Taking inventory

| Published on May 1, 2010

Taking inventory

By Peter Gould


Let us stop for a moment to reflect on where we are and how we arrived. Congress explains its reasons for enacting the Mine Act with an important introductory section entitled “Findings and Purpose.” That section states, in part:

Sec. 2. Congress declares that —

(a) the first priority and concern of all in the . . . mining industry must be the health and safety of its most precious resource — the miner. . .

(g) it is the purpose of this Act (1) to establish interim mandatory health and safety standards and to direct the Secretary of Health, Education, and Welfare and the Secretary of Labor to develop and promulgate improved mandatory health or safety standards to protect the health and safety of the nation’s coal or other miners; (2) to require that each operator of a coal or other mine and every miner in such mine comply with such standards; (3) to cooperate with and provide assistance to, the states in the development and enforcement of effective state coal and other mine health and safety programs; and (4) to improve and expand, in cooperation with the states and the . . . mining industry, research and development and training programs aimed at preventing coal or other mine accidents and occupationally caused diseases in the industry.

Indeed, those stated purposes and goals are praiseworthy. All operators likely would agree that the miner is the industry’s most precious resource, and the well-being of all miners is of paramount importance. In Section 302(a) of the Mine Act, Congress establishes the Mine Safety and Health Administration (MSHA) as follows:

There is established in the Department of Labor a Mine Safety and Health Administration to be headed by an Assistant Secretary of Labor for Mine Safety and Health appointed by the President . . . The Secretary is authorized and directed, except as specifically provided otherwise, to carry out his functions under the [Mine Act] through [MSHA].

It is clear from the above Mine Act language that the creation and enforcement of improved health and safety standards are among MSHA’s mandates from Congress in achieving safe mines, and enforcement is a means to that important end. It is also clear, however, that despite the opinions of many that MSHA is strictly a law enforcement agency, Congress, in its wisdom, intended that enforcement be only one means to achieving safe mines.

For example, Section 2(g)(4) of the Mine Act requires cooperation, research and development, and training programs to prevent mining accidents and occupational illnesses. Sections 501 and 502(c)(3) require that “studies, research, experiments, and demonstrations as may be appropriate” in the field of mine safety shall be conducted, coordinated, and carried out by and among MSHA and other agencies. That section also details the types of work Congress had in mind when it passed the Mine Act.

Section 502 provides that MSHA shall expand training programs for operators and miners in “the recognition, avoidance, and prevention of accidents or unsafe or unhealthful working conditions in” mines and that the Secretary “shall, to the greatest extent possible, provide technical assistance to operators in meeting the requirements of this Act and in further improving the health and safety conditions and practices in coal or other mines.”

Finally, Section 502(c)(1) and (2) establish the National Mine Health and Safety Academy:

For the training of mine safety and health inspectors under section . . . and in training of technical support personnel of the [MSHA]; and for any other training programs for mine inspectors, mining personnel, or other persons as the Secretaries of Labor and Interior shall designate. In performing this function, the academy shall have the authority to enter into cooperative educational and training agreements with educational institutions, state governments, labor organizations, and mine operators and related industries. Such training shall be conducted by the academy in accordance with curriculum needs and assignment of instructional personnel established by the user.

In Section 503, entitled “Assistance to the States,” Congress provides an extensive list of programs and related funding to help states achieve safer mines.

Thus, MSHA is not just an enforcement agency. Rather, Congress intended that enforcement is just one program of many to be carried out by MSHA to protect the health and safety of the mining industry’s most precious resource. A March 30, 2010, report published by the Department of Labor’s Office of the Inspector General found 56 percent of a representative sample of journeyman MSHA inspectors had not completed MSHA’s mandatory retraining during the training cycle for fiscal years 2006-2007, and that MSHA lacked controls to effectively monitor inspector training and enforce training requirements. This presents obvious problems for MSHA’s ability to properly enforce.

Blind, uninformed, and inconsistent enforcement by some poorly trained inspectors does not lead to safer mines. It leads to more bad paper, more contests, and greater burdens on and commitments of resources from the Commissioners, administrative law judges, agencies, and operators who ensure that due process requirements and Congressional intent are fulfilled. Checking high negligence and gravity boxes on a citation to deliberately increase penalties is not the sole recipe for encouraging safer mines. This is not to suggest less enforcement per se, but MSHA, through better enforcement of the Mine Act and its regulations, in harmony with a collaborative and interdisciplinary approach to mine safety and health that brings to bear all types of programs and tools intended, envisioned and granted to MSHA by Congress, will best be able to achieve its mandate and protect the health and safety of its most precious resource — the miner. AM


Peter S. Gould is an associate at Patton Boggs LLP. He may be reached via phone at 303-894-6176 or via e-mail at pgould@pattonboggs.com.

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