Fines going up won't necessarily bring accidents, fatalities down
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As the federal Mine Safety and Health Administration prepares to raise fines for safety violations in the nation's mines, a look at three accidents that focused national attention on mine safety suggests fines alone might not make a difference.
The mines -- Sago, in Upshur County, W.Va., where 12 men died after a methane blast; Aracoma Alma 1 in Logan County, W.Va., where a belt fire killed two; and Darby, in Harlan County, Ky., where five men died in a methane explosion -- underscore the complexity of mine safety and how to enforce it.
Each, in its own way, illustrates a key underlying weakness: Steep civil penalties that punish mine owners rather than prevent injuries and death, enforcement that is inadequate and uneven, and the ability of mine operators to delay and reduce fines.
In the five years before two miners died at Aracoma in January, the annual number of "significant and substantial" citations issued by federal mine inspectors there fell from 132 to 46, including just 15 in 2003.
This happened even as Aracoma's work force increased and its coal production doubled. Since the miners' deaths, however, MSHA inspectors have cited Aracoma for more than 250 significant and substantial violations, in effect, an admission that not all violations had been detected and cited.
Darby Mine received three citations for "accumulation of combustible materials" in the week before the May 20 explosion that led to the death of five miners. The proposed fine for each one is $60. Since then, Darby has been cited for 32 significant and substantial violations, compared with 23 for all of last year.
Sago Mine was cited time and again for safety problems but was allowed to keep operating. Federal mine officials had scheduled a meeting with Sago's operators, but then a methane explosion left 12 dead. Company officials have said none of the violations contributed to the explosion.
Inadequacy of fines
"It's not enough just to set high fines. Those fines need to be vigorously imposed when mine operators break the law," said Rep. George Miller, D-Calif., senior Democrat on the House Education and the Workforce Committee. "The fines need to be maintained after appeal, and they must not be allowed to go uncollected. High dollar fines won't discourage scofflaw operators from breaking the law if they know that fines are never going to be collected."
Many who have inspected underground mines agree.
"I just don't think fines are the total answer," said Francis E. "Shorty" Wehr Sr., a retired federal mine inspector and former mine inspectors union local president.
"The money is nothing" to large coal operators, he said. "If you really want to cut back on the violations, shut the mine down until you get it fixed."
This week, MSHA holds the first of six public hearings on its proposal for assessing higher fines on mine operators who violate safety regulations. The final hearing will be Oct. 19 in Pittsburgh, while others are scheduled for North Birmingham, Ala.; Salt Lake City; St. Louis; and Charleston, W.Va.
According to MSHA, the substantial increase in fees, with the maximum fine climbing from $60,000 to $220,000, is "intended to induce greater mine operator compliance" with safety regulations.
Increasing fines is one component of the enforcement strategy, said Jay Mattos, MSHA's acting director for the Office of Assessments, who chaired the committee for the new civil penalty procedures. But when the committee convened in February, he said, there was general agreement that raising fines was necessary.
In addition to the $220,000 maximum for flagrant violations, the proposal establishes a minimum $2,000 penalty for unwarrantable failure violations and a $4,000 minimum fine for repeat offenders.
By far, the most commonly issued citation is for accumulation of combustible materials. Unless it's considered an "unwarrantable failure" or worse, though, federal law allows the operator a "reasonable" amount of time to fix the problem.
But "if you give them 24 hours to abate, they're going to run coal for 24 hours" before fixing it, Mr. Wehr said. Rather than fearing fines, he said, some coal operators view them as a cost of doing business and "they write it off at the end of the year."
Even if they get hit with a big fine, they can appeal the assessment for months.
For example, MSHA's Web site shows that Consol Energy's McElroy Mine in Marshall County, W.Va. hasn't paid any of its 140-plus fines above the minimum $60 the past 12 months. The outstanding citations include 107 fines of $723 each and 26 fines of $963 each for problems such as roof control violations or poor maintenance of electrical equipment.
Also under appeal by McElroy are single fines of $6,900, $6,600, $6,300 and $5,300, the largest of which cite unsafe accumulations of combustible material.
Joe Pavlovich, a retired federal mine agency district manager based in Kentucky, said the appeals process was an important right for mine operators. "But I am skeptical when somebody contests every single one," he said. "You can't believe you're right on all of those."
Ultimately, those fines might be reduced by the assessment office, an administrative judge or the review commission and "it seems the longer [mine operators] drag it out, it seems to get reduced more and more," Mr. Wehr said.
"If you want to manipulate the system, there's a lot of ways to get out of paying," Mr. Pavlovich said. He cited one example: "If you're in a short-term mining operation and you delay it long enough, you can just close the mine and move somewhere else."
Another issue, Mr. Wehr said, is inconsistency.
While all mines operate under the same federal law, enforcement can vary widely among the 11 regional districts. That's because of the strong influence of the individual district manager in enforcing regulations, he said.
After 13 miners died in a Brookville, Ala., mine in September 2001, an internal MSHA review found that inspectors "did not recognize and cite several violations" and failed to document any examination of preshift and on-shift records or electrical inspections.
While not blaming those lapses for the fatal explosion, the MSHA report concluded, "District 11 supervisors and managers did not provide adequate oversight and guidance" during inspections of the Jim Walter Resources mine.
Mr. Wehr said inspectors tended to follow the lead of their district manager. "The inspector will think, 'Why should I write a serious citation when they're just going to knock it down?' "
Mr. Mattos said there was an inherent element of subjectivity in issuing citations and assessing fines.
"We issue 130,000 citations, and each one is evaluated on its own merits. The penalties are a reflection of the evaluation of the citation."
Mr. Mattos said automatic fine increases in MSHA's new proposal should reduce some of that subjectivity.
"One thing that is much more important than the penalties are the withdrawal orders that pull miners out of a mine," effectively shutting down that portion of the mine. According to MSHA statistics, the agency issued 1,608 withdrawal orders in 2002, with increasing numbers each year since. As of Sept. 15, MSHA has issued 2,269 withdrawal orders this year.
"That alone can be a pretty hefty deterrent," Mr. Mattos said.
First Published September 24, 2006 12:00 am