March 3, 2011 Celeste Monforton, DrPH, MPH 0Comment

Editors of The (WV) Charleston Gazette had perfect timing. On the morning of a congressional oversight hearing on the Labor Department’s Mine Safety and Health Administration’s (MSHA) performance, their front page featured an article by reporter Ken Ward Jr. about incomplete inspections and inadequate enforcement actions in 2009 in at least 25 of the agency’s field offices. In “Report details MSHA lapses prior to disaster,” Ward describes a previously unpublished letter sent to the Senate Appropriations Committee just two weeks before the Upper Big Branch disaster. The letter summarized findings of an internal agency review (not available to the public) by MSHA’s Office of Accountability of offices with “anomalous enforcement activity or resuts.” (This office was established in November 2007 by former asst. secretary Richard Stickler in response to address scathing critiques of operations and management of two MSHA district offices.)

The March 2010 letter to Senator Harkin about the reviews of these 25 field offices noted, among other things:

*Inspectors in 20 of 25 field offices reviewed did not properly evaluate the gravity and negligence of mine operator safety and health violations.

*Supervisors in 21 of those 25 field offices did not perform in-depth reviews to ensure that inspectors took appropriate enforcement actions in accordance with MSHA policies.

*At an unspecified number of field offices, there was a “lack of comprehensive inspections of all areas of the mining operation” and inappropriate “levels of enforcement issuances.”

One can’t help but wonder—since these reviews were conducted before the Massey Energy’s Upper Big Branch (UBB) mine disaster—which office were subject to the audits? As Ken Ward Jr. notes in a blog post accompanying his article, MSHA is so far keeping secret the audits and even the names of the offices that received them. He calls his post “Is the MSHA accountability office accountable?” Ouch. Were office(s) responsible for inspecting and reviewing activities at the UBB mine one of the 25 offices audited? MSHA knows, but isn’t telling.

The Chairman of the Subcommittee on Workforce Protections, Tim Walberg (R-MI) referred to the Gazette’s front-page story, saying:

“The one thing we know, the strongest laws on the books cannot protect miners if the agency enforcing those laws fails to do so.”

[00:04:00] I suspect he already had that line in his opening remarks, but the front page story in the Gazette punctuated his statement. The Chairman of the full House Education and the Workforce Rep. John Kline (R-MN) admitted he had not known about MSHA’s 2010 letter to the Senate. (Leave it to a small town reporter to help Congress do oversight.)

The letter was mandated by Congress in the agency’s appropriation, and was delivered to Capitol Hill nearly a year ago. The reporter ran into roadblocks trying to obtain it from MSHA—he never did get it from them—-but surely Members of Congress would not run into such problems. None of the Members probed the MSHA chief on why the reviews are posted on the agency’s website, as noted in Ward’s story.

Congressman Kline went a different direction:

“It’s pretty damning, when you look at it. You’ve mentioned that MSHA was using every tool at your disposal, and you’ve asked here now for more legislation to give you more tools, yet it seems looking at this story the failure is not at having the right tools in the toolbox, but in the people using all the tools in the toolbox.”

He proceeded to read from the Gazette’s story and appropriately asked the current MSHA chief, Joe Main:

“Can you give us some indication (A) is this accurate? and (B) what are you doing to address these and what progress have you made?

I think what Mr. Main meant to say was:

“Yes, this audit report was accurate and the $564,000 million cost of conducting these reviews was money well spent. Our auditors identified a number of serious deficiencies in the training, oversight and supervision of our inspectors. Corrective action was commenced and completed to address six of the findings, and progress is being made to address deficiencies that require ongoing oversight. I’m confident we’ve made very good progress correcting the issues identified by our internal review team.”

Unfortunately, the MSHA chief’s answer missed the mark. He lost a big opportunity to demonstrate his command of the agency management. He responded instead this way:

I think the findings represent what the findings were with regard to the audit that was conducted. And I take for face value the conditions that were, or the findings that were described by the audit team, or the findings that existed. I think to understand the perspective of what this means, if you look back at audits within MSHA over the last 10, 20 years, I think you’re going to find problems that are identified. Number one. Secondly, when I became the assistant secretary in October of 2009, one of the things I started looking quickly at was the audits that were being conducted by MSHA.

And another change in the agency that occurred which was the new inspectors that were coming into MSHA. As a matter of fact, the day I took the job, I think we had about half the inspectors that were hired since the Sago disaster, and with the two year training cycle they go through, had about two years of experience under their belt. That was metal-nonmetal and coal averaged out across the board. And you had a number of the new inspectors that were coming on were replacing the supervisors in MSHA.

The assistant secretary continued:

There was a, MSHA’s an aged workforce, and we saw the mining industry losing a lot of experience during that era, from probably early, or the latter part of the early 2000’s through this past decade. There’s a lot of change out in the agency. And one of the things that I realized when I took this job, that we had to do things different. And that was we needed to create training programs that instead of, we keep identifying these kind of problems, to try to figure out a way to fix em. And to take into consideration the fact we had a lot of new supervisors coming into these jobs in the agency, that was a greater reason to do that.

So, about June of last year we implemented a new training program for all MSHA’s supervisors, for coal and metal-nonmetal as a two week training that all supervisors are going through. I think we have about half of the metal-nonmetal inspectors through it, as we speak. We are holding the coal inspectors through until we get through with some Upper Big Branch duties, that we have the ability to cycle those in.

And he went on:

The short message is, I think these problems existed, I think there’s a number of these problems existed over time, and I think we had to put in place, which we have, measures to train these problems out.

The second measure that I initiated was a complete review of the whole MSHA inspection program, the policy and procedures. And I have tasked our folks to look at everything that our inspectors do, to determine whether or not we are following policies, whether or not the policies are clear, and all these internal audits and reviews, and there are quite a number of them if you look over the last 10, 15 years to make sure the systemic problems we are finding that we train into our inspectors as we put them through the cycles and retraining cycles, but what’s happening right now, is there is a crew that is plowing through everything that the inspectors do, to try to get some clarity to the job they do. And to both use these to retrain inspectors but also to improve the consistency in what we do in carrying out our job, cause one of the other concerns that I heard on the first day I was here was the consistency issue, so to tackle of number of these, we just needed to retool our system.

So, hopefully, as we look down the road, the kind of systemic problems we’ve seen from these audits, that last one you spoke of, and back over the years, that we’ve put successfully program in place that we don’t find these kind of problems. [00:22:40]

In an effort to help the MSHA chief focus on the Chairman’s specific questions, Cong. Lynn Woolsey (D-CA), helped him along by asking:

“Mr. Secretary, for the record, yes or no, haven’t these findings in that report and their recommendations, haven’t they all received corrective action that were implemented?”

He responded:

“Yes, they were corrected at the time. Once the audits were conducted to correct that problem…”

The Charleston Gazette reporter continued his oversight of MSHA and the performance of the oversight committee with a follow-up commentary “The partisan politics of coal mine safety.” Ward noted how the Democratic members of the Committee reiterated the need for a bill like the Robert C. Byrd Miner Act from the last Congress, but in the assistant secretary’s 26-page testimony he merely said:

“I am not asking the Committee to take up any particular bill. I understand that this is a new Congress with new leadership.”

Ward questions why none

“…of the Democrats even bothered to ask Joe Main why the administration had decided not to come back to Congress with a request that it pass the Byrd legislation? Are there parts of the bill the administration now doesn’t think are needed? Didn’t this comment from Main warrant some explanation?”

Listening to today’s oversight hearing on MSHA’s enforcement and regulatory activities, and reading the investigations and commentary in the Charleston Gazette, I wonder how congressional oversight might be enhanced if Members of Congress recruited a few dogged reporters. On worker safety, they’d not find anyone more persistent and obsessed with meaningful follow-up than Ken Ward. Even if I couldn’t hire him, I’d sure keep track of what he’s asking and where he’s digging. He’s likely onto something important and relevant about the performance of our worker safety agencies.

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