Sunday, August 13, 2006

MSHA Resists "Once In A Lifetime" Chance To Fix Totally Dysfunctional Penalty System

All is not well inside the Mine Safety and Health Administration.

In June the Congress passed the Mine Improvement and New Emergency Response, or MINER, Act, which significantly raised minimum fines for mine safety violations. The increased penalties were in response to findings that the Sago mine, where 12 miners died last January, had been cited 208 times and fined more than $24,000 last year for various violations, many of which were serious. The Mine Safety and Health Administration (MSHA) is currently in the process of writing regulations describing which violations receive the highest fines, and under what circumstances reductions in the penalties will be made.

But not everyone is happy with the first draft of MSHA's proposal. One critic wrote that
the formula is not tough enough to deter violations, and that some operators still may decide it costs less to pay fines than to develop comprehensive safety programs to prevent accidents.
and that:
"Given the opportunity to write a new regulation that can truly serve as a deterrent for the lack of compliance and put the industry on notice that it is too expensive to allow MSHA to be a safety department, we may have missed the target," the memorandum states.
and finally,
citing concerns that "root causes of violations and accidents are likely to go uncorrected and are destined to be repeated."

"We believe the overall system has to recognize noncompliance for what it is, a path that leads to injury and, eventually, disaster."
The memo criticizing MSHA's regulation, obtained by the Pittsburgh Post Gazette, is not surprising.

The author, however, is surprising. This memo was written by the office of Ray McKinney, MSHA's administrator of Coal Mine Safety and Health. McKinney's office further argued that:
"Currently, it is cheaper for mines to fix what MSHA finds than to invest in a safety management system," the memorandum reads.

"This is [a] once-in-a-lifetime opportunity to make a difference in mine safety and health. Let's not let it slip by without making a difference."
McKinney's arguments were challenged by Jay Mattos, acting director for MSHA's Office of Assessments.
"The proposed rule will increase penalties by 226 percent for coal operators and 108 percent for metal and nonmetal operators. How much of an additional increase does Coal [Mr. McKinney's office] now believe is appropriate?"

Mr. McKinney argued that, "Although one can look at a substantial increase in fines over the old system, it must be taken into consideration that the old system was totally dysfunctional."

He also said insufficient fines were unfair to mine operators who make safety a top priority.

"To provide a level playing field for operators who wish to invest in a professional safety management system, the bar will have to be raised to more than offset this cost."
McKinney will leave his administrator's position at the end of August to become an MSHA district manager in Virginia.

It will be interesting to follow how, or if, MSHA manages to construct its penalty structure to presents a real deterrent to mine owners tolerating unsafe working conditions -- particularly large companies. And MSHA, of course, isn't the only agency whose fines are so low that it may be more profitable for some companies to pay the fine than to clean up the workplace. OSHA has the same problem. Even its record $21.3 million fine against BP last year for conditions leading to an explosion that killed 15 workers and injured 170 last year amounts to only a few hours of BP's annual profit.

More mine safety stories here.