    Mine Safety: Better Oversight and Coordination by MSHA and Other
    Federal Agencies Could Improve Safety for Underground Coal Miners
    (16-MAY-07, GAO-07-622).

    The Mine Safety and Health Administration (MSHA), the National
    Institute for Occupational Safety and Health (NIOSH), the Federal
    Mine Safety and Health Review Commission, the Department of
    Labor's Office of the Solicitor, the states, and the mining
    industry share responsibility for ensuring mine safety. GAO
    examined the challenges underground coal mines face in preparing
    for emergencies, how well MSHA oversees mine operators' training
    efforts, how well MSHA and NIOSH coordinate to enhance the
    development and approval of mine safety technology, and how civil
    penalties are assessed. To address these issues, GAO surveyed a
    representative sample of active underground coal mines, analyzed
    agency data, conducted site visits, and talked with agency
    officials and other experts. The survey results are estimated at
    the 95 percent confidence level.
    -------------------------Indexing Terms-------------------------
    REPORTNUM:   GAO-07-622
        ACCNO:   A69695
      TITLE:     Mine Safety: Better Oversight and Coordination by MSHA
    and Other Federal Agencies Could Improve Safety for Underground
    Coal Miners
         DATE:   05/16/2007
      SUBJECT:   Agency evaluation
    	     Coal mining
    	     Emergency preparedness
    	     Employee training
    	     Fines (penalties)
    	     Interagency relations
    	     Mine safety
    	     Mining
    	     Mining industry
    	     Monitoring
    	     Occupational safety
    	     Safety regulation
    	     Safety standards
    	     Surveys
    	     Program coordination

    ******************************************************************
    ** This file contains an ASCII representation of the text of a  **
    ** GAO Product.                                                 **
    **                                                              **
    ** No attempt has been made to display graphic images, although **
    ** figure captions are reproduced.  Tables are included, but    **
    ** may not resemble those in the printed version.               **
    **                                                              **
    ** Please see the PDF (Portable Document Format) file, when     **
    ** available, for a complete electronic file of the printed     **
    ** document's contents.                                         **
    **                                                              **
    ******************************************************************
    GAO-07-622

         * [1]Results in Brief
         * [2]Background
         * [3]Underground Coal Mines Face Challenges in Preparing Mine Wor

              * [4]Emergency Preparedness Training of Miners Is Limited by Few
              * [5]Mine Operators Face Challenges Funding and Training Rescue T

         * [6]MSHA Reviews Mines' Training Plans and Inspects Training Rec
         * [7]MSHA and NIOSH Lack a Formal Agreement to Guide Mine Safety

              * [8]Despite Complementary Roles, Coordination between MSHA and N
              * [9]Informal Coordination May Be Insufficient Given Impending Re

         * [10]Most Penalties Assessed by MSHA Are Paid without Opposition,

              * [11]MSHA Uses a Standard Formula to Calculate Penalties, and Rec
              * [12]Many Contested Penalties Are Reduced Substantially Regardles
              * [13]Entities Involved in the Appeals Process Apply the Statutory

         * [14]Conclusions
         * [15]Recommendations for Executive Action
         * [16]Agency Comments
         * [17]Survey of Underground Coal Mines

              * [18]Study Population and Sampling Design
              * [19]Survey Development
              * [20]Administration of the Survey
              * [21]Nonsampling Error and Data Quality
              * [22]Estimates
              * [23]Sampling Errors

         * [24]Citation and Penalty Data
         * [25]GAO Contact
         * [26]Staff Acknowledgments
         * [27]GAO's Mission
         * [28]Obtaining Copies of GAO Reports and Testimony

              * [29]Order by Mail or Phone

         * [30]To Report Fraud, Waste, and Abuse in Federal Programs
         * [31]Congressional Relations
         * [32]Public Affairs

    Report to Congressional Requesters

    United States Government Accountability Office

    GAO

    May 2007

    MINE SAFETY

    Better Oversight and Coordination by MSHA and Other Federal Agencies Could
    Improve Safety for Underground Coal Miners

    GAO-07-622

    Contents

    Letter 1

    Results in Brief 3
    Background 6
    Underground Coal Mines Face Challenges in Preparing Mine Workers and
    Rescue Teams for Emergencies 12
    MSHA Reviews Mines' Training Plans and Inspects Training Records but Does
    Not Adequately Monitor Instructors or Training 21
    MSHA and NIOSH Lack a Formal Agreement to Guide Mine Safety Coordination
    23
    Most Penalties Assessed by MSHA Are Paid without Opposition, but Many of
    Those Appealed Are Reduced Substantially 32
    Conclusions 40
    Recommendations for Executive Action 41
    Agency Comments 42
    Appendix I Scope and Methodology 47
    Survey of Underground Coal Mines 47
    Citation and Penalty Data 50
    Appendix II Survey of Underground Coal Mines 51
    Appendix III Comments from the Department of Labor 71
    Appendix IV Comments from the Department of Health & Human Services 77
    Appendix V Comments from the Federal Mine Safety and Health Review
    Commission 78
    Appendix VI GAO Contact and Acknowledgments 81

    Tables

    Table 1: MSHA's and NIOSH's Complementary Roles 25
    Table 2: Key Practices for Effective Coordination 27
    Table 3: Proportion of MSHA Engineers and Scientists Eligible for
    Retirement over the Next 10 Years, as of March 2007 31
    Table 4: Average Proposed Penalty by Gravity and Negligence Indicators,
    1996 to 2006 34
    Table 5: Example of How a Proposed Penalty Amount Could Be Determined
    Based on the Previous and Revised Standard Penalty Formulas 36
    Table 6: Contested Penalty Reductions by Gravity and Negligence
    Indicators, 1996 to 2006 38
    Table 7: Sample Disposition for Survey of Underground Coal Mines 48

    Figures

    Figure 1: Penalty Assessment Process for Mine Operators That Are Cited for
    Violating Safety and Health Standards 11
    Figure 2: Estimated Extent of Training Conducted with Breathing Devices at
    Mines in 2006 13
    Figure 3: Mines' Assessment of Challenges in Preparing Workers for Mine
    Emergencies 15
    Figure 4: Mines' Assessment of Rescue Team Challenges in Preparing for
    Mine Emergencies 18

    Abbreviations

    ALJ administrative law judge
    APA Administrative Procedures Act
    CLR conference litigation representative
    ETS Emergency Temporary Standard
    MINER Act Mine Improvement and New Emergency Response Act of 2006
    MSHA Mine Safety and Health Administration
    MSIS MSHA Standardized Information System
    NIOSH National Institute for Occupational Safety and Health
    SCSR self-contained self-rescuer

    This is a work of the U.S. government and is not subject to copyright
    protection in the United States. It may be reproduced and distributed in
    its entirety without further permission from GAO. However, because this
    work may contain copyrighted images or other material, permission from the
    copyright holder may be necessary if you wish to reproduce this material
    separately.

    United States Government Accountability Office
    Washington, DC 20548

    May 16, 2007
    Congressional Requesters

    In January 2006, the Sago mine accident in West Virginia brought the
    nation's attention to the perils workers face in underground coal mining
    when 12 men lost their lives after an explosion prompted them to barricade
    themselves in the mine to await rescue--an effort that took close to 2
    days to complete. In total, 47 coal miners lost their lives in 2006,
    interrupting a 10-year trend of declining fatalities in this industry.
    Coal, which is used to produce almost 50 percent of the nation's
    electricity, is becoming more and more important to the nation's energy
    policy as the demand for electricity increases. Mining productivity is at
    an all-time high--averaging more than 6 tons per coal miner per hour, or
    more than 48 tons in an 8-hour day. As production increases, safety and
    the oversight of mines' working conditions assume even greater
    significance than before. In January 2006, the Sago mine accident in West
    Virginia brought the nation's attention to the perils workers face in
    underground coal mining when 12 men lost their lives after an explosion
    prompted them to barricade themselves in the mine to await rescue--an
    effort that took close to 2 days to complete. In total, 47 coal miners
    lost their lives in 2006, interrupting a 10-year trend of declining
    fatalities in this industry. Coal, which is used to produce almost 50
    percent of the nation's electricity, is becoming more and more important
    to the nation's energy policy as the demand for electricity increases.
    Mining productivity is at an all-time high--averaging more than 6 tons per
    coal miner per hour, or more than 48 tons in an 8-hour day. As production
    increases, safety and the oversight of mines' working conditions assume
    even greater significance than before.

    Through the Department of Labor's (Labor) Mine Safety and Health
    Administration (MSHA), the federal government enforces the provisions of
    the Federal Mine Safety and Health Act of 1977, as amended (Mine Act) and
    the recently enacted requirements of the Mine Improvement and New
    Emergency Response Act of 2006 (MINER Act). Under these laws, MSHA is
    responsible for approving training programs for mine workers; promulgating
    regulations regarding training requirements for rescue teams; approving
    certain technology devices used underground; and inspecting underground
    coal mines at least four times each year, which can result in citations
    and penalties for safety and health violations. The Department of Health
    and Human Services' National Institute for Occupational Safety and
    Health's (NIOSH) Office of Mine Safety and Health shares some
    responsibilities for improving mine safety. It identifies the causes of
    work-related diseases and injuries; researches, develops, and tests new
    technologies and equipment designed to enhance mine safety and health; and
    recommends safety and health standards. In addition, many states maintain
    mine safety agencies that conduct inspections and require mines to adhere
    to state safety and health laws and regulations. Finally, mine operators
    maintain responsibility for implementing safety and health standards to
    ensure that their workers are working under safe conditions on a daily
    basis. In response to concerns about the safety of underground coal mines,
    spawned by the recent increase in fatal mine accidents, you asked us to
    review several aspects of mine safety oversight. Through the Department of
    Labor's (Labor) Mine Safety and Health Administration (MSHA), the federal
    government enforces the provisions of the Federal Mine Safety and Health
    Act of 1977, as amended (Mine Act) and the recently enacted requirements
    of the Mine Improvement and New Emergency Response Act of 2006 (MINER
    Act). Under these laws, MSHA is responsible for approving training
    programs for mine workers; promulgating regulations regarding training
    requirements for rescue teams; approving certain technology devices used
    underground; and inspecting underground coal mines at least four times
    each year, which can result in citations and penalties for safety and
    health violations. The Department of Health and Human Services' National
    Institute for Occupational Safety and Health's (NIOSH) Office of Mine
    Safety and Health shares some responsibilities for improving mine safety.
    It identifies the causes of work-related diseases and injuries;
    researches, develops, and tests new technologies and equipment designed to
    enhance mine safety and health; and recommends safety and health
    standards. In addition, many states maintain mine safety agencies that
    conduct inspections and require mines to adhere to state safety and health
    laws and regulations. Finally, mine operators maintain responsibility for
    implementing safety and health standards to ensure that their workers are
    working under safe conditions on a daily basis. In response to concerns
    about the safety of underground coal mines, spawned by the recent increase
    in fatal mine accidents, you asked us to review several aspects of mine
    safety oversight. We examined (1) the challenges underground coal mines
    face in preparing for mine emergencies, (2) how well MSHA oversees mine
    operators' training efforts, (3) how well MSHA and NIOSH coordinate their
    efforts to enhance the development and approval of mine safety technology,
    and (4) how civil penalties are assessed when underground coal mine
    operators violate safety and health standards.

    To conduct our work, we reviewed relevant laws and regulations that govern
    MSHA, the Federal Mine Safety and Health Review Commission, and NIOSH, as
    they applied to our research. In addition, we reviewed relevant decisions
    issued by the Commission and its administrative law judges. We consulted
    with outside experts, including industry associations, union
    representatives, mine company officials, academics, a technology
    manufacturer, and other stakeholders to obtain their views on each topic.
    We also surveyed a sample of active underground coal mines regarding the
    current state of mines' operations and the challenges they face in
    preparing for and responding to mine emergencies. We sent questionnaires
    to a stratified random sample of 342 of the 665 active underground coal
    mines. Our sample size was reduced because of mine closures; therefore,
    survey estimates are representative of only those mines open for the
    entire period. Ultimately, 146 mines completed questionnaires for a
    response rate of 69 percent. Our confidence in the precision of the
    results from the sample is expressed in 95 percent confidence intervals.
    As a result, we are 95 percent confident that each of the confidence
    intervals in this report will include the true values in the in-scope
    population. All percentage estimates for our sample have margins of
    error--widths of confidence intervals--of plus or minus 8 percentage
    points or less, at the 95 percent confidence level.

    In addition, we analyzed quantitative data from MSHA on citations and
    penalty amounts for penalties assessed from January 1996 through October
    2006. The data provided by MSHA were assessed and found sufficiently
    reliable for our purposes. We also visited three underground coal mines,
    spoke with MSHA officials in 6 of its 11 coal mine districts, and
    interviewed state mine agency officials in the four states that contain
    almost 90 percent of all underground coal mines in the United
    States--Kentucky, Pennsylvania, Virginia, and West Virginia. Finally, we
    attended a mine rescue competition to observe training exercises and
    interview rescue team members, and visited field locations where MSHA and
    NIOSH conduct their research and interviewed the officials responsible for
    these activities. We completed our work between June 2006 and March 2007
    in accordance with generally accepted government auditing standards. For
    an additional discussion of the scope of our work and the methods used to
    conduct it, see appendix I.

    Results in Brief

    Underground coal mine operators face significant challenges preparing for
    emergencies, including ensuring that miners receive realistic training and
    organizing mine rescue teams that satisfy new requirements. Mine operators
    recognized the importance of providing emergency training in a simulated
    environment. However, on the basis of our survey results, an estimate of
    81 percent of mine operators considered the availability of special
    training facilities for providing such training as a challenge, and 70
    percent considered the costs of providing simulated training as a
    challenge. While MSHA has some materials for providing hands-on training,
    such as guides on practicing donning and transferring emergency breathing
    devices, it does not provide all mine operators with information and tools
    for training under simulated emergency conditions. Our survey results also
    indicate that an estimate of 77 percent of mines conducted evacuation
    drills in 2006 in which miners practiced donning breathing devices, which
    were part of MSHA's emergency temporary standards implemented in March
    2006. However, an estimate of 44 percent of mines that conducted these
    drills did not have their miners practice inserting the device's
    mouthpiece. Initially, MSHA permitted miners to simulate this activity.
    However, final rules issued in December 2006 require miners to insert the
    mouthpiece. In addition to the challenges of providing miners with
    realistic training, mine operators reported that they anticipated
    challenges in implementing the new mine rescue team requirements of the
    MINER Act. For example, depending on how MSHA defines the requirement for
    rescue teams to train at least annually at every mine they serve, some
    states that currently provide mine rescue services reported that they may
    choose to stop providing these services because of resource constraints.
    As a result, affected mine operators will then have to identify and train
    new rescue teams. To help mines train their workers under simulated
    emergency conditions, we recommend that the Secretary of Labor direct MSHA
    to publicize information and available tools for training mine workers
    under such conditions. In addition, MSHA should periodically review and
    update this information, as appropriate.

    MSHA approves mine operators' training plans and inspects their training
    records, but its oversight of miner training is hampered by several
    factors, including (1) inconsistent instructor approval standards, (2)
    inaccuracies in its database that maintains information on all
    instructors, (3) the lack of continuing education requirements for
    instructors once they are approved, and (4) limited agency monitoring of
    training sessions. MSHA has general guidelines for items to be considered
    when approving new instructors, but allows districts to determine an
    instructor's qualifications in different ways. For example, MSHA requires
    that applicants prove their experience in one of three ways, and the
    districts have the discretion to grant provisional approval until the
    instructor is designated otherwise, but this approach is not consistent
    across districts. MSHA also does not have continuing education
    requirements for instructors. In addition, MSHA does not have current
    information on its approved instructors and does not ensure that they keep
    their knowledge and skills up to date. Further, MSHA does not adequately
    monitor instructors or evaluate training sessions, and does not assess how
    well miners are learning the skills being taught. To help ensure that mine
    workers are adequately prepared for emergencies, we recommend that the
    Secretary of Labor direct MSHA to strengthen its monitoring of training.
    This monitoring should include

               o reviewing and standardizing districts' procedures for approving
               new instructors;
               o establishing continuing education requirements for instructors
               to help instructors maintain or improve their knowledge and
               skills;
               o improving the data in its records on approved instructors; and
               o developing a process for monitoring miner training that includes
               regularly evaluating training sessions, assessing how well
               learning objectives are being met, and providing feedback to
               instructors.

    Coordination between MSHA and NIOSH is primarily informal and
    inconsistent, and such coordination may not be sufficient given the
    pending retirements and other challenges both agencies face. Despite their
    complementary roles, MSHA and NIOSH lack a current memorandum of
    understanding or other formal policy to guide their agencywide
    coordination efforts. In addition, they do not regularly involve each
    other in their strategic planning efforts, including planning for
    research. As a result, officials told us that coordination has primarily
    been at the initiative of some individuals at both agencies and, as such,
    has not always been consistent. MSHA and NIOSH have worked together on
    temporary projects, such as developing a new device to monitor the amount
    of coal dust and other irritants to which miners are exposed, but these
    efforts have been temporary, limited to specific issues, and not part of
    either agency's standard operating procedures. Given the challenges the
    two agencies face, coordination based on working relationships developed
    between individual staff or temporary projects may not be sufficient. For
    example, many engineers and scientists at MSHA and NIOSH will be eligible
    to retire in the coming years, and informal coordination efforts may not
    continue after they leave. To improve the effectiveness of information
    sharing between MSHA and NIOSH, we recommend that the Secretaries of Labor
    and Health and Human Services direct their respective agencies to work
    together to establish a formal memorandum of understanding to guide their
    coordination. In addition, the agencies should periodically review and
    update the memorandum, as appropriate.

    While most of the penalties proposed by MSHA are paid by mine operators
    without opposition, a small percentage of the cases involving more serious
    and higher-dollar penalties are appealed, and many of those appealed are
    reduced significantly. MSHA proposes penalties using a standard formula
    established in its regulations designed to assess higher penalties for
    more serious violations. Recently, MSHA finalized revisions to its
    standard formula and expects these changes to more than double the amount
    of all proposed penalties. Between 1996 and 2006, MSHA proposed assessing
    mine operators 506,707 penalties for violations of underground coal mine
    safety and health standards--at an average penalty amount of $234 per
    violation. While mine operators pay most penalties without opposition they
    appealed about 6 percent of all penalties assessed by MSHA. Of those
    appealed, about half of the penalties were reduced by an average of 49
    percent, regardless of the gravity of the violation and the degree of the
    operator's negligence. The entities involved in the appeals process--the
    Department of Labor's Office of the Solicitor (Solicitor's Office), MSHA's
    conference litigation representatives (CLR), and administrative law judges
    (ALJ) with the independent Federal Mine Safety and Health Review
    Commission--are required by law to apply the six statutory factors
    specified in the Mine Act. However, they are not legally obligated to use
    any particular method to determine a new penalty amount when they
    determine that a reduction from MSHA's proposed penalty is appropriate. As
    a result, they have considerable discretion in deciding on the final
    penalty amount. The recent penalty increases implemented by MSHA increase
    the likelihood that more penalties will be appealed. In order to ensure
    that there is transparency in penalty determinations, we recommend that
    the Solicitor's Office, MSHA, and the Commission take steps to ensure that
    the specific rationale for all final penalty amounts, including reductions
    from MSHA's proposed penalties, are adequately documented.

    We obtained comments on a draft of this report from MSHA, Labor's Office
    of the Solicitor, NIOSH, and the Commission. Each entity agreed with the
    recommendations. MSHA provided additional information about actions the
    agency has either begun or plans to take in response to the
    recommendations. For example, MSHA stated it will develop a Web page
    dedicated to providing information on available training resources and
    will issue an information bulletin to mine operators about this Web-based
    resource. In addition, the agency provided information on its plans for
    improving oversight of miner training, including exploring the option of
    establishing continuing education requirements for approved instructors.
    However, the agency noted that this requirement may necessitate a
    regulatory change before it can be finalized. Both MSHA and NIOSH
    supported developing a memorandum of understanding to better guide their
    coordination efforts. MSHA, the Office of the Solicitor, and the
    Commission agreed with the need for transparency in the appeals process
    that includes specifying the rationale for each penalty reduction.

    Background

    Coal mining remains one of the nation's most dangerous professions. The
    deadly explosion at the Sago mine in West Virginia brought national
    attention to the many hazards facing underground coal miners. In response,
    Congress enacted the MINER Act of 2006, which required mine operators and
    MSHA to undertake a variety of reforms, including enhancing mine rescue
    teams, developing up-to-date accident response plans, and instituting
    higher penalties--including a criminal penalty--for the most serious
    violations.^1 In March 2006, MSHA also issued an Emergency Temporary
    Standard (ETS) ^2 aimed at instituting immediate health and safety
    improvements.^3 Among other requirements, these standards required
    operators to provide safety training on the mine's evacuation routes and
    provide opportunities to learn how to react in certain kinds of simulated
    emergency situations, install lifelines along mine escape routes, and
    store supplemental breathing devices underground. The elements of the ETS
    became a permanent regulation in December 2006, although the final
    regulations do modify and clarify some elements of the ETS.^4

    1Pub. L. 109-236.

    ^2The Mine Act gives MSHA the authority to issue an ETS when the agency
    determines that miners are exposed to grave danger from exposure to
    substances or agents determined to be toxic or physically harmful, or to
    other hazards, and that an emergency standard is needed to protect miners
    from such danger. The ETS becomes effective upon publication in the
    Federal Register and remains in effect until replaced by permanent rules
    that go through the regular rule-making process, but for no longer than 9
    months.

    ^330 C.F.R. Parts 48, 50, and 75, Emergency Mine Evacuation; Final Rule,
    71 Fed. Reg. 12,252 (March 9, 2006).

    ^430 C.F.R. Parts 3, 48, 50, and 75, Emergency Mine Evacuation; Final
    Rule, 71 Fed. Reg. 71,430 (December 8, 2006).

    The underground mining industry is highly concentrated in the Appalachian
    region, east of the Mississippi River. Approximately 87 percent of all
    underground coal mines in the United States are located in Kentucky,
    Pennsylvania, Virginia, and West Virginia. Eight of MSHA's 11 district
    offices are located in these states, and MSHA's headquarters is located in
    Arlington, Virginia.

    MSHA plays a key role in ensuring the education and training of miners,
    mine inspectors, and other industry stakeholders. MSHA's Directorate of
    Educational Policy and Development provides technical support to mine
    operators through its Educational Field Services, which has staff located
    in many of MSHA's district offices. The directorate also operates the
    National Mine Health and Safety Academy (Mine Academy) in West Virginia,
    which primarily serves as the training center for MSHA mine inspectors but
    is also available to federal and local government and industry personnel
    for training on a variety of mine health and safety topics. The Mine
    Academy also provides nearly all of the classroom training for newly hired
    MSHA mine inspector trainees and technical specialists. In addition, MSHA
    regulations govern the training and retraining of miners and mine rescue
    team members. Mine operators are required to provide at least 40 hours of
    training to new underground mine workers and at least 8 hours of annual
    training to experienced miners. The training must cover a variety of
    topics, such as learning the layout of the mine and proper safety
    procedures, and must be conducted by an MSHA-approved instructor. Miners
    who volunteer for mine rescue teams are generally required to pass a
    rigorous physical examination, complete an initial 20 hours of training on
    the breathing apparatus used by the team, and an additional 40 hours of
    annual training on issues such as reading mine maps, understanding
    ventilation systems, and the use of mine rescue equipment.^5

    Both MSHA and NIOSH are responsible for getting new technology into the
    mines. MSHA performs this role by certifying certain equipment used in a
    mine is safe for underground use. MSHA also provides technical support to
    mine inspectors and mine operators in a number of areas, such as
    electrical and ventilation systems, roof control, and control of coal
    dust. In conducting its health and safety research and development, NIOSH
    consults with a number of different entities, including MSHA and the
    mining industry. NIOSH is also responsible for developing or adapting new
    technologies for use in the mining industry. Before the passage of the
    Mine Act in 1977, both mine enforcement and research were the
    responsibility of the Bureau of Mines, which was located in the Department
    of Interior. After the passage of the act, MSHA was created when the
    enforcement function was moved from the Bureau of Mines to the Department
    of Labor. In 1997, following the closure of the Bureau of Mines, mine
    research was placed under the auspices of the Department of Health and
    Human Services' Centers for Disease Control and Prevention and became a
    part of NIOSH.

    ^5The MINER Act also imposes some new training requirements for mine
    rescue teams. MSHA is required to promulgate regulations implementing
    these requirements within 18 months of June 15, 2006. 30 U.S.C. S
    825(e)(2).

    The federal government's enforcement of mine safety and health is shared
    by two independent agencies--MSHA and the Commission--in a
    split-enforcement model that is relatively uncommon in the federal
    government. While MSHA is responsible for inspecting mines for safety and
    health violations, the Mine Act grants authority to the Commission to
    assess all civil penalties for violations found by MSHA. In practical
    terms, MSHA proposes the initial penalty based on the findings of its
    inspectors.^6 However, these proposals are subject to review by the
    Commission, and no proposed penalty that has been contested by a mine
    operator can be settled without the approval of the Commission. The
    Commission includes five members appointed by the President and confirmed
    by the Senate. ALJs assist in carrying out the responsibilities of the
    Commission and are authorized by the Administrative Procedures Act (APA)
    and the Mine Act to independently review MSHA's enforcement actions. ALJ
    decisions are considered final decisions of the Commission unless it
    decides to review a case within 40 days of the ALJ decision. If MSHA or
    the mine operator disagrees with the Commission decision, either can
    appeal the case to the appropriate U.S. Court of Appeals.

    In assessing penalties, the Mine Act requires both the Commission and MSHA
    to consider six statutory factors:

               1. the mine operator's history of previous violations,
               2. the appropriateness of the penalty to the size of the mine,
               3. whether the mine operator was negligent,
               4. the effect on the operator's ability to continue in business,
               5. the gravity of the violation, and
               6. the demonstrated good faith of the mine operator charged in
               quickly remedying the situation after being notified of a
               violation.

    ^6If the penalty proposed by MSHA is not contested by the mine operator
    within the time allotted by law, it becomes a final order of the
    Commission.

    MSHA's Coal Mine Safety and Health Administration is responsible for
    carrying out enforcement activities related to surface and underground
    coal mines. As of January 2007, MSHA employed approximately 550
    underground coal inspectors in its 11 coal districts. MSHA's principal
    enforcement responsibility for underground coal mines is fulfilled by
    conducting a minimum of four comprehensive inspections of every
    underground coal mine each year.^7 When MSHA inspectors observe violations
    of federal health and safety standards, they are required to issue a
    citation to the coal mine operator.^8 However, even if an operator does
    not agree with the violation, the operator must resolve the problems
    within the time frame set by the inspector.

    Under new MSHA regulations that took effect in April 2007,^9 the amount of
    a civil penalty that MSHA can assess for violation of an underground coal
    mine safety and health standard generally ranges from $112 to $60,000.^10
    However, the MINER Act introduced a new "flagrant violation," which
    carries a maximum civil penalty of $220,000.^11 The MINER Act also
    established criminal penalties for certain willful or knowing violations
    of the Mine Act.^12

    7Mines that are recognized as more dangerous, such as those containing
    high levels of methane gas, are inspected more frequently.

    ^8MSHA inspectors are authorized to issue either a citation or a
    withdrawal order when they observe a health and safety violation. All
    withdrawal orders compel the removal of miners from the affected work
    areas until the observed hazard is terminated. This, in essence, could
    halt production in a particular area of the mine.

    ^9Criteria and Procedures for Proposed Assessment of Civil Penalties;
    Final Rule, 72 Fed. Reg. 13,592 (March 22, 2007) (codified at 30 C.F.R.
    Part 100).

    ^10Under its prior regulations, MSHA also used a "single penalty
    assessment" for violations that were not reasonably likely to result in a
    reasonably serious injury or illness, and that were abated within the time
    set by the inspector. The penalty for these violations was $60. However,
    the new regulations eliminate the single penalty assessment.

    ^11The MINER Act defines flagrant violations as those that involve "a
    reckless or repeated failure to make reasonable efforts to eliminate a
    known violation of a mandatory health or safety standard that
    substantially and proximately caused, or reasonably could have been
    expected to cause, death or serious bodily injury." 30 U.S.C. S 820(b)(2).

    Once a penalty is proposed, a mine operator can (1) accept the proposed
    penalty and pay it or (2) formally contest the penalty before the
    Commission (see fig. 1 for a more detailed view of the process).

    ^12A mine operator's first conviction under these criminal provisions may
    carry a fine of up to $250,000 and imprisonment for up to 1 year.
    Subsequent convictions are punishable by fines of up to $500,000 and 5
    years of imprisonment. 30 U.S.C. S 820(d).

    Figure 1: Penalty Assessment Process for Mine Operators That Are Cited for
    Violating Safety and Health Standards

    Note: If the citation or order is vacated by the Commission or the courts,
    no civil penalty is assessed.

    Underground Coal Mines Face Challenges in Preparing Mine Workers and Rescue
    Teams for Emergencies

    Underground coal mine operators face significant challenges preparing for
    emergencies, including ensuring that miners receive realistic training and
    organizing mine rescue teams that satisfy new requirements. Limited access
    to facilities for training miners under simulated emergency conditions and
    the cost of such training challenge many mine operators. While MSHA has
    some materials for providing hands-on training, it does not provide all
    mine operators with information and tools to assist them in training
    miners under simulated emergency conditions. In preparing mine rescue
    teams to respond to emergencies, mine operators reported costs and
    training as key challenges, and indicated that implementing new
    requirements in the MINER Act may exacerbate these challenges.

    Emergency Preparedness Training of Miners Is Limited by Few Opportunities to
    Train under Simulated Emergency Conditions

    Although new MSHA requirements instruct mine operators to conduct
    emergency preparedness training that includes realistic mine emergency
    evacuation drills, many mine operators had not implemented these
    requirements as of the end of 2006. MSHA's ETS issued in March 2006
    required mine operators to provide hands-on training in the complete
    donning of the breathing devices miners carry with them into underground
    mines in the event that the breathable air becomes contaminated.^13 On the
    basis of our survey, we estimate that 77 percent of underground coal mines
    conducted evacuation drills where most or all of their workers practiced
    donning a breathing device during the drill in 2006.^14 However, we
    estimate that out of those mines, 44 percent did not have their workers
    practice inserting the mouthpiece. Although the March ETS permitted miners
    to simulate the insertion of the mouthpiece in training exercises, the
    final rule in December clarified that actual insertion is required.^15
    MSHA requires all miners to practice each step in the process of donning
    the device, including opening and activating the device and inserting the
    mouthpiece. The purpose of this training is to familiarize miners with the
    process of operating a breathing device and the sensations of breathing
    through it, such as resistance when breathing and the heat generated by
    the unit.^16 However, not all mines have trained miners in all of these
    steps (see fig. 2).

    ^13Emergency breathing devices, also known as self-contained self-rescuers
    (SCSR), are closed-circuit devices containing or producing an independent
    supply of oxygen, enabling miners to breathe in the presence of hazardous
    or life-threatening contaminants in the atmosphere.

    ^14Percentage estimates are based on the sample and are subject to
    sampling error. We are 95 percent confident that the results we obtained
    are within plus or minus 8 percentage points of the true values of the
    in-scope population. Each sample element was subsequently weighted in the
    analysis to account for all members of the in-scope population, including
    those that were not selected.

    ^15MSHA made this change in the final rule because it was concerned that
    without actually physically inserting the mouthpiece, a miner may not gain
    the skills to effectively and properly perform this action.

    Figure 2: Estimated Extent of Training Conducted with Breathing Devices at
    Mines in 2006

    Based on our survey, we estimate that of the mines where most or all of
    the workers practiced donning a breathing device in 2006, only 36 percent
    practiced inserting the mouthpiece, a result that could be due to miners'
    reluctance to share used mouthpieces. According to mine safety and
    training officials, even when the mouthpieces are sterilized between uses,
    many miners are reluctant to use them because of the fear of infection. In
    addition, the March ETS and the December regulations require that miners
    practice switching from one breathing device to another in the event that
    they have to use more than one device during an emergency, but an estimate
    of 42 percent of all mines did not conduct such exercises in 2006.

    ^16Although ETS requirements initially were effective immediately, the
    final rule issued in December 2006 did not include a required compliance
    date for training with breathing devices because, according to MSHA,
    training devices that provided the sensation of airflow resistance and
    heat were not available for purchase at that time. In March 2007, MSHA
    published a notice in the Federal Register informing mine operators that
    they must have a purchase order for realistic SCSR training units by April
    30, 2007, and that they must conduct training within 60 days of the
    receipt of the units. See Emergency Mine Evacuation, 72 Fed. Reg. 15,169
    (March 30, 2007).

    In addition, we estimate that about half of mines had not conducted drills
    in environments that simulate actual emergency situations, and many cited
    providing such training as one of the greatest challenges they face in
    preparing workers for mine emergencies. MSHA's new training requirements
    direct mine operators to conduct quarterly mine emergency evacuation
    drills; install directional lifelines to help miners find their way out of
    a dark mine; and instruct miners in the procedures for evacuating the mine
    in emergencies, such as those involving fires or explosions.^17 On the
    basis of our survey, almost all mines conducted evacuation drills and
    installed lifelines in 2006. However, we estimate that half of the mines
    had not conducted drills in environments that simulated actual emergency
    situations. According to our survey, the greatest challenges in preparing
    miners for and responding to mine emergencies related to simulated mine
    emergency training. Specifically, the three most commonly reported
    challenges were the availability of training centers that can simulate an
    emergency situation, the availability of training in a simulated mine
    emergency situation, and the cost associated with providing simulated mine
    emergency training (see fig. 3).

    ^17To ensure that four major scenarios--fire, explosion, gas, and water
    inundation--are covered each year, the final rule issued in December
    requires that a different scenario be used each quarter in conducting
    evacuation drills.

    Figure 3: Mines' Assessment of Challenges in Preparing Workers for Mine
    Emergencies

    Although mine operators recognized the importance of simulated emergency
    training, many mines faced challenges conducting such training due to
    their limited access to special facilities and the high cost of such
    training. We estimate that 81 percent of mines viewed the availability of
    training in a simulated mine emergency situation as a moderate to major
    challenge. According to mine training officials and experts, emergency
    training is best conducted in simulated conditions that are as close to
    the actual conditions present during an emergency as possible because it
    builds miners' confidence and enables them to respond appropriately during
    an actual emergency. The Mine Academy in Beaver, West Virginia, provides
    some facilities for training under simulated emergency conditions, but it
    is used primarily for mine rescue training and, according to some mining
    industry officials, is often not a viable training option because of its
    limited capacity and distance from many mines. In addition, mine operators
    can use a mobile training facility developed for various simulated
    emergency conditions, but it is not always available, in part because of
    limitations on instructors' time.^18 The high cost of providing simulated
    training is another challenge, particularly for smaller mines. On the
    basis of our survey, we estimated that small mines were less likely to
    have performed such drills than larger mines.^19 In addition, the cost
    associated with providing simulated mine emergency training is more of a
    challenge for small mines than larger mines. According to our survey,
    small mines were more likely than larger mines to consider the cost of the
    training to be a major challenge. According to MSHA officials, small mines
    are less likely than larger mines to employ a full-time safety director
    who can devote time to developing training under simulated emergency
    conditions.

    Although MSHA has materials that mine operators can use to provide
    hands-on training on specific topics, it does not provide all mine
    operators with information and tools for training under simulated
    emergency conditions. MSHA has a catalog of various training tools,
    including classroom exercises, which mine operators can obtain upon
    request. For example, to support the March ETS requirements for training
    with breathing devices, MSHA distributed a training packet to all
    underground coal mines and appropriate state grantees.^20 However, MSHA
    does not provide all mine operators with examples of how to provide
    training in simulated emergency environments such as smoke-filled mines or
    information on resources available for providing such training. Mine
    operators use a number of techniques to simulate emergency conditions, but
    other mine operators may be unaware of them. One mine operator we
    interviewed reported using a maze in a garage-sized tent filled with
    artificial smoke to allow workers to safely practice evacuating a
    smoke-filled mine, and other operators reported using darkened goggles
    during evacuation drills to simulate the limited visibility miners would
    experience in a smoke-filled mine. While MSHA has five artificial smoke
    machines that mine operators may use to help train their workers in
    evacuating a smoke-filled environment, many mine operators may not know
    about them because MSHA does not list them in its catalog of training
    products or communicate their existence to all mine operators. Based on
    our survey, we estimate that about half of the mines received no
    assistance from MSHA in preparing for a mine emergency, such as help
    developing drills in simulated emergency environments. In addition,
    several mine operators commented that they viewed MSHA as enforcing safety
    regulations rather than serving as a resource for developing or providing
    training.

    ^18In 2006, 15 underground coal mines, mostly in West Virginia and
    Pennsylvania, used the West Virginia University Mining Extension Service's
    mobile training facility to provide simulated emergency training to their
    workers.

    ^19For purposes of our survey, small mines are defined as those with 36
    employees or fewer, whereas larger mines are those with more than 36
    employees.

    ^20The packet contained a DVD on the protocol for how to transfer from one
    breathing device to another, training manuals on six types of breathing
    devices, an article on how to disinfect the devices, and other related
    information.

    Mine Operators Face Challenges Funding and Training Rescue Teams and Anticipate
    Further Challenges Implementing New Requirements

    Mine operators reported costs and training as key challenges in preparing
    rescue teams to respond to mine emergencies, and indicated that
    implementing new requirements in the MINER Act may exacerbate these
    challenges. According to our survey, cost concerns and opportunities to
    conduct simulated training with all stakeholders are the greatest
    challenges in preparing rescue teams for mine emergencies (see fig. 4).

    Figure 4: Mines' Assessment of Rescue Team Challenges in Preparing for
    Mine Emergencies

    An estimate of 68 percent of mines considered the funding required to
    equip mine rescue teams as a moderate to major challenge in their ability
    to prepare them for emergencies. For example, mine rescue teams need
    special breathing devices, gas detectors, and communication equipment.
    According to a 2006 industry study, the cost of equipping a typical new
    mine rescue team is over $90,000, which may be expensive for some mine
    operators.^21 In addition, all equipment must be maintained to ensure that
    it is ready to be used, and therefore must be inspected every 30 days,
    according to MSHA regulations.

    ^21Bituminous Coal Operators' Association and National Mining Association,
    Mine Rescue Handbook: Emergency Response Procedures, Practices and
    Responsibilities, January 2007.

    Limited opportunity to conduct training in simulated emergency
    environments with each stakeholder who could be involved in an emergency
    response effort is a moderate to major challenge for an estimated
    two-thirds of mines. When a mine emergency occurs, several entities take
    an active role in the decision-making process that requires quick action
    and familiarity with the procedures and actions of the other players. For
    example, the mine command center set up at the beginning of the response
    to a mine emergency includes officials from the affected mine, a
    representative of the miners, and MSHA and state officials who are
    responsible for overseeing the rescue efforts and communicating with the
    rescue team members underground. In 1995, a panel of mine experts
    recommended that rescue teams, labor unions, state agencies, and federal
    agencies join together to participate in mine emergency response
    exercises. However, MSHA officials told us that while they have developed
    a process for conducting these exercises, few are carried out at mines
    each year.^22

    The time required to train and prepare new mine rescue team members was
    also cited as a significant challenge by many mines. We estimate that
    two-thirds of mines considered the time required to train and prepare new
    mine rescue team members a major or moderate challenge in implementing the
    requirements of the MINER Act. Under current regulations, before serving
    on a mine rescue team, each member must complete 20 hours of instruction
    in the use and maintenance of the types of breathing apparatus and other
    equipment used by the team. In addition, mine rescue team members must
    have at least 40 hours of refresher training each year, which includes,
    among other things, all team members donning breathing devices for at
    least 2 hours every 2 months and at least one underground training session
    every 6 months. Because many mines rely on mine workers to constitute
    their designated mine rescue teams and because such training can conflict
    with employees' regular work, some mine operators may feel that it lowers
    productivity.

    ^22MSHA's Managerial Emergency Responsiveness Development Program (MERD)
    utilizes interview and survey feedback techniques, emergency situations
    and role playing, assessment center methods with feedback, tutorials, and
    knowledge tests to improve and develop emergency management capabilities.
    It was designed specifically for MSHA managers, but has been used by other
    organizations such as individual mines.

    In addition to these challenges, mine operators reported that they
    anticipated further challenges stemming from new requirements in the MINER
    Act. We estimate that half of underground coal mines anticipate changing
    the composition of at least one of their designated mine rescue teams as a
    result of the MINER Act. Of the provisions related to mine rescue, the one
    that mine operators most anticipated necessitating significant change is
    the requirement that teams train at least annually in the mines they are
    responsible for covering. In part, this change is attributed to the way
    mine rescue services are provided to many mines in several key coal mining
    states. According to respective state officials, all mines in Kentucky and
    many in Virginia and Pennsylvania rely on the state to provide or arrange
    for mine rescue services. In Kentucky, for example, mines receive rescue
    services from state teams composed of state mine inspectors whose primary
    duties are to inspect coal mines. According to a state official, a
    Kentucky team would be required to conduct 120 training exercises annually
    under the MINER Act, compared to the 12 exercises it currently conducts.
    Depending on the final regulations developed by MSHA to implement the
    requirements of the MINER Act, officials in Kentucky said they might stop
    offering mine rescue services because of the amount of time that will be
    needed to meet the training requirements outlined in the MINER Act.
    Similarly, according to state mine safety officials and rescue teams in
    Virginia, the state will probably have to stop contracting with larger
    mines to provide rescue team services for many small mines in the state
    because of the amount of time that teams would be required to train at
    each mine. According to state mining officials in Pennsylvania, smaller
    mines would be most affected if the state stops providing rescue teams
    because, unlike larger mines, they tend not to have their own mine rescue
    teams.

    Some mine operators have started making changes to their mine rescue teams
    based on the MINER Act, while others are taking a cautious approach, given
    the costs to train and equip new rescue teams. For example, one company
    operating multiple mines reported that it was creating new backup mine
    rescue teams that will satisfy the new 1-hour travel time requirement of
    the act. In other cases, however, according to mine and industry
    officials, mines were waiting to see how MSHA implements the new mine
    rescue requirements before changing their team designations.^23 For
    example, the extent of the required training at each mine could affect how
    mine operators designate rescue teams. According to state mining
    officials, this requirement might involve the entire team training
    underground and activating breathing devices at each mine or something
    less resource-intensive, such as training aboveground at each mine. Some
    state mining officials and mine operators told us they feared that mines
    that create new rescue teams will staff them with less experienced people
    who may not be able to adequately protect miners during an emergency.
    However, officials with the United Mine Workers of America, the coal
    miners' union, told us that MSHA should move forward in requiring mines to
    meet the requirements of the act more quickly, including establishing mine
    rescue teams at each mine without waiting for the regulations to be
    finalized. They said they believed that the requirements of the act are
    clear.

    ^23MSHA has not yet determined how the mine rescue team requirements in
    the MINER Act will be implemented. MSHA officials said they plan to hold
    public hearings on the requirements of the act before publishing final
    rules. The final rule is due December 2007.

    MSHA Reviews Mines' Training Plans and Inspects Training Records but Does Not
    Adequately Monitor Instructors or Training

    MSHA has the authority to oversee certain aspects of miner training to
    help ensure that miners work safely and are prepared for potential
    emergencies, but its oversight of training is hindered by several factors,
    including having inconsistent instructor approval standards. As part of
    its oversight role, MSHA reviews and approves the training plans that mine
    operators are required to prepare and inspects training records. As part
    of its stated mission, MSHA's Educational Field Services office helps
    develop mine operators' training plans and evaluates instructors and
    training programs. Educational Field Services staff also provide input to
    district managers who are responsible for approving new instructors.

    MSHA has general guidelines for items to be considered when approving new
    instructors, but allows districts to determine an instructor's
    qualifications in different ways. To become an approved instructor, MSHA
    requires that an applicant prove his or her mining and teaching experience
    in one of three ways: by (1) submitting written qualifications, (2)
    attending new instructor training, or (3) teaching a class monitored by
    MSHA under provisional approval from an MSHA district manager. MSHA
    suggests factors that district managers may use in determining an
    applicant's skills, but it does not have firm criteria that new
    instructors must meet. For example, to assess an applicant's mining
    qualifications, the district manager may consider, among other factors,
    the applicant's work experience, state certifications, and completion of
    MSHA courses. To assess an applicant's teaching skills, a district manager
    may consider prior teaching experiences and evaluations from teaching
    sessions at MSHA's instructor training course. In addition, approval
    procedures are not standardized across MSHA's 11 coal districts, according
    to MSHA officials. For example, some districts grant provisional approval
    whereby individuals are allowed to teach specific courses subject to
    subsequent approval based on MSHA's monitoring of their teaching skills.
    However, according to MSHA officials, some of these districts may not
    monitor these instructors' teaching skills. In other districts,
    provisional authority is only granted to new instructors if they can be
    monitored by MSHA staff. According to MSHA officials, staff resources
    limit districts' ability to monitor applicants' teaching skills.

    Another factor that hampers MSHA's ability to monitor training is the fact
    that it does not have current information on all of its instructors. MSHA
    maintains a database of approved instructors that includes contact
    information for each instructor, the courses they are approved to teach,
    and whether they have full or provisional authority to teach the courses.
    But according to MSHA officials, the database contains outdated contact
    information because some instructors move without notifying MSHA. Without
    accurate information on its instructors, MSHA cannot ensure that
    instructors receive training policy updates and cannot determine whether
    there are enough qualified instructors to meet mine operators' needs.

    In addition, MSHA does not have continuing education requirements for its
    instructors. Once instructors are approved, according to an MSHA official,
    they are not required to demonstrate that they are staying current on
    emerging mining issues. As a result, MSHA cannot ensure that instructors
    are keeping their mining knowledge and skills up to date, including their
    knowledge of emerging safety and health issues and new training tools. For
    example, although MSHA did send its new training guides on transferring
    and donning emergency breathing devices to all underground coal mines, it
    did not send them to the instructors who conduct the training.

    MSHA also does not adequately monitor instructors or evaluate training
    sessions and does not assess whether miners are learning what is being
    taught in training sessions. According to MSHA guidance, Educational Field
    Services and district inspection staff should monitor as many training
    sessions as resources permit. MSHA's guidance includes an instructor
    evaluation form and a list of steps that staff should take in monitoring
    instructors, but according to MSHA officials, the agency monitors few
    miner training sessions relative to the number conducted. According to
    mine operators and trainers, MSHA rarely oversees training and monitors
    sessions primarily for enforcement purposes rather than in an attempt to
    enhance instructors' knowledge and abilities. According to MSHA officials,
    instructor evaluations occur on an ad hoc basis by MSHA inspectors who
    happen to be present or by Educational Field Services staff who attend in
    response to a specific request. In addition, many of the training sessions
    occur on the weekends, when MSHA staff do not work, limiting their ability
    to monitor training. MSHA does not collect or analyze training evaluations
    obtained from miners to help gauge whether learning objectives are taught
    effectively, and an estimate of 80 percent of mines do not elicit feedback
    on training sessions from their workers. Because MSHA does not regularly
    monitor training and because most mines do not elicit feedback, MSHA
    cannot determine how well miners are learning the skills taught by
    MSHA-approved trainers and recommend corrective measures as necessary.

    MSHA and NIOSH Lack a Formal Agreement to Guide Mine Safety Coordination

    MSHA and NIOSH have a common mission to improve the safety and health of
    coal miners, but do not have a formal agreement, such as a memorandum of
    understanding, to guide agencywide coordination efforts or formally
    involve each other in their strategic planning efforts. As a result,
    coordination between the two agencies is largely informal and
    inconsistent. Most of the coordination that occurs is initiated by
    individual staff members or by outside parties, such as labor unions. Such
    informal coordination may not be sufficient given the pending retirements
    of engineers and scientists and other challenges that both agencies face.

    Despite Complementary Roles, Coordination between MSHA and NIOSH Is Primarily
    Staff-Initiated and Inconsistent

    MSHA and NIOSH have complementary roles in improving the safety and health
    of coal miners, but coordination between the two agencies is largely
    informal and inconsistent due to a lack of a formal agreement or policies
    to guide their efforts. MSHA is primarily involved in setting health and
    safety standards and enforcing them through mine inspections that can
    result in citations and penalties, whereas NIOSH's mining program is
    focused on research into the causes of and ways to prevent the safety and
    health hazards miners face.^24 While MSHA and NIOSH have different
    functions, their roles are complementary in a number of respects. Both are
    involved in providing training and technical assistance for mine
    inspectors and operators. For example, officials told us that NIOSH
    researchers help develop training modules and products on a variety of
    safety and health topics that MSHA makes available to mine operators and
    inspectors through the Mine Academy. In addition, NIOSH may recommend that
    MSHA issue new safety and health standards based on research findings.

    ^24According to a top NIOSH official, most of NIOSH's mining program
    activities now fall under the Office of Mine Safety and Health, a new
    office established by the MINER Act. According to this official, the
    office primarily makes permanent a more informal structure that existed in
    NIOSH for mining research and expands NIOSH's focus on safety technology
    development.

    Further, MSHA and NIOSH are both responsible for getting new safety
    technology into the mines. After determining a need for a new safety
    technology, NIOSH either works directly with manufacturers to develop a
    new product or to adapt one used in another industry to the mining
    environment, or develops a market-ready technology and encourages
    manufacturers to produce it on a larger scale. For certain kinds of mining
    products, the manufacturer must get MSHA's approval before the technology
    can be used in mines. Before approving it, MSHA's technical experts
    evaluate and test products to ensure that they will not cause a fire or
    explode in an underground coal environment. See table 1 for an
    illustration of MSHA's and NIOSH's complementary roles.

    Table 1: MSHA's and NIOSH's Complementary Roles

    MSHA's key activities                  NIOSH's key activities
    Inspect mines and investigate mine
    accidents and complaints
    Develop mandatory safety and health    Enumerate hazards in the workplace
    standards                              Identify the causes of work-related
                                              diseases and injuries
                                              Create ways to control hazards
                                              Recommend occupational safety and
                                              health standards
    Assess and collect penalties for
    violations of mine safety and health
    standards
    Review for approval mine operators'
    health and safety training plans
    Maintain Mine Academy to train MSHA    Train safety and health
    personnel, including inspectors, and   professionals
    others
    Approve and certify certain products   Evaluate the hazards of new
    for use in underground coal mines to   technologies and work practices
    ensure they do not cause a fire or     Research, develop, and test new
    explosion                              technologies and equipment designed
                                              to enhance mine safety and health
    Provide technical assistance to mine
    operators to meet the requirements of
    the Mine Act
    Cooperate with states in the
    development of their mine safety and
    health programs
    Make grants to states in which mining
    takes place
    Oversee rescue and recovery operations

    Source: GAO analysis of agency documents.

    Given their roles, MSHA and NIOSH have different perspectives that can
    inform each other's work. Through inspections, its role in reviewing and
    approving miner training, and the technical assistance it provides to mine
    operators, MSHA officials told us the agency has knowledge of the
    day-to-day workings of a mine that can help inform NIOSH research. MSHA
    officials also told us that NIOSH, under the Centers for Disease Control
    and Prevention, has the capacity to conduct longer-term scientific
    research and benefits from the perspective of the wider occupational
    safety and health community.

    However, MSHA and NIOSH do not have a current formal agreement, such as a
    memorandum of understanding or other policy, to guide their coordination
    efforts, a practice we have identified as effective in prior work.^25 In
    1978, NIOSH's predecessor in the Bureau of Mines and MSHA had a signed
    memorandum of understanding that specified how they would coordinate to
    ensure the full and effective use of the Bureau of Mines' research
    capabilities and MSHA's resources and assistance to ensure that technology
    resulting from mine safety research would be used to the fullest
    extent.^26 The memorandum embodied many of the key practices we have
    identified in prior work that can help federal agencies enhance and
    sustain their collaborative efforts, such as defining roles and
    responsibilities and developing joint strategies. For example, the
    memorandum stated that the Bureau of Mines would provide overall
    coordination for the mine safety and health research programs, and MSHA
    would provide advice and assistance on issues such as health and safety
    standards and participate through the life cycle of research projects. In
    addition, the two agencies would develop a joint research strategy for
    short, intermediate, and long-term objectives, as well as hold regular
    meetings between staff designated as coordinators for both agencies. The
    agreement was developed following the move of MSHA from the Bureau of
    Mines into the Department of Labor. However, the memorandum is no longer
    used, and MSHA officials were unaware of a plan to update the document.
    (See table 2 for key coordination practices GAO has identified.)

    ^25We have reported that agencies can strengthen their commitment to work
    collaboratively by articulating their agreements in formal documents, such
    as a memorandum of understanding, interagency guidance, or an interagency
    planning document, signed by senior officials in the respective agencies.
    See GAO, Results-Oriented Government: Practices That Can Help Enhance and
    Sustain Collaboration among Federal Agencies, [33]GAO-06-15 , (Washington,
    D.C.: Oct. 21, 2005).

    ^26This agreement was originally executed between MSHA's predecessor in
    the Department of Interior, the Mining Enforcement and Safety
    Administration (MESA) and NIOSH's predecessor, the Division of Mining
    Research - Health and Safety in the Bureau of Mines in 1976. The agreement
    was updated in 1978 after MESA was transferred to the Department of Labor
    and renamed MSHA.

    Table 2: Key Practices for Effective Coordination

    Define and articulate a common federal outcome or purpose they are seeking
    to achieve that is consistent with their respective agency goals and
    missions. Developing such a common outcome takes place over time and
    requires sustained resources and commitment.
    Establish mutually reinforcing or joint strategies to achieve the outcome.
    Such strategies help align the agencies' activities, core processes, and
    resources to accomplish the common outcome.
    Identify and address needs by leveraging resources (human, information
    technology, physical, and financial resources). Agencies can obtain
    additional benefits that would not be available if they were working
    separately.
    Agree upon agency roles and responsibilities. In doing so, agencies can
    clarify who will do what, organize their joint and individual efforts, and
    facilitate decision making. Committed leadership from all levels of the
    organization is also important.
    Establish compatible policies, procedures, and other means to operate
    across agency boundaries. Frequent communication is another means to
    facilitate working across agency boundaries and prevent misunderstanding.
    Develop mechanisms to monitor, evaluate, and report the results of
    collaborative efforts. Doing so can help key decision makers within the
    agencies, as well as clients and stakeholders, obtain feedback for
    improving both policy and operational effectiveness.
    Reinforce agency accountability for collaborative efforts through agency
    plans and reports. Federal programs contributing to the same or similar
    results should collaborate to ensure that goals expressed in strategic and
    annual performance plans are consistent and, as appropriate, program
    efforts are mutually reinforcing^a
    Reinforce individual accountability for collaborative efforts through
    agency performance management systems. Agencies can do so by, for example,
    holding agency senior executives accountable for collaboration and
    teamwork across organizational boundaries to help achieve goals.

    Source: GAO.

    aThe purpose of the Government Performance and Results Act of 1993 (GPRA)
    is to establish strategic planning and performance measurements for
    federal agencies. Under GPRA, federal agencies are required to develop
    strategic plans, set program goals and measure performance against them,
    and publicly report on their progress to the President and Congress (Pub.
    L. 103-62).

    In addition, MSHA and NIOSH do not regularly involve each other in their
    strategic planning efforts, including planning for research, as required
    by the Government Performance and Results Act.27 NIOSH uses a
    comprehensive framework to gain input from more than 500 stakeholders on
    its research agenda, but MSHA officials contend that their agency should
    have a higher priority among NIOSH's stakeholders for planning its
    research. While mine safety and enforcement is MSHA's primary focus, mine
    research is only one part of NIOSH's much broader worker safety agenda,
    which includes preventing and reducing occupational disease, injury, and
    death in a number of fields such as agriculture, health care, emergency
    response, and mining. An MSHA headquarters official told us that the
    agency does not know much about NIOSH's research outside of the few
    partnerships in which the two agencies are engaged. A top NIOSH official
    told us that the agency generally does not involve MSHA in planning its
    research unless doing so could involve a change in regulations. Officials
    from both agencies told us that when both agencies were under the Bureau
    of Mines, MSHA had a greater influence on NIOSH's research agenda.

    ^27When developing strategic plans, GPRA requires agencies to, among other
    things, solicit and consider the views and suggestions of those entities
    potentially affected by or interested in such a plan. 5 U.S.C. S 306(d).

    For their part, NIOSH officials expressed a desire for more input into
    MSHA's rulemaking process. The head of one of NIOSH's research branches
    suggested that MSHA should allow NIOSH and other key stakeholders, such as
    the labor unions and the mining industry, to comment on a proposed rule
    before it is published for public comment in the Federal Register.28 He
    noted that MSHA recently solicited NIOSH's input on the proposed personal
    dust monitor regulations. Another official expressed concern that MSHA
    sometimes issues new safety and health regulations or standards without
    fully considering the research that should be conducted before
    implementing them, requiring NIOSH to dedicate resources to unplanned
    research. For example, MSHA issued a stricter regulation for noise levels
    in the mines to prevent hearing loss in 1999, causing NIOSH to make
    changes in its staffing and funding to make research into technology to
    control noise and efforts to educate mine workers a higher priority.

    A recent National Academy of Sciences review of NIOSH's hearing loss
    research program found that the mechanisms through which NIOSH anticipates
    the early research needs of MSHA and other regulatory partners are not
    sufficiently consistent and systematic and that there did not seem to be
    an effective joint planning process for regulatory activities. The academy
    recommended that the program establish regular means of conferring with
    its partners to better anticipate their research needs relevant to
    regulatory decision making. Anticipating research needs is particularly
    important given that MSHA and NIOSH operate under different time frames.29
    MSHA must quickly respond to safety hazards identified in the mines,
    whereas NIOSH typically requires 3 to 5 years to conduct its research,
    according to officials from both agencies.30 The 1978 memorandum between
    NIOSH's predecessor and MSHA provided for such consultation, requiring
    MSHA to advise the Bureau of Mines of its plan for developing and revising
    standards in order to allow sufficient opportunity for technical
    consultation prior to publishing proposed regulations. Similarly, the
    bureau would advise MSHA of research results that could affect existing or
    proposed regulations.

    ^28In commenting on our draft report, MSHA noted that it believes NIOSH
    provides input into MSHA's rule-making process through research,
    peer-reviewed studies, comments on rule-makings, and participation as a
    valued member in discussions on technical issues during MSHA rule-making
    panels.

    As a result of not having a formal agreement or policies to guide their
    activities, coordination between MSHA and NIOSH is primarily driven by
    informal relationships between staff at both agencies. Officials from both
    agencies and labor union representatives told us that coordination has
    been primarily at the initiative of individuals at both agencies and, as
    such has not always been consistent across the agencies. For example, some
    heads of research divisions at MSHA and NIOSH said that the staff from
    both agencies will contact each other on an informal basis if they have a
    question or need additional information on a current project. However,
    other division heads at MSHA reported less frequent communication and a
    NIOSH official confirmed that some divisions work together better than
    others.

    Communication between MSHA and NIOSH has improved in recent years, in part
    due to several partnerships, but these efforts are temporary, limited to
    specific issues, and not part of either agency's standard operating
    procedures. Further, officials acknowledged that most of these
    partnerships were initiated by outside parties, such as the mining
    industry or the labor unions, rather than by the agencies themselves. For
    example, in 1999 an industry group asked NIOSH to work with MSHA,
    manufacturers, and a labor union to develop a personal dust monitor, a
    device miners can wear to monitor in real time the amount of coal dust or
    other irritants that they are being exposed to as they work. Final testing
    of the monitors has been completed, but MSHA has not yet proposed new
    changes to the rule requiring mines to use them. In response to the MINER
    Act, NIOSH and MSHA are involved in another partnership with states,
    industry and labor groups, and others to develop, evaluate, and implement
    technology to help workers in mines communicate with personnel on the
    surface after an accident. The MINER Act requires mine operators to have
    two-way emergency communications systems within 3 years after passage of
    the act,31 but the harsh underground mine environment makes it difficult
    to adapt existing communications systems for this purpose. In 2006,
    Congress provided NIOSH with $10 million in emergency supplemental funds
    to be used by the end of fiscal year 2007 to support research to develop
    mine safety technology, such as communication devices. The funds, which
    NIOSH is awarding competitively, are targeted to communications and other
    technologies that could be available for use in mines within 24 to 36
    months. These partnerships, while good, have provided only a temporary and
    limited avenue for coordination between MSHA and NIOSH.

    ^29In commenting on our draft report, MSHA noted that its rule-making
    priorities are published in the Department of Labor's semiannual
    Regulatory Agenda, which provides milestones for MSHA rule-making for the
    years ahead.

    ^30NIOSH officials told us they can complete a project in less time in the
    case of an emergency.

    Informal Coordination May Be Insufficient Given Impending Retirements and Other
    Challenges MSHA and NIOSH Face

    NIOSH and MSHA face a potentially large workforce turnover in coming
    years, and informal coordination based on working relationships between
    staff members may not continue when the individuals leave. Like many
    federal agencies, a large proportion of engineers and scientists at MSHA
    and NIOSH are eligible to retire within the coming years. MSHA provided us
    with data showing that more than 50 percent of its 140 engineers and
    scientists will be eligible for retirement within the next 10 years, with
    31 percent eligible within 5 years (see table 3).32

    ^31If, however, a mine operator is unable to comply with this requirement,
    its accident response plan must set forth the alternative means of
    compliance, which shall approximate, as closely as possible, the degree of
    functional utility and safety protection provided by a wireless two-way
    communications device.

    ^32MSHA faces similar shortages in its inspector workforce in coming
    years. See GAO, MSHA's Revised Hiring Process Has Improved the Agency's
    Recruiting Efforts, But Its Human Capital Strategic Plan Does Not
    Adequately Project or Address Its Future Workforce Needs, GAO-07-704R
    (Washington, D.C.: May 16, 2007).

    Table 3: Proportion of MSHA Engineers and Scientists Eligible for
    Retirement over the Next 10 Years, as of March 2007

    Time of eligibility               Number of engineers Number of scientists
    Currently eligible                                 14                    5
    Eligible in 5 years                                18                    6
    Eligible in 10 years                               24                    4
    Total eligible within 10 years                     56                   15
    Total workforce                                   114                   26
    Percentage eligible within 10                     49%                  58%
    years

    Source: MSHA.

    Similarly, about half of NIOSH's employees--most of whom are scientists
    and engineers--are eligible to retire in the next 5 years. Although
    current informal coordination may provide researchers with the information
    they want, new staff replacing those who retire may not continue existing
    coordination practices without a formal agency policy guiding them to do
    so.

    In addition, MSHA and NIOSH face other challenges that require them to
    work more closely together, particularly in developing and approving
    safety technologies. An influx of new and inexperienced miners brought on
    by the increased demand for coal and the aging of the workforce, rising
    dangers as miners go deeper underground to mine coal, and recent mine
    disasters have heightened interest in getting promising new safety
    technology into the mines quickly. The MINER Act addresses some of these
    issues, and underscores NIOSH's and MSHA's roles in developing and
    approving safety technologies. For example, the act requires NIOSH to
    establish a permanent Office of Mine Safety and Health in order to enhance
    the development of new mine safety technology and speed the use of such
    technology in the mines, some of which requires MSHA's approval. The act
    also requires NIOSH to study the use of refuge chambers for miners that
    are unable to escape a mine during a disaster and requires MSHA to review
    the results to determine what actions, such as making regulatory changes,
    are appropriate in light of NIOSH's findings. NIOSH and MSHA are now
    working together to fulfill their responsibilities within the time frame
    required by the act.33 NIOSH also must establish an interagency working
    group made up of representatives of other federal agencies selected by
    NIOSH to share technology research and developments that could enhance
    mine safety and accident response. The group is to recommend technologies
    for further development to the Director of NIOSH and issue a report on
    safety technologies and equipment that have been studied, tested, and
    certified for use in the past year.

    Most Penalties Assessed by MSHA Are Paid without Opposition, but Many of Those
    Appealed Are Reduced Substantially

    Most of the penalties proposed by MSHA are paid by mine operators without
    opposition. However, a small percentage of more serious and higher-dollar
    penalties are appealed, and many of those appealed are reduced
    substantially. MSHA uses a standard formula to propose penalties, but the
    entities involved in the appeals process reported using more subjective
    methods to assess penalties. MSHA proposes penalties using a standard
    formula established in its regulations designed to assess higher penalties
    for more serious violations. However, the entities involved in the appeals
    process --Labor's Office of the Solicitor, MSHA's conference litigation
    representatives, 34 and the Commission's administrative law
    judges--recognize that their methods for determining penalty amounts are
    more subjective than MSHA's standard formula. As a result, while MSHA's
    standard formula and the proposed penalties it calculates using the
    formula are transparent, it is sometimes more difficult to determine how
    final penalty amounts were determined through the appeals process.

    ^33NIOSH is required to report out on its work within 18 months after the
    enactment of the MINER Act. MSHA then has 180 days after receiving the
    report from NIOSH to determine what actions it intends to take.

    ^34CLRs are MSHA enforcement staff and are located in every MSHA coal
    district. They have been provided with specialized legal training and are
    authorized by the agency to negotiate settlements for penalties that are
    no higher than $350 and are limited in legal complexity. The CLRs also
    oversee conferences requested by mine operators following the issuance of
    citations to attempt an informal resolution to the disputed violation.

    MSHA Uses a Standard Formula to Calculate Penalties, and Recent Changes Are
    Expected to Increase Them

    Through the regulatory process, MSHA has developed a standard formula to
    calculate proposed civil penalties. In order to determine the amount of a
    proposed penalty, the agency uses a standard formula that assigns point
    values to each of the six broad factors outlined in the Mine Act.35
    Through this formula, two of the six factors--whether the operator was
    negligent and the gravity of the violation--carry the greatest weight in
    deciding the amount of the proposed penalty. MSHA inspectors are
    responsible for identifying the magnitude of these two elements during
    their inspections.36 To determine negligence, the inspector must rate the
    operator's failure to provide adequate care to ensure the safety of miners
    on a scale from "no negligence" to "reckless disregard." To determine the
    gravity of the violation, the inspector must determine (1) the likelihood
    of harm that could come to miners, (2) the severity of any possible or
    actual injury or illness, and (3) the potential or actual number of miners
    that could be affected.

    After an inspector issues a citation and makes an initial finding
    regarding the levels of gravity and negligence involved in the violation,
    MSHA's Office of Assessments determines the magnitude of the remaining
    four factors and tallies the points for each of the six factors to
    determine the proposed penalty amount. Because MSHA's standard formula
    assigns greater points to gravity and negligence than the other four
    statutory factors, the application of the formula generally results in
    larger penalties being proposed for violations involving higher levels of
    gravity and negligence. Between 1996 and 2006, MSHA proposed 506,707
    penalties for safety and health violations, and the average penalty was
    $234 per violation. Table 4 details the range of average penalties, by
    degree of gravity and negligence, proposed by MSHA from 1996 through 2006.

    ^35Under regulations effective as of April 23, 2007, MSHA's penalties are
    assessed in two different penalty categories: regular and special. Prior
    to the recent regulatory changes, MSHA issued a third type of penalty
    called the single penalty. The single penalty was a flat $60 penalty for
    violations that are unlikely to cause injury or illness. This type of
    penalty accounted for approximately 60 percent of the penalties issued
    between 1996 and 2006. MSHA's new regulations eliminate the single
    penalty. A regular assessment is the agency's general penalty and ranges
    from $112 to $60,000. Special assessments are reserved for violations in
    which MSHA elects to waive the regular assessment and set another penalty
    consistent with the six statutory factors. For example, special
    assessments may be used when an operator fails to correct certain
    violations or notify MSHA of certain kinds of accidents. A special
    assessment can be as high as $220,000, but this is for the new flagrant
    violation established under the MINER Act; the maximum for most special
    assessments is also $60,000. Eligibility guidelines and assessment
    formulas for special and regular assessments are outlined in MSHA
    regulations and agency policies.

    ^36MSHA inspectors also determine whether mine operators have made good
    faith efforts to correct the violation, which results in a 10 percent
    reduction in the proposed penalty. Under regulations that were in effect
    through April 22, 2007, the good faith reduction was 30 percent.

    Table 4: Average Proposed Penalty by Gravity and Negligence Indicators,
    1996 to 2006

    Elements of gravity and           Percentage of citations Average proposed
    negligence                                         issued          penalty
    Gravity of violationa
    Likelihood of accident
    Accident occurred                                    0.2%          $12,324
    Highly likely to occur                               0.9%           $2,362
    Reasonably likely to occur                          38.6%             $367
    Unlikely to occur                                   55.5%              $74
    No likelihood                                        2.4%             $168
    Total                                              97.6%b
    Potential injury or illness
    Fatal                                                3.5%           $1,185
    Permanent injury                                     7.4%             $569
    Lost days                                           62.4%             $202
    No lost work days                                   24.4%              $77
    Total                                              97.7%b
    Number of miners affected
    0-1 miners                                            82%                c
    2-5 miners                                          10.8%                c
    6-9 miners                                           4.5%                c
    10 or more miners                                    2.7%                c
    Total                                              100.0%
    Negligence by mine operator
    Reckless                                             0.1%           $8,458
    High                                                 3.5%           $1,757
    Moderate                                            84.3%             $179
    Low                                                  9.4%              $91
    None                                                 0.3%             $454
    Total                                              97.6%b

    Source: GAO analysis of data MSHA penalty and violation data.

    Note: These data represent the points accumulated under the former
    assessment process. MSHA expects its new regulations to result in higher
    proposed penalty amounts for each of these categories.

    aEach subelement of gravity is an exclusive category.

    bPercentage does not add to 100 due to a small amount of missing data.

    cWe did not calculate the average proposed penalty for the number of
    miners, because most (75 percent) of the violations involved only one
    miner.

    MSHA recently changed its regulations governing civil penalty assessments
    to update them and increase proposed penalty amounts, and to implement the
    new civil penalty requirement of the MINER Act. The new regulations
    increase the points for most of the six statutory factors, and MSHA
    officials predicted that the new penalty structure will increase total
    penalty assessments by 234 percent. For example, these changes will
    increase the maximum points allotted for gravity from 30 to 88 points.
    MSHA officials asserted that these changes will likely lead to greater
    rates of compliance and subsequently a safer working environment for the
    nation's miners. As required by the rule-making process, MSHA conducted an
    economic analysis to measure the costs and benefits of the new
    regulations. In its analysis, MSHA estimated that if these changes had
    been in effect in 2005, the total violations for all mine types would have
    declined by 20 percent, from 116,673 to 93,422 violations.37 See table 5
    for an example of how MSHA would determine the penalty for a certain
    violation based on the six statutory factors under the previous and new
    penalty formulas.

    ^37Criteria and Procedures for Proposed Assessment of Civil Penalties;
    Final Rule, 72 Fed. Reg. 13,592, 13,629 (March 22, 2007) (codified at 30
    C.F.R. Part 100).

    Table 5: Example of How a Proposed Penalty Amount Could Be Determined
    Based on the Previous and Revised Standard Penalty Formulas

                                                    Points under Points under new
    Statutory factor                         previous formula          formula
    Operator's history of previous
    violations
    Mine had an average of about one                        8               10
    violation per inspection day
    Mine had 10 repeat violations in prior                  a                5
    15 months and averaged 0.04 repeat
    violations per inspection day
    Operator's size
    Mine produced over 2 million tons of                   10               15
    coal per year
    Company owning mine produced over 10                    5               10
    million tons of coal per year
    Negligence
    Moderate                                               15               20
    Gravity
    Likelihood of accident
    Highly likely to occur                                  7               40
    Severity of injury or illness
    Lost work days                                          3                5
    Number of miners affected
    2 miners                                                2                2
    Total points under previous and new                    50              107
    formula
    Total penalty under previous and new                 $878           $4,810
    formula

    Source: GAO analysis of MSHA data.

    Note: This example assumes that the penalty will not affect the operator's
    ability to remain in business, and therefore does not account for a
    reduction for this factor. In addition, this example assumes the mine
    operator does not get a good faith reduction in the penalty.

    aMSHA's new regulations added this as an additional element of the factor
    for the operator's history of previous violations.

    Many Contested Penalties Are Reduced Substantially Regardless of the Gravity of
    the Violation and the Degree of the Operator's Negligence

    Many of the proposed penalties contested by mine operators are reduced
    substantially through the appeals process, despite the initially
    determined gravity of the violation and the initially determined degree of
    the operator's negligence contributing to the violation. Between 1996 and
    2006, approximately 6 percent (31,589) of the penalties proposed by MSHA
    for violations of underground coal mine safety and health standards were
    contested by mine operators. Our analysis of MSHA's penalty data showed
    that over the last 10 years, the amounts of the proposed penalties
    contested by mine operators were typically much larger than those not
    contested and involved more serious health and safety violations. For
    example, the average amount of a contested penalty was $1,107, compared to
    an average of $176 for a noncontested penalty, and more than half of all
    contested penalties were for the most serious violations.38

    Almost half of all penalties contested by underground coal mine operators
    are reduced through the appeals process, even those involving the highest
    levels of gravity and negligence. From 1996 to 2006, 47 percent of all
    contested penalties (14,723 penalties) were decreased from the amount
    originally proposed by MSHA. On average, these penalties were reduced by
    about half of the amount initially proposed by MSHA using its standard
    formula. In addition, regardless of the levels of gravity and negligence
    found by MSHA's inspectors, penalties were reduced, on average, between 47
    percent and 66 percent. Proposed penalties assessed by MSHA based on the
    highest and lowest levels of gravity and negligence found by MSHA
    inspectors were reduced by the greatest amounts (see table 6).

    ^38Sixty-three percent of contested penalties are considered "significant
    and substantial," or "S&S," violations. An inspector designates violations
    as S&S if they are deemed at least reasonably likely to cause an injury
    that results in lost work days. This designation can trigger more serious
    sanctions, such as closing a portion of a mine or closing an entire mine.

    Table 6: Contested Penalty Reductions by Gravity and Negligence
    Indicators, 1996 to 2006

    Elements of gravity and         Percentage of contested Average percentage
    negligencea                 penalties that were reduced          reduction
    Gravity of violation
    Likelihood of accidentb
    Accident occurred                                 63.5%                59%
    Highly likely to occur                            65.5%                49%
    Reasonably likely to                              51.3%                47%
    occur
    Unlikely to occur                                 32.4%                54%
    No likelihood                                     45.7%                66%
    Potential injury or
    illnessb
    Fatal                                             59.4%                52%
    Permanent injury                                  57.4%                47%
    Lost days                                         46.5%                48%
    No lost work days                                 31.2%                57%
    Number of miners
    affectedb
    0-1 miners                                            c                  c
    2-9 miners                                            c                  c
    10 or more miners                                     c                  c
    Negligence by mine
    operatorb
    Reckless                                          68.8%                55%
    High                                              61.4%                50%
    Moderate                                          43.6%                48%
    Low                                               50.9%                49%
    None                                              55.8%                57%

    Source: GAO analysis of MSHA data.

    aInitial penalty proposals are based on the findings from mine inspections
    and are calculated using MSHA's standard formula. The entities involved in
    the appeals process may have altered the inspectors' findings, which could
    lead to a reduction in the penalty amount.

    bPercentages may not add to 100 due to rounding or a small amount of
    missing data.

    cWe did not calculate the average proposed penalty for the number of
    miners, because most (75 percent) of the violations involved only one
    miner.

    Entities Involved in the Appeals Process Apply the Statutory Factors to
    Determine Penalty Amounts, but Exercise Considerable Discretion

    While all of the entities involved in the appeals process--Labor's
    Solicitor's Office, MSHA's CLRs, and the Commission's ALJs--are required
    by law to apply the six statutory factors specified in the Mine Act, they
    are not legally obligated to use any particular method to set a final
    penalty amount when they determine that a reduction from MSHA's proposed
    penalty is appropriate. As a result, they have considerable discretion in
    deciding on the final penalty amount. Prior decisions by the Commission
    require ALJ decisions to be sufficiently explained.39 However, in some
    cases we reviewed, while the reasons supporting a reduction from MSHA's
    proposed penalty are clearly explained, the rationale for the final
    penalty amount is not always well documented.

    Officials from all three of the entities involved in the appeals process
    told us that, in determining the size of a final penalty, they apply the
    six statutory factors on a case-by-case basis and use their professional
    judgment. For example, officials from the Solicitor's Office and CLRs told
    us that, when appropriate, the Department of Labor generally views penalty
    settlements as being in the best interest of both the agency and the mine
    operators because settlements allow them to avoid costly litigation.40
    Attorneys from the Solicitor's Office also told us that they analyze the
    evidence presented by MSHA inspectors and mine operators and assess their
    chances of winning the case in deciding whether to settle a penalty or go
    to trial. For example, one attorney told us that many of the penalty
    amounts contained in settlement agreements are generally the result of
    negotiations between the Solicitor's Office and the mine operator. In
    commenting on a draft of this report, MSHA and the Solicitor's Office said
    that CLRs and attorneys may concede somewhat on the penalty amount in some
    settlement cases as long as future compliance with the standard, or
    another valid enforcement objective, is agreed to by the mine operator.

    ^39In August 2006, the Commission reminded ALJs of the importance of
    adequately documenting penalty decisions. Specifically, the Commission
    wrote "When . . . it is determined that penalties are appropriate which
    substantially diverge from those originally proposed, it behooves the
    Commission and its judges to provide a sufficient explanation of the bases
    underlying the penalties assessed by the Commission. If a sufficient
    explanation for the divergence is not provided, the credibility of the
    administrative scheme providing for the increase or lowering of penalties
    after contest may be jeopardized by an appearance of arbitrariness." Jim
    Walter Resources, Inc., 28 FMSHRC 579, 606-07 (August 2006) (citing
    Sellersburg Stone Co., 5 FMSHRC 287, 293 (March 1983)).

    ^40In addition to the general costs of litigation, in some cases, the
    Equal Access to Justice Act requires that the Department of Labor pay a
    mine operator's fees and expenses, including reasonable attorneys' fees,
    if the ALJ finds that the agency's position was not substantially
    justified, such as when an MSHA-proposed penalty is lowered significantly
    in formal proceedings. 5 U.S.C. S 504 and 29 C.F.R. Part 2704.

    Labor officials told us that, when the CLR program was created, CLRs were
    expected to handle approximately 30 percent of all contested cases.
    However, our analysis of the CLRs' caseloads indicated that, as of January
    2006, they were assigned only 14 percent of all open cases contested by
    mine operators. According to the CLRs, they generally take a similar
    approach to that taken by attorneys with the Labor Solicitor's Office in
    negotiating settlements. Both CLRs and Solicitor's Office staff told us
    that they are encouraged to use MSHA's standard formula to assess penalty
    amounts but using the formula is not required and is not standard
    practice. When the Solicitor's Office or a CLR is unable to negotiate a
    settlement or determines that it would not be appropriate to settle, the
    case goes to trial and an ALJ determines the final penalty amount. Several
    ALJs told us that they review the evidence provided by MSHA but the
    process for determining the final penalty amount relies greatly on their
    experience and expertise.

    In general, while the reasons supporting a reduction from MSHA's proposed
    penalty are clearly explained in ALJ decisions, the rationale for the
    final penalty amount is not always well documented. For example, in one
    case decided in October 2005, the ALJ reduced MSHA's proposed penalty from
    $50,000 to $10,000.41 Although the judge concluded that the gravity of the
    violation was less than MSHA had originally found, thereby supporting a
    penalty reduction, he appeared to agree with MSHA's assessment regarding
    the other five statutory factors, including MSHA's finding that the
    operator's degree of negligence was high.42

    Conclusions

    The risky conditions in underground coal mines were brought to the
    nation's attention early in 2006, and the sad consequences have become a
    reality for many Americans. As MSHA embarks on the reforms outlined in the
    MINER Act and other internal efforts to improve the safety of mines, it
    faces hurdles that will need to be overcome in order to assist the mining
    industry as it bears the daily responsibility for the safety and health of
    America's miners. The mining industry is changing: production continues to
    increase, technologies are evolving, and new workers are entering the
    mines to replace their experienced colleagues who are retiring. These
    changes call for a greater attention to safety from all entities
    involved--federal and state officials, mine operators, miners, and their
    representatives. Without adequate training, including practice using
    safety devices in simulated emergency conditions, miners may be unable to
    safely and confidently escape a mine. Further, absent adequate monitoring
    of instructors who provide this training, MSHA cannot determine whether
    all of its instructors are properly qualified or whether it has enough
    instructors to meet its needs. Perhaps most important, MSHA is unable to
    determine whether miners receive timely and appropriate training.

    ^41Wabash Mine Holding Co., 27 FMSHRC 672 (October 2005).

    ^42See also Jim Walter Resources, Inc., 28 FMSHRC 1068 (December 2006) and
    Jim Walter Resources, Inc., 28 FMSRC 579 (August 2006).

    The social, economic, and technological changes in the mining industry
    present challenges that will be difficult, if not impossible, for MSHA to
    address alone. MSHA and NIOSH have complementary roles, particularly in
    developing and approving technologies to help improve mine safety, and
    face similar challenges such as high rates of retirements. Yet, without
    having a more structured method of coordination, their shared knowledge
    base and research cannot be used to effectively speed the implementation
    of new safety technology in mines.

    Finally, given the trends over the past 10 years for penalties contested
    by mine operators, the higher proposed penalties under MSHA's new penalty
    structure will likely lead more operators to appeal. This reaction is also
    likely to increase the number of cases that are settled by Labor's
    Solicitor's Office, MSHA's CLRs, and the ALJs at the Commission using
    methods to determine final penalty amounts that are more subjective than
    penalties proposed using MSHA's standard formula. As a result, it is
    important that penalty decisions are transparent and contain the necessary
    information to understand how final penalty amounts are set. Without such
    information, it will be difficult to monitor their decisions over time to
    ensure that all of the entities involved in the appeals process are
    appropriately and consistently applying the six statutory factors in
    altering penalty amounts and that the impact of penalties in protecting
    miners' safety through greater compliance by mine operators is not
    diminished.

    Recommendations for Executive Action

    To help mines train their workers under simulated emergency conditions,
    the Secretary of Labor should direct MSHA to publicize information and
    available tools for training mine workers under such conditions. In
    addition, MSHA should periodically review and update this information, as
    appropriate.

    To help ensure that mine workers are adequately prepared for emergencies,
    MSHA should strengthen its monitoring of training. This monitoring should
    include

               o reviewing and standardizing districts' procedures for approving
               new instructors;
               o establishing continuing education requirements for instructors
               to help instructors maintain or improve their knowledge and
               skills;
               o improving the data in its records on approved instructors; and
               o developing a process for monitoring miner training that includes
               regularly evaluating training sessions, assessing how well
               learning objectives are being met, and providing feedback to
               instructors.

    To improve the effectiveness of information sharing between MSHA and
    NIOSH, we recommend that the Secretaries of Labor and Health and Human
    Services direct their respective agencies to work together to establish a
    formal memorandum of understanding to guide their coordination. In
    addition, the agencies should periodically review and update the
    memorandum, as appropriate.

    In order to ensure that there is transparency in penalty determinations,
    we recommend that the Department of Labor's Office of the Solicitor, MSHA,
    and the Commission take steps to ensure that the specific rationale for
    all final penalty amounts, including reductions from MSHA's proposed
    penalties, are adequately documented.

    Agency Comments

    We obtained comments on a draft of this report from MSHA, the Department
    of Labor's Office of the Solicitor, the Department of Health and Human
    Services, and the Federal Mine Safety and Health Review Commission. Their
    comments are reproduced in appendixes III, IV, and V. MSHA and the
    Solicitor also provided technical clarifications, which we incorporated as
    appropriate.

    MSHA, the Office of the Solicitor, the Department of Health and Human
    Services, and the Federal Mine Safety and Health Review Commission agreed
    with the recommendations addressed to each of their organizations. In
    addition, MSHA noted actions it has either begun or plans to take in
    implementing the recommendations. We commend MSHA for starting work to
    improve its oversight of the safety of underground coal mines.

    In response to our recommendation that MSHA publicize and periodically
    update information on training mine workers under simulated emergency
    conditions, MSHA agreed, and stated that it will develop a Web page for
    this purpose and will issue an information bulletin to mine operators
    about this Web-based resource. To provide mine operators with additional
    options, MSHA noted that it has asked NIOSH to examine methods of
    providing simulated emergency training and to consider the cost of these
    methods.

    In response to our recommendation that MSHA strengthen its monitoring of
    miner training, MSHA generally agreed and indicated that it will develop
    and implement standardized procedures for approving new instructors. In
    addition, it will develop an instructor evaluation plan to use in
    determining the effectiveness of training provided to miners. Regarding
    establishing continuing education requirements for approved instructors,
    MSHA indicated that it has asked NIOSH to review the effectiveness of such
    requirements. MSHA noted that this action may require regulatory changes.
    MSHA also explained that there are other avenues that instructors can use
    to stay current on mining issues, such as attending an annual conference
    dedicated to training resources for the industry. MSHA also recognized the
    need to improve the data it maintains on instructors and noted that it has
    plans to improve its tracking and dissemination of up-to-date information
    on approved instructors.

    In response to our recommendation that MSHA and NIOSH develop a memorandum
    of understanding, both agencies concurred with the need for a formal
    agreement and stated that such an agreement will help strengthen their
    coordination activities. MSHA noted that both agencies started the process
    of developing a memorandum of understanding in 2002 and stated that it
    will work with NIOSH to revitalize this effort and complete the process.

    MSHA, Labor's Office of the Solicitor, and the Commission agreed with our
    recommendation for improving the penalty appeals process. Each of them
    agreed that there needs to be transparency in penalty determinations and
    that the specific rationale need to be provided when penalties are reduced
    from the levels originally proposed. MSHA and the Solicitor agree that
    transparency is essential to ensure public confidence that the purposes of
    the Mine Act are fulfilled and that administration of the Mine Act is
    fair. They commented that they would formally remind CLRs and attorneys to
    ensure that the rationale for each civil penalty agreement is adequately
    documented in settlement agreements and case file notes. They also
    commented that internal audits of the CLR program have emphasized the need
    for adequate documentation to support settlement agreements.

    In respect to our characterization of the Washbash Mine Holding Co. case,
    the Commission disagreed with GAO's conclusions. We agree with the
    Commission that the reasons supporting the reduction are clearly
    explained. However, we continue to believe that the rationale for the
    final penalty amount was not well documented. In our analysis, we could
    not discern the specific reasons why the judge determined that $10,000 was
    the appropriate fine.

    We are sending copies of this report to the Secretaries of Labor and
    Health and Human Services, the Chief Commissioner of the Federal Mine
    Safety and Health Review Commission, relevant congressional committees,
    and other interested parties. Copies will be made available to others upon
    request. In addition, the report will be available at no charge on GAO's
    Web site at http://www.gao.gov . Please contact me at (202) 512-7215
    if you or your staff have any questions about this report. Other major
    contributors to this report are listed in appendix VI.

    Daniel Bertoni
    Director, Education, Workforce, and Income Security Issues

    List of Congressional Requesters

    The Honorable Robert C. Byrd
    Chairman
    Committee on Appropriations
    U. S. Senate

    The Honorable Edward M. Kennedy
    Chairman
    The Honorable Michael B. Enzi
    Ranking Member
    Committee on Health, Education, Labor, and Pensions
    U. S. Senate

    The Honorable Tom Harkin
    Chairman
    The Honorable Arlen Specter
    Ranking Member
    Subcommittee on Labor, Health and Human Services, Education and
    Related Agencies
    Committee on Appropriations
    U. S. Senate

    The Honorable Patty Murray
    Chair
    The Honorable Johnny Isakson
    Ranking Member
    Subcommittee on Employment and Workplace Safety
    Committee on Health, Education, Labor, and Pensions
    U. S. Senate

    The Honorable George Miller
    Chairman
    Committee on Education and Labor
    House of Representatives

    The Honorable John D. Rockefeller IV
    U. S. Senate

    The Honorable Shelley Moore Capito
    House of Representatives

    The Honorable Alan B. Mollohan
    House of Representatives

    The Honorable Nick Rahall
    House of Representatives

    Appendix I: Scope and Methodology

    To conduct this work, we reviewed relevant statutes, regulations, policy
    documents, decisions issued by the Commission and its administrative law
    judges (ALJ), and other materials. We spoke with Mine Safety and Health
    Administration (MSHA) officials in 6 of the 11 districts, including
    inspectors, conference litigation representatives (CLR), and district
    managers; and officials from the headquarters office, the National Mine
    Health and Safety Academy, Educational Policy and Development, the
    Educational Field Services, and certified trainers. We met with
    representatives from the Office of the Solicitor, including officials in
    the headquarters and regional offices, and interviewed the Chairman of the
    Federal Mine Safety and Health Review Commission, its Chief ALJ, and other
    Commission officials. Finally, we spoke with officials from universities,
    a technology manufacturer, the United Mine Workers of America, the
    National Mining Association, and the Joseph A. Holmes Safety Association.

    We visited three states to obtain more detailed and qualitative
    information regarding the experiences of state mine safety agencies, mine
    operators, and MSHA district offices in our research objectives. We
    conducted visits in Kentucky, Virginia, and West Virginia. In Kentucky, we
    met with state and MSHA district officials. In addition, we observed a
    mine rescue competition where we conducted interviews with mine rescue
    team members. In Virginia and West Virginia, we met with state and MSHA
    district officials. In addition, we visited three underground coal mines
    to observe mining operations and to talk with mine managers, mine rescue
    team members, and mine workers. We also spoke with state officials in
    Pennsylvania. These four states contain almost 90 percent of all
    underground coal mines in the United States. Finally, we met with
    researchers and other officials at the technical research centers operated
    by MSHA and the National Institute of Occupational Safety and Health
    (NIOSH).

    Survey of Underground Coal Mines

    Study Population and Sampling Design

    To determine the current state of underground coal mines' operations and
    challenges in preparing for and responding to mine emergencies, we
    surveyed a stratified random probability sample of 342 underground coal
    mines from a study population of 665 underground coal mines identified by
    MSHA as being active at the end of calendar year 2005. We selected our
    sample by five strata defined by the number of mine employees and the
    number of mines under the responsibility of a single contact. We included
    the last stratum in an attempt to ease the burden on the survey
    respondents. Close to 40 percent of the mines selected in the sample were
    out of scope for analysis due to closure by the time our survey fieldwork
    ended. Information on the coal mine population, the sample selected,
    out-of-scope mines, and the respondents across the five strata can be
    found in table 7. Ultimately, we received 146 completed, in-scope surveys,
    for an adjusted response rate of 69 percent.

    Table 7: Sample Disposition for Survey of Underground Coal Mines

                                                     Number
                                                         in              Adjusted
                                                     sample              response
                                                       that              rate for
                                        Total  Total   were              in-scope
    Stratum                     population sample out of   Number of     mines
    number  Stratum description       size   size  scope respondents (percent)
    1       Mine employs               180     88     48          26        65
               between 1 and 16
               workers
    2       Mine employs               152     82     38          30        68
               between 17 and 36
               workers
    3       Mine employs               147     78     25          36        68
               between 37 and 199
               workers
    4       Mine employs 200 or         49     49      6          34        79
               more workers
    5       Mine shares contact        137     45     16          20        69
               point with at least
               four other mines
    Total                              665    342    133         146       69a

    Source: GAO analysis of MSHA data.

    aTotal adjusted response rate is an average based on each stratum's
    response rate weighted by its in-scope population.

    Survey Development

    To inform the design of the survey questions, we consulted with mine
    officials, industry and labor organizations, and federal and state
    officials. In addition, we used documents and research about miner
    training and mine rescue. Finally, we referred to the recent mine
    evacuation regulations developed by MSHA and the Mine Improvement and New
    Emergency Response Act of 2006 to ensure we were collecting timely
    information on the operations at underground coal mines. A copy of the
    survey questionnaire can be found in appendix II.

    To verify the clarity, length of time of administration, and suitability
    of the questions, we pretested the questionnaire with mine safety
    officials at three mines. We revised the instrument based on the results
    of the pretests and the feedback we received.

    Administration of the Survey

    We used a self-administered mail-out questionnaire that was in the field
    between November 2006 and February 2007. We conducted several follow-up
    efforts to encourage a higher response rate: a reminder letter, a second
    mailing that included another copy of the questionnaire, and two efforts
    to contact nonrespondents by telephone. We ended data collection in
    February 2007.

    Nonsampling Error and Data Quality

    The practical difficulties of conducting any survey may introduce errors,
    commonly referred to as nonsampling errors. For example, difficulties such
    as how a particular question was interpreted or in the sources of
    information that are available to respondents can introduce unwanted
    variability into the survey results. We took steps in the development of
    the questionnaire, the data collection, and the data analysis to minimize
    these nonsampling errors.

    In addition to pretesting the questionnaire with relevant individuals to
    ensure questions were interpreted in a consistent manner, we edited all
    the surveys for consistency before they were sent for keypunching. All
    questionnaire responses were entered into our database and a random sample
    of the questionnaires was further verified for completeness and accuracy.
    In addition to the steps taken during the development of the survey and
    its administration, we performed computer analyses to identify
    inconsistencies and other indicators of errors. We established parameters
    for addressing inconsistent responses that included calling the respondent
    for clarification or treating the data as missing. In addition, all the
    computer syntax was peer-reviewed and verified by separate programmers to
    ensure that it was written and executed correctly.

    Estimates

    Estimates in this report are for the population of underground coal mines
    in the United States that were in operation at the end of 2005 and
    remained open during the course of the survey. Due to mine closure, some
    mines are not represented in these results. We found that smaller mines
    were more likely to have ceased operation than larger mines. Therefore, it
    is possible that different safety practices and challenges may exist for
    mines that closed.

    Sampling Errors

    The results of random samples like ours are subject to sampling errors
    that reflect the differences between the results obtained from the samples
    and the results that would have been obtained from a survey of the entire
    population under consideration. Because we surveyed a sample of
    underground coal mines, our results are estimates of the characteristics
    of this population and thus are subject to the sampling errors associated
    with samples of this size and type.

    Measurements of sampling errors are stated at a certain level of
    statistical confidence. GAO used the weighted results to make estimates
    about the entire population of underground coal mines. Our confidence in
    the precision of the results from this sample is expressed in 95 percent
    confidence intervals, which are intervals that are expected to contain the
    actual population values for 95 percent of the samples we could have
    drawn. As a result, we are 95 percent confident that each of the
    confidence intervals in this report will include the true values in the
    in-scope population. All percentage estimates for our sample have margins
    of error--widths of confidence intervals--of plus or minus 8 percentage
    points or less, at the 95 percent confidence level.

    Citation and Penalty Data

    To determine the average of proposed penalty amounts, the number of
    penalties contested, and the amount of the final penalties assessed on
    mine operators, as well as other violation information, we obtained data
    from the Mine Safety and Health Administration. We used data maintained in
    the MSHA Standardized Information System (MSIS). The data represent
    violations issued to mine operators and the associated actions taken on
    those violations (such as the proposed penalty, if the operator contested
    the violation, and if the final penalty was reduced) between January 1996
    and October 2006.

    To assess the reliability of the data, we (1) performed electronic testing
    of the relevant data elements, (2) reviewed related documentation, and (3)
    interviewed and worked closely with officials knowledgeable about the
    data. We determined that the data were sufficiently reliable for the
    purposes of this report.

    Appendix II: Survey of Underground Coal Mines

    Appendix III: Comments from the Department of Labor

    Appendix IV: Comments from the Department of Health & Human Services

    Appendix V: Comments from the Federal Mine Safety and Health Review
    Commission

    Appendix VI: GAO Contact and Acknowledgments

    GAO Contact

    Daniel Bertoni, Director, (202) 512-7215, bertonid@gao.gov

    Staff Acknowledgments

    Revae E. Moran, Assistant Director, and Sara L. Schibanoff,
    Analyst-in-Charge, managed this assignment. Other staff who made key
    contributions throughout the assignment are Joel A. Green, Jeremie C.
    Greer, Gillian M. Martin, Mary Roy, and Rachael C. Valliere. Sheila R.
    McCoy provided legal assistance. Cindy K. Gilbert, Nancy A. Hess,
    Catherine M. Hurley, and Shana B. Wallace assisted with the methodology
    and statistical analysis.

    (130552)

    GAO's Mission

    The Government Accountability Office, the audit, evaluation and
    investigative arm of Congress, exists to support Congress in meeting its
    constitutional responsibilities and to help improve the performance and
    accountability of the federal government for the American people. GAO
    examines the use of public funds; evaluates federal programs and policies;
    and provides analyses, recommendations, and other assistance to help
    Congress make informed oversight, policy, and funding decisions. GAO's
    commitment to good government is reflected in its core values of
    accountability, integrity, and reliability.

    Obtaining Copies of GAO Reports and Testimony

    The fastest and easiest way to obtain copies of GAO documents at no cost
    is through GAO's Web site ( www.gao.gov ). Each weekday, GAO posts
    newly released reports, testimony, and correspondence on its Web site. To
    have GAO e-mail you a list of newly posted products every afternoon, go to
    www.gao.gov and select "Subscribe to Updates."

    Order by Mail or Phone

    The first copy of each printed report is free. Additional copies are $2
    each. A check or money order should be made out to the Superintendent of
    Documents. GAO also accepts VISA and Mastercard. Orders for 100 or more
    copies mailed to a single address are discounted 25 percent. Orders should
    be sent to:

    U.S. Government Accountability Office 441 G Street NW, Room LM Washington,
    D.C. 20548

    To order by Phone: Voice: (202) 512-6000
    TDD: (202) 512-2537
    Fax: (202) 512-6061

    To Report Fraud, Waste, and Abuse in Federal Programs

    Contact:

    Web site: www.gao.gov/fraudnet/fraudnet.htm
    E-mail: fraudnet@gao.gov
    Automated answering system: (800) 424-5454 or (202) 512-7470

    Congressional Relations

    Gloria Jarmon, Managing Director, JarmonG@gao.gov (202) 512-4400 U.S.
    Government Accountability Office, 441 G Street NW, Room 7125 Washington,
    D.C. 20548

    Public Affairs

    Paul Anderson, Managing Director, AndersonP1@gao.gov (202) 512-4800
    U.S. Government Accountability Office, 441 G Street NW, Room 7149
    Washington, D.C. 20548

    www.gao.gov/cgi-bin/getrpt?GAO-07-622 .

    To view the full product, including the scope
    and methodology, click on the link above.

    For more information, contact Daniel Bertoni at (202) 512-7215 or
    bertonid@gao.gov.

    Highlights of [43]GAO-07-622 , a report to congressional requesters

    May 2007

    MINE SAFETY

    Better Oversight and Coordination by MSHA and Other Federal Agencies Could
    Improve Safety for Underground Coal Miners

    The Mine Safety and Health Administration (MSHA), the National Institute
    for Occupational Safety and Health (NIOSH), the Federal Mine Safety and
    Health Review Commission, the Department of Labor's Office of the
    Solicitor, the states, and the mining industry share responsibility for
    ensuring mine safety.

    GAO examined the challenges underground coal mines face in preparing for
    emergencies, how well MSHA oversees mine operators' training efforts, how
    well MSHA and NIOSH coordinate to enhance the development and approval of
    mine safety technology, and how civil penalties are assessed. To address
    these issues, GAO surveyed a representative sample of active underground
    coal mines, analyzed agency data, conducted site visits, and talked with
    agency officials and other experts. The survey results are estimated at
    the 95 percent confidence level.

    [44]What GAO Recommends

    GAO is making recommendations to strengthen the efforts of MSHA, Labor,
    NIOSH, and the Commission by improving mine operators' access to tools to
    train their workers, strengthening MSHA's oversight of training, improving
    the effectiveness of information sharing between MSHA and NIOSH, and
    ensuring that there is transparency in penalty appeal determinations. Each
    agency generally agreed with the recommendations in the report.

    Underground coal mine operators face significant challenges preparing for
    emergencies, including ensuring that miners receive realistic training and
    organizing mine rescue teams that satisfy new requirements. While mine
    operators recognize the importance of providing training in an environment
    that simulates an emergency, many of them are challenged by having limited
    access to special training facilities and meeting the cost of providing
    such training. MSHA has materials for providing specific hands-on training
    for mine emergencies, but it does not provide all mine operators with
    information and tools for training under simulated emergency conditions.
    In addition to the challenges of providing miners with realistic training,
    mine operators anticipated challenges in implementing the mine rescue team
    requirements in recent legislation, such as meeting the requirement to
    conduct training annually at each mine covered by a mine rescue team.

    MSHA approves mine operators' training plans and inspects their training
    records, but its oversight of miner training is hampered by several
    factors. MSHA has general guidelines for items to be considered when
    approving new instructors, but its standards are inconsistent, and it has
    no continuing education requirements for instructors. MSHA also does not
    have current information on its instructors and does not ensure that they
    keep their knowledge and skills up to date. In addition, MSHA does not
    adequately monitor instructors or evaluate training sessions, and does not
    assess how well miners are learning the skills being taught.

    MSHA and NIOSH have a common mission to improve the safety and health of
    coal miners, but do not have a current memorandum of understanding to
    guide their coordination efforts or formally involve each other in
    strategic planning efforts. As a result, coordination between the two
    agencies is largely informal and inconsistent. Most of the coordination
    that occurs is initiated by individual staff members or by outside
    parties. Such informal coordination may not be sufficient given the
    pending retirements of many engineers and scientists and other challenges
    that both agencies face.

    While most of the penalties proposed by MSHA are paid by mine operators
    without opposition, a small percentage of the cases involving more serious
    and higher dollar penalties are appealed, and those appealed are reduced
    significantly. Between 1996 and 2006, MSHA proposed assessing mine
    operators 506,707 penalties for violations of underground coal mine safety
    and health standards--at an average penalty amount of $234 per violation.
    MSHA uses a standard formula to propose penalties, but the other entities
    involved in the appeals process such as Labor's Solicitor's Office use
    considerable discretion in deciding on the final penalty amount.
    Approximately 6 percent (31,589) of the violations were appealed by mine
    operators. About half of the penalties for the appealed violations were
    reduced by an average of 49 percent, regardless of the seriousness of the
    gravity of the violation and the degree of operator's negligence.

    References

    Visible links
      33. file:///home/webmaster/infomgt/d07622.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-06-15
      43. file:///home/webmaster/infomgt/d07622.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-07-622
    *** End of document. ***