Dead Miners and Republican Abuse of Power

If you happened to be wandering around Capitol Hill yesterday, you could have received a first-hand, ringside view of Republican disinterest and hostility toward mine safety in this country.

After almost five years, and a record number of coal mine fatalities in the first two months of 2006, Congressman Charlie Norwood (R-GA), the chairman of the House subcommittee on Workforce Protections in the House of Representatives, finally held an MSHA oversight hearing. But apparently not liking what he was hearing, Norwood decided 90 minutes was more than enough time to take from the Representatives' busy schedules to discuss how to keep the nation's coal miners from dying.

Democratic Congressman George Miller called Norwood's action "a spectacularly undemocratic abuse of power."

"So far this year, 21 coal miners have died in the United States," said Miller. "This is a crisis. Yet Republican leaders in Congress were unwilling to devote more than a mere 90 minutes to this issue of life-and-death. Congress has a responsibility to take action to keep more people from dying in preventable mine accidents. The Republicans showed a complete lack of concern and respect for miners and their families by shutting down this hearing before all the facts could come out."

Norwood gaveled the hearing to a close shortly after 1:30 p.m., despite the fact that it was scheduled to run for two hours, from 12:00 p.m. to 2:00 p.m. This was the first oversight hearing on worker health and safety that House Republicans have convened in the last five years. Only Republicans can convene formal committee hearings. Republicans chose three of the four witnesses for today's hearing, while allowing Democrats to choose just one.

Miller essentially embarrassed Norwood into holding the hearing. Last month, Miller and the Democratic members of the committee held a hearing to listen to the voices of coal miners, along with the widows and children of miners killed in recent mine disasters. Actually, it wasn't really a hearing, it was a "forum," because only the subcommittee's majority Republican chairman -- Charlie Norwood -- can call a hearing. Until yesterday, Norwood had refused to hold a hearing on mine safety, stating that he wanted to wait until the investigations of the recent disasters are completed. Norwood's latest insult to the nation's miners comes just a month after acting MSHA director David Dye walked out on a Senate Hearing after Senator Arlen Specter asked him to stay for more questions.

But those who have been in Washington DC for a while aren't too surprised at the Republicans' hostility toward MSHA or the government's role in ensuring mine safety. In fact, it was just over ten years ago that former Congressman Cass Ballenger introduced the so-called Ballenger bill which called for the elimination of the Mine Safety and Health administration, merging it into OSHA which Ballenger's bill would also fatally weaken.

Ballenger's bill would have forced miners to report safety problems to their employer before being able to file a complaint with MSHA, making them vulnerable to firing and blacklisting. It would have reduced the number of mandatory inspections for underground mines from 4 per year to only 1 per year, ended mandatory Federal inspections of surface mines, dropped the prohibition of advance notice of inspections, canceled mine inspectors' right to check out mine workplaces without a warrant, and prevented MSHA inspectors from closing an unsafe mine for uncorrected hazards, extreme operator negligence, or a pattern of violations.

Following the Gingrich revolution in 1994, Ballenger loaded his committee with a group of new Republican congressman who had largely been elected on anti-regulatory platforms. In addition to eliminating MSHA, Ballenger's bill would also have eliminated NIOSH, directed one-third of the OSHA's funds for non-enforcement programs, allowed employers to fix violations before being fined, and dropped fines based on the general duty clause, which is used by OSHA when there is no specific standard.

Ballenger was so pleased with his party’s recent victory and confident of success that he boasted to the press that his committee was so solid that it could probably repeal motherhood if they so desired. What Ballenger ended up with, however, was a political and public relations nightmare.

Every time he held a hearing on his proposals, the hearing room filled early in the morning with miners, dressed in full gear, who had driven all night from the hollows of West Virginia. Miners and other workers held rallies outside and filled reporters’ notebooks with stories of co-workers and family members killed in the workplace. Stories were beamed back to the 6:00 news in hometowns across the nation. A button with a “Wanted” poster displaying Cass Ballenger’s face became the hot item in Washington.

Ballenger's bill never passed, largely due to the mass mobilization of the labor movement. But the Republicans had learned an important lesson: don't use a frontal assault to dismantle worker protection programs. Better to attack enforcement from the inside by shifting the agencies' priorities from enforcement to voluntary, cooperative activities, and weakening the agencies' ability to issue regulations through a series of small bills and other restrictions. The Congressional Review Act, for example, which was passed without hearings, attached to a larger bill in the dead of night, was the vehicle used to repeal OSHA's ergonomics standard in 2001.

Ballenger's bill, including the MSHA proposal, was the brainchild of the right-wing Heritage Foundation which argued that eliminating the agency would improve workplace health and safety by "limiting unnecessary government intervention, and reducing inefficient, wasteful government spending."

But the right-wing's desire to eliminate MSHA is still alive and well. As late as 2002, the conservative, libertarian Cato Institute again proposed the elimination of MSHA, arguing that market mechanisms were a superior incentive for employers to provide safe workplaces. And of the 152 co-sponsors of the Ballenger bill, a number are still around and now in senior positions in the House of Representatives, able to influence any legislation affecting MSHA. For example, Charlie Norwood is now Chairman of the Subcommittee of Workforce Protections of the Committee on Education and Workforce Committee. Dennis Hastert is now Speaker of the House. John Boehner is now the Majority Leader. Buck McKeon is now the Chairman of the Committee on Education and the Workforce. David Dreier is now Chairman of the Committee on Rules, which will control what legislation - and what amendments - can reach the House floor for a vote.

Meanwhile, the effect of the Administration's "cooperative" programs was revealed in a report in today's New York Times:

In its drive to foster a more cooperative relationship with mining companies, the Bush administration has decreased major fines for safety violations since 2001, and in nearly half the cases, it has not collected the fines, according to a data analysis by The New York Times.

Federal records also show that in the last two years the federal mine safety agency has failed to hand over any delinquent cases to the Treasury Department for further collection efforts, as is supposed to occur after 180 days.

With the deaths of 24 miners in accidents in 2006, the enforcement record of the Mine Safety and Health Administration has come under sharp scrutiny, and the agency is likely to face tough questions about its performance at a Senate oversight hearing on Thursday.

"The Bush administration ushered in this desire to develop cooperative ties between regulators and the mining industry," said Tony Oppegard, a top official at the agency in the Clinton administration. "Safety has certainly suffered as a result."

And what excuse did MSHA use for not handing over delinquent cases to Treasure? Computer problems. Hello? For two years? How about driving them over in a car? The Metro. Bike messengers? Hell, you could have walked them over to Treasury.

Despite Administration boasts that it has finally introduced legislation to increase the maximum penalty that MSHA can issue, the Times points out that even with the current maximums, the agency rarely issues fines at the maximum level:

In 2004, the number of major fines issued at maximum level was one in 10, down from one in 5 in 2003.

Since 2001, the median for penalties that exceed $10,000, described as "major fines," has dropped 13 percent, to $21,800 from $25,000.

Also troubling, critics say, is that fines are regularly reduced in negotiations between mine operators and the agency. From 2001 to 2003, more than two-thirds of all major fines were cut from the original amount that the agency proposed. Most of the more recent cases are enmeshed in appeals, so it is impossible to know whether that trend has continued.

"The agency keeps talking about issuing more fines, but it doesn't matter much," said Bruce Dial, a former inspector for the mine safety agency. "The number of citations means nothing when the citations are small, negotiable and most often uncollected."

And, of course, as anyone who's received a stiff traffic ticket will tell you, fines can effectivey change behavior -- but only if they're high enough:

At a House oversight hearing on Wednesday, agency officials repeatedly cited the frequency of fines against Sago in the year before the accident as proof of aggressive enforcement. Exasperated, Representative Lynn Woolsey, Democrat of California, replied that maybe those fines had little effect because many were for $60. That point set off applause from audience members.

"Most fines are so small that they are seen not as deterrents but as the cost of doing business," said Wes Addington, a lawyer with the Appalachian Citizens Law Center in Prestonsburg, Ky., which handles mine safety cases. Using federal records, Mr. Addington released a study in January indicating that since 1995 nearly a third of the active underground mines in Kentucky had failed to pay their fines.

"Operators know that it's cheaper to pay the fine than to fix the problem," Mr. Addington said. "But they also know the cheapest of all routes is to not pay at all. It's pretty galling."

But as we've learned over the past two months, the Bush administration's weakening of OSHA enforcement is only part of the problem. Over the past several years, the Bush administration had stopped work on a regulation that would have revised MSHA's 15-year old mine rescue regulation, killed a proposed regulation that would have helped prevent conveyor belt fires -- the fire that killed the Alma miners -- and adopted a change in mine ventilation rules that experts say allow such fires to spread more rapidly through the mine, cutting off miners' fresh air. MSHA refused to adopt a requirement for Personal Emergency Devices, which allow for constant contact with the miners, even those working in remote areas, and recently proposed to delay implementation for five years of a standard to reduce the risk to underground metal and nonmetal miners of lung cancer from diesel exhaust fumes.

Despite Norwood's resistance to public hearings, Republicans are finding it increasingly difficult to cover up their actions of the last five years. Today's New York Times article appeared on the front page, right hand column, indicating that the issues is not dying down. Every future mine death is guaranteed to generate headlines. What's still needed, however, is for the media and Congress to expand their attention to OSHA. Fifteen workers were killed last year in an explosion at a BP Amoco refinery in Texas, almost 6,000 workers are killed every year in workplace accidents and the numbers are going up, Congress has held virtually no oversight hearings, and Bush's nominee for OSHA director, Ed Foulke, thinks that OSHA's greatest challenge is to get information and tools to small employers.

Although there is now legislation to increase maximum MSHA penalties, there is little indication that the administration and Congress are taking seriously the need to increase OSHA's ineffective fines and penalties against employers who kill: Republicans in Congress are supporting only one piece of legislation that addresses OSHA penalties -- a bill that would fine workers for failing to wear personal protective equipment.

There is still much to be done.

More on mine safety issues here.