Mine Safety: MSHA's and Other Federal Agencies' Improved	 
Oversight Could Enhance Safety for Coal Miners (16-MAY-07,	 
GAO-07-855T).							 
                                                                 
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. In two	 
reports released today, 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, MSHA's coal mine inspector recruiting efforts,
and how civil penalties are assessed.				 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-07-855T					        
    ACCNO:   A69706						        
  TITLE:     Mine Safety: MSHA's and Other Federal Agencies' Improved 
Oversight Could Enhance Safety for Coal Miners			 
     DATE:   05/16/2007 
  SUBJECT:   Agency evaluation					 
	     Coal mining					 
	     Emergency preparedness				 
	     Employee training					 
	     Fines (penalties)					 
	     Inspection 					 
	     Mine safety					 
	     Mining accidents					 
	     Mining industry					 
	     Monitoring 					 
	     Occupational safety				 
	     Safety regulation					 
	     Safety standards					 
	     Strategic planning 				 

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GAO-07-855T

   

     * [1]Background
     * [2]Underground Coal Mines Face Challenges in Preparing Mine Wor
     * [3]MSHA Reviews Mines' Training Plans and Inspects Training Rec
     * [4]MSHA and NIOSH Lack a Formal Agreement to Guide Mine Safety
     * [5]MSHA Has Improved Its Hiring Process, but Its Human Capital
     * [6]Most Penalties Assessed by MSHA Are Paid without Opposition,
     * [7]GAO Contact and Staff Acknowledgments
     * [8]GAO's Mission
     * [9]Obtaining Copies of GAO Reports and Testimony

          * [10]Order by Mail or Phone

     * [11]To Report Fraud, Waste, and Abuse in Federal Programs
     * [12]Congressional Relations
     * [13]Public Affairs

Testimony

Before the Committee on Education and Labor, House of Representatives

United States Government Accountability Office

GAO

For Release on Delivery
Expected at 10:30 a.m. EDT
Wednesday, May 16, 2007

MINE SAFETY

MSHA's and Other Federal Agencies' Improved Oversight Could Enhance Safety
for Coal Miners

Statement of Daniel Bertoni, Director
Education, Workforce, and Income Security

GAO-07-855T

Mr. Chairman and Members of the Committee:

Thank you for inviting me here today to discuss worker safety in
underground coal mines. As you are aware, the tragic accidents that
occurred early last year brought the nation's attention to the perils
workers face in underground coal mining. In response, the Congress and the
Department of Labor's (Labor) Mine Safety and Health Administration (MSHA)
took steps to try to prevent future fatalities. The Mine Improvement and
New Emergency Response Act of 2006 (MINER Act) 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
tougher penalties--including a criminal penalty--for mine operators who
violate health and safety standards.^1 In addition, MSHA implemented new
standards aimed at instituting immediate safety and health improvements,
including requiring operators to provide safety training on evacuation
routes and opportunities for miners to learn how to react in certain kinds
of simulated emergency situations. ^2 Other federal agencies share
responsibilities for improving mine safety. These agencies include the
Office of Mine Safety and Health of the Department of Health and Human
Services' National Institute for Occupational Safety and Health (NIOSH),
the Department of Labor's Office of the Solicitor, and the Federal Mine
Safety and Health Review Commission.

In response to concerns about the safety of underground coal mines, my
testimony today will focus on five key issues:

           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,
           4. how MSHA has revised its recruiting and hiring of underground
           coal mine inspectors, and
           5. how civil penalties are assessed when underground coal mine
           operators violate safety and health standards.

^1Pub. L. 109-236.

^230 C.F.R. Parts 48, 50, and 75, Emergency Mine Evacuation; Final Rule,
71 Fed. Reg. 12,252 (March 9, 2006); 30 C.F.R. Parts 3, 48, 50, and 75,
Emergency Mine Evacuation; Final Rule, 71 Fed. Reg. 71,430 (December 8,
2006).

My comments are based on the findings of two reports to be released
today.^3 We conducted all of our work in accordance with generally
accepted government auditing standards.

In summary,

           o Underground coal mine operators reported facing significant
           challenges in 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 reported challenges such as having
           limited access to special training facilities and the cost of
           providing such training. In addition, mine operators reported that
           they anticipate challenges in implementing new mine rescue team
           requirements, such as conducting training at least annually at
           each mine the rescue team services.

           o MSHA approves mine operators' training plans and inspects their
           training records, but its oversight of miner training is hampered
           by several factors. For example, MSHA 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
           it does not assess how well miners are learning the skills being
           taught.

           o MSHA and NIOSH have a common mission to improve the safety and
           health of coal miners, but they do not have a current memorandum
           of understanding to guide their coordination efforts. As a result,
           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 MSHA
           and NIOSH engineers and scientists and other challenges both
           agencies face.
           o In 2004, MSHA began a new process for hiring mine inspectors,
           which has led to a number of improvements, such as being able to
           identify applicants who possess the basic skills needed to be
           successful inspectors and decreasing the time it takes to hire new
           inspectors. However, MSHA's human capital plan does not include a
           strategic approach for addressing the large number of retirements
           expected in the next 5 years.

           o 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 often reduced substantially. MSHA uses a
           standard formula to propose penalties, but the other entities
           involved in the appeals process use considerable discretion in
           deciding on the final penalty amount. Approximately 6 percent of
           the 506,707 penalties proposed by MSHA between 1996 and 2006 were
           appealed by mine operators. About half of the penalties for the
           appealed violations were reduced regardless of the level of
           gravity of the violation initially cited by MSHA or the degree of
           the mine operator's negligence initially cited. Appealed penalties
           were reduced by an average of 49 percent.

^3GAO, Mine Safety: Better Oversight and Coordination by MSHA and Other
Federal Agencies Could Improve Safety for Underground Coal Miners,
[14]GAO-07-622 (Washington, D.C.: May 16, 2007); 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, [15]GAO-07-704R (Washington, D.C.: May 16, 2007).

In our reports released today, we are making a number of recommendations
to improve mine operators' access to information and tools for training
their workers, strengthen MSHA's oversight of training, improve the
effectiveness of information sharing between MSHA and NIOSH, strengthen
MSHA's workforce planning, and ensure transparency in penalty appeal
determinations.

Background

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.^4 When MSHA inspectors observe violations
of federal health and safety standards, they are required to issue a
citation to the coal mine operator.^5 Even if an operator does not agree
with the violation or the penalty amount, the operator must resolve the
problems within the time frame set by the inspector.

^4Mines that are recognized as more dangerous, such as those containing
high levels of methane gas, are inspected more frequently.

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.

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. MSHA issued
new requirements in March 2006^6 that direct mine operators to conduct
mine emergency evacuation drills every 90 days, including drills that
simulate actual emergency conditions; 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.^7 Based on our survey completed in February 2007,
almost all mines had conducted evacuation drills and installed lifelines,
but we estimate that half of the mines had not conducted drills in
environments that simulated actual emergency situations.^8 According to
the survey, simulated mine emergency training presents the greatest
challenge in preparing miners for and responding to mine emergencies.
Specifically, the most common 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. 1).

^5MSHA 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.

^6The new requirements were finalized in December 2006, with some
modifications and clarifications.

^7To ensure that four major scenarios--fire, explosion, gas, and water
inundation--are covered each year, the final rule requires that a
different scenario be used each quarter in conducting evacuation drills.

^8Percentage estimates are based on a sample and are subject to sampling
error. See [16]GAO-07-622 for more information on the survey methodology.
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.

Figure 1: Mines' Assessment of Challenges in Preparing Workers for Mine
Emergencies

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, that mine operators can obtain upon
request. For example, to support the new standards issued in March that
require miners to train with breathing devices, MSHA distributed a
training packet to all underground coal mines and appropriate state
grantees.^9 However, MSHA does not provide all mine operators with
critical information on how to provide training in simulated emergency
environments such as smoke-filled mines or information on resources that
are available for providing such training. Some mine operators use a
number of techniques to simulate emergency conditions, but other mine
operators may be unaware of them.

^9The 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.

Based on our survey, cost concerns and opportunities for conducting
simulated training with all stakeholders are the greatest challenges in
preparing rescue teams for mine emergencies (see fig. 2).

Figure 2: Mines' Assessment of Rescue Team Challenges in Preparing for
Mine Emergencies

Mine operators also 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.
Specifically, mine operators pointed to the requirement that teams train
at least annually at the mines they are responsible for covering. This
change could present a particular challenge for mine rescue teams in
several key coal mining states that serve many or all of the states'
mines. 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.

Some mine operators have already started making changes to their mine
rescue teams based on the MINER Act, while others are taking a more
cautious approach, given the costs of training and equipping new rescue
teams. For example, one company that operates multiple mines reported that
it was creating new backup mine rescue teams to satisfy the new
requirement that rescue teams be within 1 hour travel time from the mines
they serve. 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.^10 For
example, the extent of the required training at each mine could affect how
mine operators designate rescue teams.

^10MSHA 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, which are due in 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.

           o Inconsistent instructor approval standards

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. In addition, the approval
procedures are not standardized across MSHA's 11 coal districts, according
to MSHA officials. For example, some districts grant provisional authority
to new instructors only if they can be monitored by MSHA staff. Other
districts grant provisional approval for individuals to teach specific
courses but, according to MSHA officials, may not monitor these
instructors' teaching skills. According to MSHA officials, staff resources
limit districts' ability to monitor applicants' teaching skills.

           o Lack of up-to-date information on approved 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.

           o No continuing education requirements for approved 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.

           o Limited monitoring and evaluation of training sessions

According to MSHA officials, the agency monitors few miner training
sessions relative to the number conducted, and instructor evaluations
occur on an ad hoc basis. According to mine operators and trainers, MSHA
rarely oversees training, and it monitors sessions primarily for
enforcement purposes rather than to enhance instructors' knowledge and
abilities. In addition, many of the training sessions occur on the
weekends, when MSHA staff do not normally 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 seek feedback
on training sessions from their workers. As a result, 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 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.

MSHA and NIOSH currently lack a 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.^11 In 1978,
NIOSH's predecessor and MSHA had a signed memorandum of understanding that
specified how they would coordinate to ensure that technology resulting
from mine safety research would be used to the fullest extent.^12 The
memorandum embodied many of the key practices identified in prior GAO work
that can help federal agencies enhance and sustain their collaborative
efforts, such as defining roles and responsibilities and developing joint
strategies. However, the memorandum is no longer used, and MSHA officials
were unaware of any plan to update the document. 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.

^11We 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, [17]GAO-06-15 , (Washington,
D.C.: October 21, 2005).

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. As at many
federal agencies, MSHA and NIOSH have a large proportion of employees,
including many engineers and scientists, who are eligible to retire over
the next several years. MSHA data show 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. Similarly, about
half of NIOSH's employees--most of whom are scientists and engineers--are
eligible to retire in 5 years.

In addition, MSHA and NIOSH face other challenges that require them to
work more closely together, particularly in developing and approving
safety technologies under tight time frames. An influx of new and
inexperienced miners brought on due to 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
promising new safety technology. 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
study the use of refuge chambers for miners and requires MSHA to review
the results of NIOSH's work to determine what actions, such as making
regulatory changes, are appropriate. Both agencies must take action within
a relatively short period of time.^13

12This 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 MOU was updated in 1978
after MESA was transferred to the Department of Labor and renamed MSHA.

MSHA Has Improved Its Hiring Process, but Its Human Capital Strategic Plan Does
Not Adequately Project or Address Its Future Workforce Needs

While MSHA has taken significant steps to improve its hiring process, the
agency's human capital plan does not include a strategic approach for
addressing the large number of retirements expected over the next 5 years.
In 2004, MSHA began using the Federal Career Intern Program (FCIP) to hire
new mine inspectors, which has resulted in a number of improvements to the
hiring and recruitment process, such as hiring new inspectors more
quickly. Since it began using the program, MSHA has hired 301 interns, 236
of whom are coal mine inspector trainees.^14 Through the FCIP, MSHA
developed a process for assessing applicants' skills, conducting
interviews, and providing applicants with immediate feedback on their
aptitude during 1-day job fairs held in locations around the country. As
of October 2004, all applicants for inspector positions must attend job
fairs and pass a test on basic math and writing skills before interviewing
with MSHA. MSHA reported that this screening process has helped the agency
maximize its resources, since the exams identify applicants who do not
have the basic skills needed to become a successful inspector at an early
stage of the hiring process. For example, of the 1,256 applicants tested
in 2005 and 2006, 49 percent failed either the math or written exam, or
both. MSHA's previous hiring process considered experience over basic
skills, and officials told us that this resulted in some new hires with
significant mining experience but weak reading and writing skills. As a
result, MSHA spent time during new mine inspector training teaching these
basic skills.

MSHA officials reported that this new approach has reduced the amount of
time it takes to hire a new mine inspector from up to 180 days to 45 days
or less.^15 In addition, the Office of Personnel Management approved
MSHA's request to hire mine inspectors through the FCIP under a broader
range of pay scale levels, which allows the agency to hire individuals
with different experiences.^16 For example, an applicant might have little
experience in mining but possess relevant experience in construction and
electrical engineering. This applicant would be hired as a mine inspector
trainee at the lower end of the pay scale and be given additional training
in areas specific to mine health and safety. Further, MSHA officials
commented that the job fairs have helped the agency reduce the number of
interagency transfers that occurred under its old hiring process, which
was a significant problem. Since job fairs are held in the locations where
applicants are being sought and applicants must attend the job fairs in
person, they tend to live in those communities and are less likely to
request a transfer to another location once they are hired.^17

13NIOSH 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.

^14These data are as of February 2007. The noncoal interns were hired as
inspector trainees for metal/nonmetal mining operations.

^15According to an MSHA human resources official, this time frame begins
when an applicant receives a job offer and includes time for the agency to
review the results from a medical exam and drug test. It does not include
any time that an applicant might be placed on a waiting list if the
district does not have a job opening available.

Appointments to the FCIP are generally for 2 years, at which point the
intern may be offered a permanent position.^18 During the internship, new
hires are required to participate in a formal training program, which
consists of training provided by the Mine Academy and structured
on-the-job training. However, district managers and Mine Academy officials
agreed that, realistically, new inspectors can take up to 5 years to
become fully competent and confident in their roles as underground coal
mine inspectors.

While the improvements MSHA has made to its recruiting process are an
important part of addressing impending retirements, the agency has not
developed a long-term strategy for replacing mine inspectors. MSHA
estimates that over 40 percent of its inspectors will be eligible for
retirement by 2012 (see table 1), and agency officials told us that in the
last 3 years, between 32 and 47 percent of the coal mine enforcement
employees eligible to retire actually did so in the first year of
eligibility.

^16MSHA can offer new mine inspectors positions under the government
general schedule (GS) that range from GS-5 to GS-11. As of January 2007,
the potential pay ranged from $25,623 to $61,068.

^17For example, between October 2006 and April 2007, MSHA held job fairs
in each of its 11 coal mine districts.

^18Inspectors with relatively little experience (and hired at the lower
end of the pay scale) participate in the FCIP longer--3 years instead of 2
years--to give the agency time to assess their performance and knowledge
before a decision is made on whether to convert them to permanent employee
status.

Table 1: Number of Underground Coal Mine Inspectors and Those Eligible for
Retirement by 2012

                                             District office
                             1 2  3   4   5   6   7   8   9   10   11   Total
Number of underground       6  38  39  71  35  56  52   24  26  16  14 377 
coal mine inspectors                                                       
Number of underground       3  23  15  36  12  16  13   10  13   8   5 154 
coal mine inspectors                                                       
eligible to retire within                                                  
5 years                                                                    
Percentage eligible to    50% 61% 38% 51% 34% 29% 25%  42% 50% 50% 36% 41% 
retire within 5 years                                                      

Source: GAO analysis of MSHA data.

Note: Data are as of January 31, 2007.

District officials expressed concern over loss of highly experienced coal
mine inspectors and the impact such retirements can have on achieving the
goals of the agency. For example, one district official told us that
recent retirements have left the district short-handed and expressed
concern over the inspectors' ability to complete the required annual mine
inspections on time.

While MSHA human resources officials told us about steps they are taking
to mitigate the turnover, the agency has not developed a strategic plan
that clearly links measurable outcomes to the mission and goals of the
agency. In our review of the plan and discussions with MSHA officials, the
agency has not yet demonstrated how it is planning for its future needs,
what targets and goals are established to meet those needs, and how the
goals will be monitored. For example, given the amount of time needed to
train new inspectors, it is not clear how the agency will take into
account the potential increases in future hiring and the time necessary to
fully train replacements.

GAO has reported on effective strategies for workforce planning that
require a more strategic approach to meeting the challenges of the
future.^19 Among other elements, strategic planning serves as a tool to
help agencies address challenges in a manner that is clearly linked to
achieving their mission and goals. For example, by using data to make
long-term projections, an agency can design a transition program to ensure
that experienced employees are available in critical areas of the agency
and that the institutional knowledge would not be lost because of
turnover. Further, the agency can revisit the projections on a regular
basis and use the information to address broader agency goals for
improvement.

^19GAO, Human Capital: Federal Workforce Challenges in the 21st Century,
[18]GAO-07-556T (Washington, D.C.: March 6, 2007); GAO, Human Capital: Key
Principles for Effective Strategic Workforce Planning, [19]GAO-04-39
(Washington, D.C.: Dec. 11, 2003).

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

Most of the penalties proposed by MSHA are paid by mine operators without
opposition, but a small percentage of more serious and higher-dollar
penalties are appealed, and many of those appealed are reduced
significantly. In order to determine the amount of a proposed penalty,
MSHA uses a standard formula that generally results in larger penalties
being proposed for more serious violations. MSHA assigns point values to
each of the six broad factors outlined in the Mine Act, and two of these
factors--whether the operator was negligent and the gravity of the
violation--carry the greatest weight in deciding the amount of the
proposed penalty.^20 MSHA inspectors are responsible for making an initial
determination regarding the magnitude of these two elements during their
inspections.^21 After an inspector issues a citation and makes an initial
finding regarding the gravity and negligence of the violation, MSHA
determines the magnitude of the remaining four factors and tallies the
points to determine the proposed penalty amount. Between 1996 and 2006,
MSHA proposed 506,707 penalties for safety and health violations, and the
average penalty was $234 per violation. Table 2 details the range of
average penalties, by degree of gravity and negligence, proposed by MSHA
from 1996 through 2006.

^20Under 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.

^21MSHA 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 2: 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 violation^a                                                     
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 will
increase the points for most of the six statutory factors, and MSHA
officials predicted that the new penalty structure will increase total
proposed penalties 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.

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, and about half of the
contested penalties were reduced. 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.^22 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.^23

While all of the entities involved in the appeals process--the Labor's
Solicitor's Office, MSHA's conference litigation representatives (CLR)^24,
and the Commission's administrative law judges (ALJ)--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 determine 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. 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.^25 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 case or go to trial.

^22Sixty-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.

^23For more detailed information about penalty reductions, see
[20]GAO-07-622 .

^24CLRs 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.

Prior decisions by the Commission require ALJ decisions to be sufficiently
explained.^26 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.
For example, in one case decided in October 2005, the ALJ reduced MSHA's
proposed penalty from $50,000 to $10,000.^27 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.^28

25In 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.

^26In 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)).

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

In conclusion, the events of the last year heightened interest in
protecting miners and preparing them for the perils in their workplace.
While Congress, federal and state officials, mine operators, miners and
their representatives have taken important steps to improve safety in
mines, more can be done in several areas. First, without assistance for
mine operators in providing training under simulated emergency conditions
and adequate monitoring of instructors and the training miners receive,
miners may not be able to safely and confidently escape a mine. Further,
the high rates of retirement eligibility among MSHA and NIOSH scientists
and engineers as well as the need to work together under tight time frames
may render current informal coordination ineffective, thus hampering the
agencies' efforts to speed the implementation of new safety technology in
mines. Similarly, the expected high attrition among MSHA's inspector
corps, coupled with the amount of time needed to train new inspectors to
become proficient at their duties, calls for a more strategic approach.
Absent a clear plan to address expected turnover, MSHA could jeopardize
its success to date in reforming the inspector recruitment and hiring
process.

Finally, given the trends over the past 10 years, the higher proposed
penalties under MSHA's new penalty structure will likely lead more
operators to appeal. As a result, it is important that decisions on
contested penalties are transparent and contain the necessary information
to understand how final penalty amounts are determined. 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.

In the reports, we made recommendations to the Secretaries of Labor and
Health and Human Services, and the Chairman of the Federal Mine Safety and
Health Review Commission. These recommendations are designed to strengthen
the efforts of Labor, MSHA, NIOSH, and the Commission by

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

           o improving mine operators' access to information and tools for
           training their workers,

           o strengthening MSHA's oversight of training,

           o improving the effectiveness of information sharing between MSHA
           and NIOSH,

           o strengthening MSHA' s human capital strategic planning efforts,
           and

           o ensuring that there is transparency in final penalty amounts for
           appealed cases.

Each agency generally agreed with the recommendations after reviewing a
draft of the reports.

Mr. Chairman, this concludes my statement. I will be pleased to respond to
any questions you or other members of the committee may have.

GAO Contact and Staff Acknowledgments

For further information, please contact Daniel Bertoni at (202) 512-7215.
Individuals making key contributions to this testimony include Revae
Moran, Sara L. Schibanoff, and Rachael C. Valliere.

(130674)

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www.gao.gov/cgi-bin/getrpt?GAO-07-855T .

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Highlights of [28]GAO-07-855T , a testimony before the Committee on
Education and Labor, House of Representatives

May 16, 2007

MINE SAFETY

MSHA's and Other Federal Agencies' Improved Oversight Could Enhance Safety
for 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.

In two reports released today, 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, MSHA's coal mine
inspector recruiting efforts, and how civil penalties are assessed.

[29]What GAO Recommends

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

Underground coal mine operators reported facing significant challenges in
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
reported challenges such as limited access to special training facilities
and the cost of providing such training. In addition, mine operators
reported that they anticipate challenges in implementing new mine rescue
team requirements, such as conducting training annually at each mine the
rescue team services.

MSHA approves mine operators' training plans and inspects their training
records, but its oversight of miner training is hampered by several
factors. For example, MSHA 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 they do not have a current memorandum of understanding to
guide their coordination efforts. As a result, 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 MSHA and NIOSH engineers and scientists and
other challenges both agencies face.

In 2004, MSHA began a new process for hiring mine inspectors, which has
led to a number of improvements, such as being able to identify applicants
who possess the basic skills needed to be successful inspectors and
decreasing the time it takes to hire new inspectors. However, MSHA'shuman
capital plan does not include a strategic approach for addressing the
large number of retirements expected in the next 5 years.

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 often
reduced significantly. MSHA uses a standard formula to propose penalties,
but the other entities involved in the appeals process use considerable
discretion in deciding on the final penalty amount. Approximately 6
percent of the 506,707 penalties proposed by MSHA between 1996 and 2006
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 level of gravity of the violation initially cited by MSHA or the
degree of the mine operator's negligence initially cited.

References

Visible links
  14. http://www.gao.gov/cgi-bin/getrpt?GAO-07-622
  15. http://www.gao.gov/cgi-bin/getrpt?GAO-07-704R
  16. http://www.gao.gov/cgi-bin/getrpt?GAO-07-622
  17. http://www.gao.gov/cgi-bin/getrpt?GAO-06-15
  18. http://www.gao.gov/cgi-bin/getrpt?GAO-07-556T
  19. http://www.gao.gov/cgi-bin/getrpt?GAO-04-39
  20. http://www.gao.gov/cgi-bin/getrpt?GAO-07-622
  21. http://www.gao.gov/
  28. http://www.gao.gov/cgi-bin/getrpt?GAO-07-855T
*** End of document. ***