Federal mine regulators need stronger laws to protect the nation's underground coal miners, particularly when it comes to protecting whistle blowers and criminally charging operators who deliberately cut corners on safety, the head of the Mine Safety and Health Administration said Thursday.
In testimony to the House Subcommittee on Workforce Protections, MSHA chief Joe Main called for more legislation and a bipartisan effort to save lives, support good operators and hold bad operators accountable.
Main told the chairman, Republican Rep. Tim Walberg of Michigan, he was not recommending any particular legislation. Rather, lawmakers should collaborate to address key areas: better tools for cracking down on companies with patterns of violations, stronger protections for whistle blowers, stiffer criminal penalties and "quick fix" injunctive relief that would let the Department of Labor act decisively against an operator when it identifies an immediate threat.
Even with stronger laws, Main said, criminal charges would likely continue to be rare.
"Now they are rare, however, because the bar for prosecution is too high," he said.
Part of Thursday's hearing focused on a report by The Charleston Gazette that just two weeks before the Upper Big Branch mine explosion that killed 29 men last April, an MSHA Office of Accountability report warned lawmakers about serious enforcement lapses at the agency.
The March 25, 2010, report to the Senate Appropriations Committee said that in the two preceding years, inspectors in 20 of 25 audited field offices failed to properly evaluate the gravity and negligence of the operator's violations, and that supervisors in 21 of those offices failed to ensure inspectors took proper enforcement actions.
The report said internal audits also revealed that officials failed to document inspections well enough to withstand court challenges, and that a handful of inspectors failed to do mandatory spot inspections for mines generating high volumes of methane gas.
That report, however, also said MSHA's audit focused only on field offices where it believed it had problems and was not indicative of a systemic problem at all 92 field offices.
Still, Rep. John Kline, R-Minn., called the report "pretty damning."
"It seems the failure is not in having the right tools in the toolbox," Kline said, but in MSHA employees failing to use those tools.
Main said that when he took over a year ago, he realized change was need and began new training for all field supervisors last June.
"I think these problems existed," he said, "... and we have put in place measures to train these problems out."
He also said he's reviewing the whole inspection process to determine whether employees are following policies, whether those policies are clear, and whether systemic problems are addressed in the new training programs.
Main noted that miners at Massey Energy Co.'s Upper Big Branch operation in southern West Virginia were afraid to speak up about dangerous work conditions. Congress and MSHA must work together to give other miners confidence to speak, he said.
"They are fearful of losing their jobs," he said.
Main said his agency has made many changes to become more aggressive but said to be truly effective, MSHA needs more tools only Congress can provide.
Stronger laws, he argued, would level the playing field so operators who provide safe mine conditions don't have to compete against operators who cut corners on safety.
Rep. George Miller, D-Calif., urged his colleagues to stop empowering "rogue operators" who manipulate the system. He complained that Congress seems to act only when miners die.
By appealing violations to the courts and preventing them from being recognized as part of a potential pattern of violations, Miller said, a few bad operators have created a backlog of tens of thousands of unresolved cases.
"I think we should change the statute so you don't have to work in a bad system," Miller told Main. "...This should not be a hard decision for the Congress."
Rep. Woolsey, D-Calif., said lawmakers ignore Main's pleas "at the peril of America's miners."
But the National Mining Association disagreed, saying MSHA already has the authority "to shut down egregiously bad operators and should use that authority when justified."
"We agree the backlog of contested fines is too large and the process for reducing it should be more efficient," said spokesman Luke Popovich. "And we're pleased that they are addressing the inconsistencies in citations that lead to confusion and frustration, not safer mines.
"But MSHA has the remedies in hand," he said. "None of this requires new legislative authority, only the will to use the authority they have."