By Art Sanda

It was the paradoxical nature of assessments by some critics of the coal industry and its oversight agency on the federal level, MSHA, that led to the door of Kevin Stricklin, Administrator of the Mine Safety and Health Administration.

On one hand, the success of a coal company’s health and safety effort is measured by the reduction in the number of fatalities and injuries and, in no small part, a commensurate reduction in the numbers and the severity of citations and assessments.

On the other hand, critics of MSHA point to any decrease in the number of citations and the severity of the penalties as evidence that MSHA is not doing its job. The industry is damned if it doesn’t reduce its infractions, MSHA is damned if it doesn’t increase its written violations and fines. It’s enough to turn a dam builder’s head, but not Stricklin’s.

“One would expect the numbers of both will trend downward,” Stricklin offered, “but not together and not immediately. Until recently, the citation/assessment process lacked real teeth, but Congress has changed that. With passage of the Miner Act in 2006, the amount of money, the size of the assessments, has removed them from being just another cost of doing business for the mining company.” No longer is it a matter of simply being a few cents per ton of coal mined.

“If other incentives don’t accomplish it, somewhere along the line compliance financially becomes a must, ergo violations then will trend downward. But that is not our role, not our real role,” Stricklin stressed. “The role of MSHA is not to write more or fewer violations, not to impose greater or smaller assessments nor to collect more or fewer fines. Our role is protecting the miner. Period. Citations, assessments, fines those are just some of the tools available to us in accomplishing that.

“Personally, I believe we are doing a lot of good things but, when disasters like Crandall Creek strike, the human drama sells newspapers and gets the public interest. I don’t know exactly why it does to the extent it does, but it seems 30 fatalities in a year today brings about a larger reaction than several hundred did 20 years ago. Perhaps it is exactly because we, and the industry, have been doing a better job and, in doing so, more has come to be expected of us.”

MSHA of today was created by the 1977 Coal Mine Safety and Health Act and moved to the Department of Labor from the Department of the Interior. Interior had had responsibility over MSHA’s predecessor, MESA, the Mine Enforcement and Safety Administration, since its creation under the 1969 Coal Mine Safety and Health Act. Prior to that, what federal mining activities there were fell under the Bureau of Mines, though that was limited to research and development activities, not inspection and enforcement. The history is longer and more involved still.

Though a Federal Mining Bureau existed as early as 1865, the first federal statute dealing with miner health and safety wasn’t passed until 1891. In 1907, there were 18 coal mine disasters in the United States, a disaster being defined as five or more lives lost, in which a total of 3,242 coal miners were killed — Black December was the worst month in the history of U.S. coal mining; five disasters combined claiming more than 700 lives — causing an aroused Congress to create the U.S. Bureau of Mines. However, the Bureau was given no authority to inspect coal mines and actually was denied the authority even to enter them.

That didn’t change until after 1940, following the deaths of 257 coal miners in four separate methane gas explosions, when the 47^th Congress in 1941 passed Public Law 49 authorizing federal inspection of coal mines. However, the new law gave neither authority for the establishment of standards nor the authority to enforce compliance with any standards or recommendations of the Secretary of the Interior under whose authority mining fell.

Eleven years later, in 1952, following the deaths of 119 coal miners the previous year in a Frankford, IL coal mine explosion, the first Federal Mine Safety Code was passed, although a section in the law exempted small mines, those with fewer than 14 employees. That exemption was removed with passage of the 1969 Federal Mine Health and Safety Act after 22 coal miners died in 1967 and 311 in 1968, 78 of whom died in the Farmington, WV mine explosion.

While the loss of life and mining disasters were prodding changes in the laws affecting coal, metal and non-metal mines continued to play under a different set of rules until the 1972 Sunshine Silver Mine disaster in Idaho claimed the lives of 91 miners from carbon monoxide asphyxiation. At the same time, there was concern that no one agency, in this instance the Bureau of Mines, could serve two masters: One being the need to help develop new ways to meet the nation’s rising energy needs and the other the enforcement of laws governing one of the major sources of that energy, coal.

As a result, in 1973 the Department of the Interior pulled coal miner safety and health from the Bureau and put it under the newly created Mine Enforcement and Safety and Health Administration, MESA. Then, the continued high incidence of miner deaths in metal and non-metal mines vis-à-vis coal mining led four years later to passage of the Federal Mine Safety and Health Act of 1977.

The 1977 Act accomplished three major things: It placed metal and non-metal under the same federal mining laws as coal mining; it shifted responsibility for implementation of the act from the Department of the Interior to the Department of Labor, and it transformed MESA into MSHA, the Mine Safety and Health Administration. At the same time, the Act strengthened MSHA’s inspection and enforcement authority and replaced discretionary financial penalties with mandatory penalties.

“Unfortunately,” Stricklin noted, “historically, major progress in mine safety and health and enactment of better and more responsive rules, regulations and laws comes only after mine disasters, not before. The most recent example of this was the Supplemental MINER Act proposed earlier this year following the Crandall Canyon disaster — the entombment of six miners and the deaths of three rescue crew members — but before that, passage of the Mine Improvement and New Emergency Response (MINER) Act of 2006 had followed 12 miners losing their lives at the Sago Mine and two at the Alma Mine, both in West Virginia, and five at the Darby Mine in Kentucky, all in the first half of the year.”

The MINER Act, signed into law by President Bush on June 15, 2006, was described at the time by MSHA as being “the most significant mine safety legislation in 30 years.”  Among other things, the MINER Act requires all mining companies to develop an emergency response plan specific to each mine they operate and requires that every mine have at least two mine rescue teams within an hour’s driving distance. The Act also calls for studies into ways to enhance mine safety; the establishment of a new office with NIOSH (National Institute for Occupational Safety and Health) devoted to improving mine safety, and underground wireless two-way communication and electronic tracing systems within three years, as well as scholarship and grant programs to attract people to the mining industry as well as to MSHA itself.

“In recent years,” Stricklin said, “we’ve experienced the same problem as the industry, a dwindling experienced work force exacerbated by the difficulty of attracting replacement workers as well as expanding the number of inspectors in the field, though it has been getting better. Presently, we have 223 trainees, inspectors-to-be who aren’t yet ready for the AR cards, authorized representatives, those who can issue citations. We had been treading water, working a lot of overtime to get our inspections done,” he said.

“It takes a year to a year-and-a-half from date of hire to inspector — at one point, we had more trainees than we had inspectors — but by July, we’ll be in better shape. We’re turning the corner and feeling pretty good about it, happy that shortly we will be able to become pro-active rather than reactive.”

Minimally, to become an AR card-carrying MSHA inspector requires five years mining experience, or a four-year degree and two years’ experience. Additionally, the prospective inspector must pass MSHA’s “job fair,” which includes written math and English tests, followed by the interview process and physical. Once hired, there is a two-year probationary period during which the future inspector spends half the time at the MSHA Academy in Beckley, WV and half the time with an experienced inspector at particular field offices. Before the AR card is issued, the supervisor in the field office must determine the individual has demonstrated the ability to be on his or her own and a letter from the inspector-trainer, along with the individual’s grades, are sent to Stricklin. “Then I agree or disagree that he or she should receive an AR card,” Stricklin said.

“After all this,” he continued, “we still pick and choose where we send them. We certainly don’t want to send them to the biggest and baddest operations on their own, though we may send them with a seasoned inspector. Typically though, initially we send them to smaller mines without a whole lot of issues, working them in slowly before we feed them to the lions.

“One of the hardest things to get across to new inspectors is that, when they walk onto the property, everyone looks to them as experts,” Stricklin said. “To those at the mines, MSHA is all-knowing, ‘Whatever you want to know about mining, ask them and they’ll tell you.’ I stress to new inspectors, as well as experienced inspectors, they should not be afraid to say: ‘I don’t know.’ but then also be sure they get the answer and get it back to them, such as what’s new under the 2006 MINER Act.

“Do I agree that the MINER Act was more knee-jerk reaction than good law? Absolutely not,” said Stricklin. “There are some who think it was done hastily, but I’m not one of them. It had been a while since passage of the 1977 Miner Act. Technologies have advanced significantly since then and it simply was time for some changes. Unfortunately, as always, these changes, too, came about after serious incidents occurred.

“Despite what some think,” he added, “federal law is well thought out and, typically, industry and labor are contacted before Congress votes, so they do have some sort of input, particularly the large industry groups — the National Mining Association, the Bituminous Coal Operators — and the United Mine Workers of America. Perhaps there were some smaller mine operators who were not given the opportunity to comment, there may be some cases where that is true, but I can’t believe the industry as a whole did not have their opportunity to speak.”

Stricklin went from certain to adamant when he asked if there was an agenda within MSHA to force the smaller coal operator out of business, as has been contended by some small operators. “There is no agenda on MSHA’s part to do that, none,” he unequivocally stated. “It’s difficult to write one law for every coal mine in the country but I assure you, no law ever has been passed to force the small operator out of business, nor any regulation formulated with that purpose in mind. Meeting the country’s energy requirements means getting all the coal possible from all sources available, safely. I tell our guys and gals out in the field, enforce the law the same for everyone, equally, small and large.”

While enforcement of the law is to be equal, as Stricklin explained it the penalties for violating it are not. “There is a formula, a system,” he said. “It’s called Part 100, under which we take into consideration the size of the operation, the number of employees, the seriousness of the offense and repetitiveness. It is expected the smaller operator will pay less, except when repetitiveness sets in.”

According to Stricklin, one of the main features of the MINER Act is the teeth it put into assessments. At the time of its passage, MSHA said the act increases both civil and criminal penalties and gives MSHA the ability to temporarily close a mine when penalties or fines are not paid. “At the same time,” Stricklin added, “since coming onboard in the fall of 2006 (as Assistant Secretary of Labor for Mine Safety and Health), Richard Stickler let it be known he felt we should be making greater use of the pattern of violation (POV) provision of the law; which we have been doing, full speed.”

When an operator exhibits a pattern of violations — repeat offenses for the same or similar violation — he can be placed on a Pattern of Violation list. Once on it, any S&S (serious and substantial) violation is an order of withdrawal, meaning the miners immediately must be removed from the mine and that mine remains down until the violation is corrected.

“That,” Stricklin said, “is a substantial penalty. Right now, there are 18 mines that have been notified they are in danger of being put on the POV list. To prevent that, each of those mines must attain a 30% reduction in S&S violations. Right now, 15 of those18 mines are below that threshold and three have not attained it. At the end of this month, the MSHA District Managers involved will provide me with their recommendations regarding all 18 operations and I’ll decide which, if any, of those operations will go on POV status.

“This is the second go-around for us utilizing POVs,” Stricklin continued. “Last year, eight of the nine operations that had been warned they faced going on POV status made the threshold. The one that hadn’t had a change in ownership and, because of that, that operation is among the 18 now being evaluated. So far,” he added, “we have not had a single operation actually go on POV status; the threat alone seems to be having its effect, and that’s good. Our objective is not to close mines down, our objective is to make and keep mines safe for the miner and, in doing that, fulfilling our role of keeping the miner safe.”

In accomplishing that, MSHA field operations consists of 11 Districts, each with a District Manager, from which arises the complaint of there not being one MSHA but rather 11, that each District Manager is autonomous. “I agree with that to a certain extent,” Stricklin said. “A District Manager has to have some autonomy, he has to be able to call his own shots.

“For example, take District 3 in Morgantown, WV. There you have the Pittsburgh seam — eight feet thick, a weak roof and ultra gassy. Then you have District 7 in Kentucky, 24-inch seams, sandstone top and no gas. Or out West, coal seams there run thicker, steeper and deeper with a whole different set of geological conditions. Each of those District Managers has to evaluate on a mine-to-mine basis and determine what parameters need to be in place for each of those operations.

“You can’t do that from headquarters and all the rules can’t apply universally. On the other hand,” he added, “the complaint we hear from operators is the opposite: ‘Why does MSHA treat all our mines the same when they are different?’ What it boils down to is that, in the regulations, the regs are the same but you have to look at each mine individually and have the plan in place that fills the needs of that particular mine.

“At the same time,” Stricklin continued, “mine operators have contacted me directly when they think a District Manager is out of line and I have looked into those complaints. That check is in place whenever a mine operator feels he is being treated unfairly or arbitrarily. We monitor our District Managers pretty closely and provide them with guidance. We have individual quarterly meetings, minimally, and at each of them and I speak on the telephone at least once or twice a month.”

To the question of duality of inspections, of state and federal inspectors visiting the same mines, often at the same time, performing the same inspections, Stricklin says he thinks it’s a good thing. “And I know Assistant Secretary Stickler feels the same way. It simply is safer having inspectors on the scene; they all assist in the safety of the mine. Rather than being in conflict, at ground level where the inspectors work, they all seem to work together; their interests are the same, the safety of the miners. I’m sure there are incidents but, the vast majority of situations I see, they complement each other.

“As an agency, we work well with the State people on accident investigations, they are joint investigations. In Utah this was not the case.  They don’t have a state agency. However, at the time of the Crandall Canyon disaster, I personally spoke with the Governor, welcoming their participation, which they did to the extent possible. I also personally testified before the Utah commission when they were discussing putting a state agency in place, offering our assistance should they go that route.

“Under the new MINER Act, as well as the proposed Supplement MINER Act now before Congress, it stipulates that MSHA is to be in charge during any emergency or rescue operation,” Stricklin offered. “That has been the case since the original 1969 Act—it’s called a 103K Order—which gives us the authority to approve or disapprove any plan an operator wants to implement in every emergency situation. The reason being, you don’t want to send people in harm’s way unnecessarily, unplanned, unprepared, or uncoordinated.

“In most cases,” he continued, “I think people like that idea, MSHA taking the lead. In most instances, we are the most experienced, which is good, it means the operator has not been in that situation that often before. Unfortunately, we have been. We have the experts to bring to the scene to assist and the mine rescue teams to participate in any rescue. Though we may be in charge, in every way possible it is a collaborative effort.

“What the 2006 Act added was that we, MSHA, now would be the primary communicator. There was a lot of discussion about that in Utah, and since then. Remember, primary does not mean sole; we can’t keep people who want to talk—be they miners, families of miners, the mine operator, the union—from talking. In Utah, MSHA was the primary communicator, but we certainly weren’t the sole communicator.

“More importantly, what the 2006 Act did was put more teeth into assessments. In answer to your question: What does the Administrator of MSHA do? he oversees everything in the coal arm, from everyday administration to inspections, enforcement, plan approvals and assessments—the buck stops here, literally, and I take that responsibility very seriously. You may argue that more inspections, more violations, more and greater assessments does not add up to a reduction in accidents and fatalities but I argue that that A+B+C does equal D. Their trends are up; the overall trend for accidents and deaths is down. Hopefully, as this improvement continues, then you will see a downward trend in violations and assessments as the mining industry continues to do better in improving safety by reducing unsafe conditions, as well as unsafe work habits and practices.

“Very seldom do we a fatality without there having been a violation or some type of misbehavior. Behavior is a difficult thing to change,” Stricklin acknowledged. “Still, a person who had an argument with the wife or husband, someone whose child is sick or in the hospital, you have to be able to tell that person to leave it outside. Even on the surface, we are seeing as many fatalities there as underground. Most companies realize they have to work to change behaviors, that they have to get into the behavioral aspects of safety with their people. And we have programs we offer that can help.

“As to the argument of zero fatalities being the industry and our goal, I’ll argue for it,” Stricklin continued. “They had zero fatalities in Kentucky last year. If that can be accomplished in Kentucky—the country’s largest underground coal producer after West Virginia—why can’t it be accomplished elsewhere? Everywhere?  Operators like Consol have gone some years without a fatality, why not others? Certainly, we need some breaks, we need some luck, but I’m convinced it can be accomplished.

“As a District Manger,” Stricklin added, “the hardest part of the job was going to a family and trying to explain why their loved one died; to tell the children they won’t be seeing their father ever again. If you don’t have that goal—zero fatalities—you’re not doing your job for the public. But, if all take it seriously, we just might get there some day.”