agency to negotiate settlements for penalties
that are no higher than $350 and are limited in legal complexity. The
CLRs also oversee conferences requested by mine operators following the
issuance of citations to attempt an informal resolution to the disputed
violation.
[35] Under regulations effective as of April 23, 2007, MSHA's penalties
are assessed in two different penalty categories: regular and special.
Prior to the recent regulatory changes, MSHA issued a third type of
penalty called the single penalty. The single penalty was a flat $60
penalty for violations that are unlikely to cause injury or illness.
This type of penalty accounted for approximately 60 percent of the
penalties issued between 1996 and 2006. MSHA's new regulations
eliminate the single penalty. A regular assessment is the agency's
general penalty and ranges from $112 to $60,000. Special assessments
are reserved for violations in which MSHA elects to waive the regular
assessment and set another penalty consistent with the six statutory
factors. For example, special assessments may be used when an operator
fails to correct certain violations or notify MSHA of certain kinds of
accidents. A special assessment can be as high as $220,000, but this is
for the new flagrant violation established under the MINER Act; the
maximum for most special assessments is also $60,000. Eligibility
guidelines and assessment formulas for special and regular assessments
are outlined in MSHA regulations and agency policies.
[36] MSHA inspectors also determine whether mine operators have made
good faith efforts to correct the violation, which results in a 10
percent reduction in the proposed penalty. Under regulations that were
in effect through April 22, 2007, the good faith reduction was 30
percent.
[37] Criteria and Procedures for Proposed Assessment of Civil
Penalties; Final Rule, 72 Fed. Reg. 13,592, 13,629 (March 22, 2007)
(codified at 30 C.F.R. Part 100).
[38] Sixty-three percent of contested penalties are considered
"significant and substantial," or "S&S," violations. An inspector
designates violations as S&S if they are deemed at least reasonably
likely to cause an injury that results in lost work days. This
designation can trigger more serious sanctions, such as closing a
portion of a mine or closing an entire mine.
[39] In August 2006, the Commission reminded ALJs of the importance of
adequately documenting penalty decisions. Specifically, the Commission
wrote "When . . . it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves the
Commission and its judges to provide a sufficient explanation of the
bases underlying the penalties assessed by the Commission. If a
sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase or
lowering of penalties after contest may be jeopardized by an appearance
of arbitrariness." Jim Walter Resources, Inc., 28 FMSHRC 579, 606-07
(August 2006) (citing Sellersburg Stone Co., 5 FMSHRC 287, 293 (March
1983)).
[40] In addition to the general costs of litigation, in some cases, the
Equal Access to Justice Act requires that the Department of Labor pay a
mine operator's fees and expenses, including reasonable attorneys'
fees, if the ALJ finds that the agency's position was not substantially
justified, such as when an MSHA-proposed penalty is lowered
significantly in formal proceedings. 5 U.S.C. § 504 and 29 C.F.R. Part
2704.
[41] Wabash Mine Holding Co., 27 FMSHRC 672 (October 2005).
[42] See also Jim Walter Resources, Inc., 28 FMSHRC 1068 (December
2006) and Jim Walter Resources, Inc., 28 FMSRC 579 (August 2006).
[43] Jim Walter Resources, Inc., 28 FMSHRC 579, 606-07 (August 2006)
(citing Sellersburg Stone Co., 5 FMSHRC 287,293 (March 1983)).
[44] Jim Walter Resources, 28 FMSHRC at 606.
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