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
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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
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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, [email protected]
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)
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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
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