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Time to Modernize Mine Safety By James Sharpe

The Mine Act was substantially amended for the first time ever in 2006, but Democrats want another makeover to give the Mine Safety and Health Administration (MSHA) more power to enforce safety in the nation's mines. On the other hand, Republicans and mine operators say the agency has enough weapons, it just needs to apply them more effectively.

The difficulty in choosing sides in this long-running debate is that both parties have a point. The Mine Act does need to be amended, but not for the reason the Democrats say. The GOP is also mostly correct that this agency has all the juice it needs. After all, MSHA requires abatement, regardless if it is justified or not, sets stiff fines and can close an operation that simply refuses to measure up. Give it more and you will risk martial law in the coalfields and quarry pits.

Nevertheless, the Mine Act is a largely obsolete statute in desperate need of modernization. Sen. John Thune (R-SD) voiced the concern of many when he said recently that MSHA administers a one-size-fits-all approach. That is not MSHA's fault; it's essentially what the Mine Act dictates. For instance, the law considers any operation involved in mineral extraction a "mine," mandates that all perceived violations be cited, and stipulates the required number of annual inspections. Since the Mine Act is a congressional creation, it is more in Thune's power to fix that problem than it is in MSHA's.

Operators want enforcement eased at safe operations. They also assert that the statute is too easy on individual miners who don't want to follow the rules. Anthracite producers say provisions relating to coal, which are heavily weighted toward bituminous mines, don't apply to them. There is increasing agreement that an inherent conflict of interest exists in allowing an agency whose mission is to prevent mine fatalities from investigating them. The law does not require new lifesaving technologies unless the innovation goes through the time-consuming and uncertain notice-and-comment rulemaking process.

But the biggest argument favoring a statutory change comes from the claim that the correlation between alleged violations and injury incident rates is, at best, a weak one.  We hear this from people both inside and outside the agency, and MSHA's own data seem to bear it out. A report done for MSHA and released by ICF Consulting in September 2003 found that the numbers and types of days lost injuries occurring over the previous 5 to 10 years were not well correlated with the citations.

Skeptics could argue the finding could be due more to MSHA's inept enforcement of the Act rather than shortcomings in the law itself. The argument falls flat, though, when one views the Mine Act from the perspective of how well it reflects a central tenet of safety protection: does the law proactively require operators to identify hazards, evaluate the associated risk, and take appropriate corrective action?  It does not, and therein lies the inherent flaw.

Enforcement of U.S mine safety law is predicated on compliance with the enabling regulations.  The main focus, thus, is on adherence to rules.

Under a risk-based model, the focus is on hazards and how to minimize or prevent them. It embodies a whole different approach and way of thinking. It also puts the onus for miner safety and health squarely on the shoulders of the mine operator, where it belongs. 

The Mine Act has played an important role in mine safety in this country by requiring operators to do things that, without question, have saved lives and prevented injuries. As such, it has taken care of the low-hanging fruit. But the talk today is zero fatalities, not fewer of them, and the prediction that one day we will get there is not fanciful.

When that day comes, it will not be because every mine operator was 100 percent compliant with the Mine Act 100 percent of the time. It will be because responsible owners looked beyond the law to fashion a workable risk-based approach. It would be nice if all operators would adopt that approach voluntarily; however, that is fanciful thinking. They require a nudge that could come through a rewritten Mine Act, and that is where Senator Thune and his colleagues come in. Here is hoping it is not fanciful to think they are up to the task of getting the job done.