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U.S. Is Reducing Safety Penalties for Mine Flaws
Published on Thursday, March 2, 2006 by the New York Times
U.S. Is Reducing Safety Penalties for Mine Flaws
by Ian Urbina and Andrew W. Lehren
 

CRAIGSVILLE, West Virginia - In its drive to foster a more cooperative relationship with mining companies, the Bush administration has decreased major fines for safety violations since 2001, and in nearly half the cases, it has not collected the fines, according to a data analysis by The New York Times.

Federal records also show that in the last two years the federal mine safety agency has failed to hand over any delinquent cases to the Treasury Department for further collection efforts, as is supposed to occur after 180 days.

With the deaths of 24 miners in accidents in 2006, the enforcement record of the Mine Safety and Health Administration has come under sharp scrutiny, and the agency is likely to face tough questions about its performance at a Senate oversight hearing on Thursday.

"The Bush administration ushered in this desire to develop cooperative ties between regulators and the mining industry," said Tony Oppegard, a top official at the agency in the Clinton administration. "Safety has certainly suffered as a result."

A spokesman for the agency, Dirk Fillpot, defended its record, pointing out that last year the coal industry had 22 fatalities, the lowest number in its history.

"Safety is definitely improving," Mr. Fillpot said.

A spokeswoman for the National Mining Association, Carol Raulston, agreed.

"The agency realized in recent years that you can't browbeat operators into improved safety, and this general approach has worked," Ms. Raulston said. "The tragic events of this year have given everyone pause. But I don't think it means we want to abandon what we have found works."

Federal records show that fatalities across all types of mining have stayed relatively stable. In each of the last three years, 55 to 57 miners have died in all areas of mining. Experts say a long-term decline in coal mine fatalities is in part a result of growing mechanization.

Mr. Fillpot also said delinquent cases had not moved to the Treasury Department since 2003 because of computer problems. He could not say when the problems would be corrected. "Referrals from M.S.H.A. to the Treasury Department have been impacted by technical issues on both ends, which we are working to resolve while maintaining an aggressive record on enforcement and collections," he said.

Although the agency has recently trumpeted Congressional plans to raise the maximum penalties, federal records indicate that few major fines are issued at the maximum level. In 2004, the number of major fines issued at maximum level was one in 10, down from one in 5 in 2003.

Since 2001, the median for penalties that exceed $10,000, described as "major fines," has dropped 13 percent, to $21,800 from $25,000.

Also troubling, critics say, is that fines are regularly reduced in negotiations between mine operators and the agency. From 2001 to 2003, more than two-thirds of all major fines were cut from the original amount that the agency proposed. Most of the more recent cases are enmeshed in appeals, so it is impossible to know whether that trend has continued.

"The agency keeps talking about issuing more fines, but it doesn't matter much," said Bruce Dial, a former inspector for the mine safety agency. "The number of citations means nothing when the citations are small, negotiable and most often uncollected."

Before the January disaster at the Sago Mine near here, where 12 miners died, the operator had been cited 273 times since 2004. None of the fines exceeded $460, roughly one-thousandth of 1 percent of the $110 million net profit reported last year by the current owner of the mine, the International Coal Group.

[At a House oversight hearing on Wednesday, agency officials repeatedly cited the frequency of fines against Sago in the year before the accident as proof of aggressive enforcement. Exasperated, Representative Lynn Woolsey, Democrat of California, replied that maybe those fines had little effect because many were for $60. That point set off applause from audience members.]

"Most fines are so small that they are seen not as deterrents but as the cost of doing business," said Wes Addington, a lawyer with the Appalachian Citizens Law Center in Prestonsburg, Ky., which handles mine safety cases. Using federal records, Mr. Addington released a study in January indicating that since 1995 nearly a third of the active underground mines in Kentucky had failed to pay their fines.

"Operators know that it's cheaper to pay the fine than to fix the problem," Mr. Addington said. "But they also know the cheapest of all routes is to not pay at all. It's pretty galling."

Larry Williams, who now lives in Craigsville, 50 miles east of Charleston, knows this frustration well. In 2002, he was working with a fellow miner, Gary Martin, in a deep mine near Rupert, 25 miles south of here, when the roof collapsed on them. Mr. Martin died instantly, and Mr. Williams was trapped for more than four hours under several thousand pounds of rock that crushed his pelvis and both legs.

The men had been pillaring, or second mining, which involves extracting the last remaining coal in tunnels by scraping it from the coal pillars used to hold up the roof. This method is considered extremely dangerous. Federal regulations aim to reduce the risk.

In this case, federal investigators found that the regulations were not followed. The operators were fined $165,000. Those fines have not been paid, even though the mine owner, Midland Trail Resources, which did not reply to requests for comment, remains in business, according to state records.

"It makes me mad," said Mr. Williams, 50, who is paralyzed through much of his right side. "One dead and another man's life ruined, and they pay nothing? It just doesn't make sense."

On Feb. 14, Senator Arlen Specter, Republican of Pennsylvania, introduced a measure to raise the maximum penalty that the mine safety agency can assess for failing to eliminate violations that cause death or serious injury, to $500,000, from the current $60,000.

The law would also prohibit administrative law judges from reducing fines for violations deemed flagrant or habitual.

Ellen Smith, editor of Mine Safety and Health News, an independent newsletter that covers the industry, said that although the law was a positive step, one regulation that continued to need attention allowed fines to be lowered for smaller or financially troubled mines.

"The result of that provision is that it helps keep some habitual offenders in business," Ms. Smith said.

Cecil E. Roberts, president of the United Mine Workers of America, said changes in the law were vital but so were changes in the agency. "If you don't have enforcement along with a strong law, then you don't have a law," Mr. Roberts said. "The current agency mentality is to cooperate with mine operators rather than watchdog them, and safety suffers as a result."

Even when Congress passes strong safety laws, the agency can write regulations that work around them. In 2004, for example, after years of pressure from mine operators, regulators wrote a rule that let mines use conveyor belts not just for moving coal but also to draw in fresh air from outside. A law already existed preventing such safety regulations because of concerns that in the event of a fire, the belts would carry flames and deadly gases directly to the work area or vital evacuation routes.

Though the investigation is not complete, many experts say this is probably what occurred at the Aracoma Alma No. 1 Mine in Logan County, W.Va., where a fire left two miners dead on Jan 21.

Mr. Fillpot said his agency was revising the regulations on imposing penalties. He also pointed to civil suits filed by the agency in what he said was an increasing effort to force operators to pay millions of dollars in unpaid penalties.

"You can expect to see more of these types of efforts from us in the coming months," Mr. Fillpot said.

Mr. Williams, the miner who is partly paralyzed, remains skeptical.

"All I know is the roof collapsed only days after a federal inspector looked right at those pillars and saw that the operator was having us do illegal things," he said. "In these mines, laws don't matter."

Copyright 2006 The New York Times Company

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