By James Sharpe
There seems to be a mixed message coming from the Mine Safety and Health Administration (MSHA) about how it is going about fulfilling its mission to assure miners return home safe and healthy from work every day.In a recent interview with Rock Products magazine, MSHA Assistant Secretary Joe Main said,
“It’s not all enforcement. I will tell you that. It is enforcement and carrying out the obligations of the law, but also looking at ways that we can provide other kinds of assistance and guidance to the mining industry.”
Yet the agency’s actions of late tell another story, one focused squarely on enforcement. MSHA recently announced a third round of priority standards it will be targeting come April 1 under its Rules to Live By program. This follow-the-rules-or-else program is the very essence of enforcement.
In February, MSHA reorganized at headquarters by consolidating various functions under the roof of a new entity. OAASEI, an acronym only a government bureaucrat could love, will oversee special enforcement. It will also take charge of developing and managing the agency’s enhanced enforcement strategies, including support and coordination of potential criminal cases.
But the agency really revealed where its heart and head are when it unveiled its fiscal year 2013 budget request in February. Faced with a $627,000 budget cut, MSHA opted to reallocate funds from what it termed low-priority areas to areas of higher priority. Because MSHA, in its own words, “considers effective enforcement a top priority,” the main beneficiary would be the inspectorate should the budget pass as presented. The Coal and Metal/Non-Metal Divisions would get $4.7 million more, and another $3 million could be diverted to support inspections or investigations, if necessary.
Biggest Losers are Training, Compliance Assistance
The biggest loser in the budget squeeze is Educational Policy and Development (EPD). Its budget would shrink by 17 percent or $6.6 million. Within EPD, the biggest chunk of change will be pulled from the popular state grants program, which would see a $5 million reduction, a 60 percent cut. Another $1.5 million and five full-time equivalent (FTE) staff would be taken from the Mine Academy. The Small Mine Office, also popular, would be cut by $303,000 and three FTE.
Besides the sword, another high priority for the agency is the pen. The office that writes the regulations would get a $600,000 boost, all the more to write new rules on coal dust, silica, pattern of violations, civil penalty criteria, legal identity notification, proximity detection and examinations in underground coal mines.
Although Main’s statement that “it’s not all enforcement” may suggest otherwise, MSHA’s budget priorities speak quite clearly about what’s most near and dear to the agency.
I should note that MSHA’s budget proposal carries provisions intended to shift the burden of some mine safety and health activities to operators. Besides reducing federal funds for training and small mines compliance assistance, thereby squeezing operators to fund them instead, MSHA would write a regulation so it could charge a fee for analysis of rock dust samples. This could open the door to fees for laboratory analysis of compliance samples throughout all of mining.
Enforcement Alone Has Drawbacks
No one but the bad guys object to MSHA’s marshaling its enforcement resources to go after chronic violators. But the risk is that the agency might abuse its authority through the choice of whom it puts into that category. After all, impact inspections have been conducted against mine operators whose track record did not warrant them
Because the Mine Act is a strict liability statute, enforcement as a general policy is too one-sided because only mine operators are within its reach. Rank-and-file miners have safety and health responsibilities too, and with those responsibilities should come accountability. In addition, the application of punishment over time is inconsistent. In this country, stringent enforcement usually only lasts as long as the political party that controls the Executive Branch remains in power. When the party is voted out, enforcement tapers off
Finally, the jury is definitely out on whether or not tough enforcement will get us to zero fatalities. Certainly, it has had a positive impact in preventing deaths from discrete hazards ‒ the low-hanging fruit as it were. Thankfully, we are past that now. But even though the industry has endured more and heavier citation paper for the past five years, fatalities seem to be flat-lining at around 35 per year. Will continued reliance on the hammer lower that number? If not, what then MSHA?