By Ross Watzman
Have you been subjected to an increase in Mine Safety and Health Administration (MSHA) inspections? If so, you may not be alone. In recent years, MSHA has increased their inspections and enforcement activities and it appears that the agency is set to continue on the same course.
This belief has only been bolstered by the Obama Administration’s recent budget request for fiscal year (FY) 2016, providing $13.2 billion in discretionary funding for the Department of Labor. According to the administration, this funding level, coupled with new targeted mandatory investments, will help working families reach their full potential in our growing economy and protect their wages, safety, health and retirement security.
Specifically, the budget provides almost $990 million for the Occupational Safety and Health Administration (OSHA) and MSHA to be used toward protecting workers from health and safety hazards on the job. In particular, MSHA is seeking a 5.1% increase in funding, which would raise the agency’s total allocation to $394.9 million from $375.9 million. The majority of this money would go toward strengthening its enforcement functions. The agency wants additional funding to move forward on a regulation governing hazards faced by miners working around mobile equipment in underground mines. In addition, the coal division would receive a $7.9 million boost, with about half of the money going to enforce a new respirable coal dust rule and to conduct off-shift inspections. As indicated in a letter from Assistant Secretary of Labor for Mine Safety and Health Joe Main, “[t]he budget request also contains an increase of $19 million so MSHA can address high-priority matters, which include [among other things]:
• Implementation of the Respirable Dust Rule: $3.1 million in additional funds to support implementation and enforcement of the final Respirable Dust Rule, intended to prevent black lung disease in coal miners. Starting in February 2016, coal mine operators will be required to use a new tool — the Continuous Personal Dust Monitor (CPDM) — to monitor respirable dust levels in underground mines. This additional funding will enable us to purchase CPDMs for use by MSHA inspectors to take samples, verify accuracy and ensure the effectiveness of the operator’s dust control system. MSHA will also expand its dust program to include tracking and analyzing the data generated by these CPDMs.”
Comparatively, MSHA’s Educational Policy and Development group would only get a $4.1 million lift to strengthen training resources for agency employees and the mining industry in general. In a surprise move, MSHA’s budget also includes $8.4 million for the states, an amount the agency sought unsuccessfully to delete in its 2015 budget.
This increasing government oversight is a complete shift back to the enforcement trends seen under the Nixon/Ford and Carter Administrations, wherein, as MSHA’s enforcement budget steadily grew, the number of annual inspections increased dramatically. However, this correlation between an increase in MSHA’s budget and an increase in enforcement does not much make sense considering the current state of the mining industry. For a variety of reasons, the increase in enforcement of federal regulations at coal mines in this country has become increasingly arbitrary and aggressive.
Starting in 2011, the mining industry has seen a significant decrease in the number of coal mines. Specifically, from 2011 to 2014, there was an 18% decrease in the number of coal mines throughout the United States. Despite the substantial decline in the number of mines, MSHA has continually increased the amount of money appropriated to inspecting coal mines. As indicated above, the coal division would receive a 12% increase in funding to aid enforcement activities. However, the justifications for the increase in enforcement money are unclear.
According to the Secretary of Labor’s Independent Panel assessment of an internal review of MSHA enforcement actions at Upper Big Branch Mine South, the quality of the MSHA’s inspectorate is a widespread and growing problem. Given this ongoing problem, and MSHA’s mindfulness that well-trained, experienced and effective MSHA inspectors are, due to the authority they possess, vital to the health of the mining industry, it is unclear why MSHA has not allocated additional money to recruiting and training. Training is necessary for inspectors to properly evaluate dynamic mining conditions, particularly those encountered in underground coal mines.
What should the industry do about this? First, insist on more and better training of all inspectors, both new and experienced. The training MSHA now provides to inspectors hardly seems consistent, uniform or well-received. To take just one example, MSHA’s own data shows that its inspectors improperly classify approximately 20%-30% of violations cited and contested as significant & substantial (S&S).
MSHA requires operators to provide extensive, MSHA-approved training to miners every year, and operators should demand that MSHA likewise provide extensive annual training to its inspectors. An MSHA inspector who does not complete the annual training should not be permitted to inspect. Moreover, MSHA should also make this training open and available to the industry; all the materials MSHA uses to train its inspectors should be available to the public. Higher standards, proper training, and certification will maintain and improve the quality of MSHA’s inspectorate and enhance safety in coal mines.
Given the current state of the industry and the ineffectiveness that enforcement plays in enhancing safety, it is imperative that MSHA find better, more effective ways to allocate funds.
Ross Watzman is an associate in the Denver, Colorado, office of Jackson Lewis P.C., and a member of the firm’s Workplace Safety and Health Practice Group.