By James Sharpe
The Mine Safety and Health Administration (MSHA) has been spreading the word that compliance at mines has improved because enforcement statistics dropped significantly between 2010 and 2011.
Few challenge MSHA’s contention that compliance has taken a turn for the better at mines undergoing impact inspections and potential pattern of violation (PPOV) scrutiny. At a mine safety seminar in June, MSHA chief Joe Main noted that, at impact inspected mines, violations per inspection hour went down 13 percent after mines received an initial impact inspection; significant & substantial (S&S) violation rates dropped 21 percent; and 104(d) orders, 43 percent.
As for PPOV, Main pointed out that the number of PPOV mines declined to eight in 2011 from 17 in 2010. At 14 operations that received initial PPOV notices in 2010, the total violation rate declined 25 percent; the S&S violation rate, 44 percent; and the rate of 104(d) orders, 66 percent. Clearly, heightened agency attention at these mines has had a positive effect.
MSHA also cites its Rules to Live By (RTLB) program as helping encourage better compliance. The focus of the program is on specific priority standards, and it has probably propelled operators to be especially careful not to violate them. After all, if a section of a highway is well known as a speed trap, drivers will slow down there. The analogy holds true for mine operators and the RTLB program, too.
MSHA also claims citations are down 40 percent following agency release of a PowerPoint presentation in June 2010 on guarding. That could be due to improved compliance, but also surely has brought about improved consistency among inspectors as well, hence fewer citations.
The agency also makes the same claim about improved compliance in talking about the mining industry as a whole. Here are the figures Main cited: MSHA inspected about 14,170 mines in 2011 and issued 157,678 citations and orders (C/Os). In contrast, MSHA issued 171,018 C/Os in 2010. The breakdown in 2011 by sector was: coal, 93,645 C/Os, down from 96,848 in 2010; and metal/nonmetal, 64,033 C/Os, down from 74,170 the previous year.
MSHA issued 49,582 S&S and 2,920 unwarrantable failure C/Os in 2011, compared to 56,502 S&S and 3,370 unwarrantable failures the previous year, Main said. The overall decline in C/Os, S&S citations and unwarrantable failure orders came to about 9 percent, he reported.
We have asked the agency repeatedly ‒ without success ‒ to back up its assertion these numbers mean industry compliance is on an upswing. We also polled a dozen stakeholders, who were quick to suggest other variables; namely, a greater focus on hazards, not frivolities; fewer inspections because there are fewer mines; a lighter enforcement hand, because showing better compliance serves MSHA’s political and public relations agenda that tough enforcement works; and heightened congressional pressure. However, Main dismissed the claim there are fewer mines by saying that, in the mining industry overall, the number of mines declined less than 1 percent between 2010 and 2011.
As for heat from Congress, the agency has received numerous requests from lawmakers on behalf of mining constituents complaining about unfair and excessive enforcement. Last year, word came that Sen. John Thune (R-S.D.) had succeeded in convincing the Department of Labor’s Inspector General to launch an investigation. However, recently it was learned the effort has reportedly been put off because of MSHA’s claim that enforcement numbers are looking better.
In contrast to the improved enforcement numbers, other data trend in the opposite direction. For instance, last year the agency meted out $152.4 million in assessments, a big jump from $133.7 million in 2010. C/Os may be down, but fines are what bring operators the most pain.
In addition, MSHA inspectors are writing more elevated enforcement actions, according to Josh Savit of Predictive Compliance, a firm with software that measures MSHA compliance in real time. Elevated enforcement actions refer collectively to alleged violations involving failure to abate, failure to train, aggravated conduct beyond ordinary negligence, imminent danger and pattern of violations. How can compliance be improving if fines and elevated enforcement actions are up?
Certainly, improved compliance is desirable. It should lead to safer mines and free the operator to use money saved from reduced financial penalties for productive purposes. But we do not believe the agency has made its case. It would certainly be in the public interest if it did. Until then, we remain skeptical.