Cindy Skrzycki Piece on Stickler Published

Word from MSHA is that acting assistant secretary David Dye had cleaned out his office and was not seen in MSHA after Mr. Stickler arrived on the scene, to Stickler's apparent regret.

"A Miner Matter"
By Cindy Skrzycki

The Senate sent Richard Stickler' s nomination to become the top U.S. mine-safety official back to the White House -- twice. Widows and relatives of dead miners pleaded that he not be given the job. Stickler lacked the support of lawmakers from key mining states, and some newspaper editorials criticized him as an industry insider.

None of this fazed the White House. When Congress departed for its Election Day recess, President Bush on Oct. 19 made Stickler head of the Mine Safety and Health Administration in the Department of Labor . His tenure will last though the end of the Senate's next session, sometime next year....

but read the whole thing.

Some Fines Could Drop Under MSHA Proposal

By now, everyone knows that Prs. Bush went ahead and appointed Richard Stickler to head MSHA after the Senate told him "no" twice. Here's the AP story. Word is that as a consultant, he had been approving all the significant MSHA decisions anyway for some time.

Footnote to prior posting in memory of [Lance] Corporal Ayron C. Kull (September 4). This is the young man who survived two tours in Iraq only to die in a gruesome conveyor belt accident after just a month in his new civilian job. Update: MSHA assessed a civil penalty of $6,900 for the single cited violation. (Maximum penalty by law is $60,000.) The company promptly paid it. End of story. [Correction, 1/19/06 -- his final rank was Corporal.]

The comment period just closed on MSHA's recent proposal to revise its formula for assessing most fines.

"We anticipate that these stronger penalties will induce mine operators to improve their safety and health programs, which prevent hazards from endangering the safety of America's miners in the first place," said David G. Dye, then acting assistant secretary for MSHA, annoucing the proposal in a news release, "MSHA Publishes Proposed Rule to Raise Mine Safety Penalties."

Total assessed penalties will rise, according to the agency's analysis.

But a walk-through of hypothetical violations indicates that some individual penalties may actually come out lower under the proposed system.

The penalty assessment formula already is complex, and would be more complex under the proposal. But take a hypothetical example that -- in a switcheroo not quite worthy of "The Illusionist" perhaps -- would yield a 44 percent lower penalty under the proposal, if my math is right.

Let's imagine a violation at a small sand and gravel mine -- say with 6 full-time workers, working about 12,000 employee-hours a year. (The example would also work for a coal mine producing 15,000 to 30,000 tons).

Under the current system, the mine gets 1 penalty point for mine size; under the proposed system, 2 points.

The mine may belong to a large company. In the sand and gravel industry, many small operations actually belong to multinationals. The largest category of controlling companies gets 5 penalty points under the current system. Under the proposed system, that's unchanged: 5 points.

Suppose the mine's history shows 1.2 violations per inspection-day on the average. That could happen if the mine had 5 inspection days in 2 years(a little over the statutory minimum of 2 inspections per year at every surface mine), and had a total of 6 citations that were "paid or finally adjudicated." (Maybe they actually had more, but any violations that are under contest don't count.) That 6 violations in 5 inspection days translates to 10 penalty points. Under the proposed system, however, with less than 10 violations in a 15-month period, penalty points for a similar history would be 0.

The new system contains a new category of penalty points for repeat violations. Perhaps we can imagine this mine had as many as 5 violations out of the 10 that were repeat violations of the same standard -- say, the guarding standard, which is a common one for this type of operation. Even so, additional penalty points for repeat violations would not apply under the propsal because the number of repeat violations was less than 6. Penalty points in this proposed new category therefore would be 0.

Let's suppose that the violation involves moderate negligence, 15 points under the existing system, 20 under the proposed one. Let's suppose it was S&S -- reasonably likely to cause an accident -- 5 points under the existing system, a whopping 30 under the proposal. Let's suppose the accident, if it occurred, would probably mean lost workdays -- 3 points under the existing system, 5 under the proposal.

And let's suppose the danger involved only one employee -- 1 point under each system.

OK, add up. Total penalty points under the current system come to 40. Under the proposed system the points add up to 63. Now you're saying -- how can the new penalty be less?

Because the scales are different.

A total of 40 penalty points under the existing system translates to $327. But 63 points under the proposal gives only $142.

To refine that further: There's also a deduction for "good faith" efforts in correcting the violation. Most violations are promptly corrected and get the deduction, which is 30 percent under the current system and would be only 10 percent under the proposed one. If the mine operator fixes the problem in a timely way, therefore, the penalty under the current system would be $229. Under the proposal, it would be $128. That's still a 44 percent decrease from the current system to the proposed one.

It is also true that minimum penalties would rise under the proposal, and so would many others. As far as I can figure it out, somewhat more violations would get the current $60,000 maximum (and under new law, egregious violations can result in fines up to $220,000).

But the proposal also could be a gift to mine operators in some cases, particularly small operators who do not see MSHA inspectors very often and -- perhaps only for that reason -- show a small numer of "paid or finally adjudicated" violations in a 15-month period.

If I've made a mistake, MSHA, you have my e-mail address and phone number!

A Mixed Bag....

Media are reporting on a Department of Labor Inspector General Report that says MSHA's hazard complaint system isn't working the way it should.

MORGANTOWN, W.Va. (AP) - The federal agency charged with keeping U.S. coal mines safe often took two or more days to respond to complaints of hazardous conditions, but it has refused to accept two of 13 recommended improvements from the Office of Inspector General.

The U.S. Department of Labor report, which examined the Mine Safety and Health Administration's hot line responses over three months, recommends MSHA define a timely response in a measurable way, rather than adhering to the current standard of “immediately” or “as soon as possible.”

But the 77-page report says MSHA balked, insisting that a focus on timeliness could lead to an incomplete evaluation of the complaint, an insufficient response and “a premature and uninformed decision.”

Working at MSHA until 2004, I always considered MSHA's hazard complaint reponse system a flagship program. It appeared to me that the district offices took complaints very seriously and made a real effort to detect violations without compromising complainants' anonymity. Was I naive, or has something changed? Or is the IG wrong about some of it? In my observations, IG investigators didn't always fully grasp the programs they were evaluating, and it occasionally seemed as if they themselves were under P.R. or political pressure to find something more to criticize than actually was there. Best to read the whole report.

Interestingly (to me),

The report found that another 11 evaluations were delayed because of a temporary but undetected problem in MSHA's e-mail system, which prevented messages from going to MSHA's contracted answering service or MSHA staff.

Maybe that's why I've been able to reach some MSHA staffers only through my Hotmail account and others only through AOL?

Mine Safety and Health News (by subscription only) recently reported that MSHA lost its paperwork on citations stemming from two different fatal accident inestigations. The papers were misfiled for more than a year, delaying penalty assessments, until the newsletter inquired. This doesn't sound like the MSHA I knew, either. (Full disclosure, I reported this story for MSHN.)

Meanwhile, on a stronger enforcement note, a rare prison sentence in a mine-safety case:

A man convicted along with his father of lying to government investigators about a 2003 death at a southern Illinois coal mine has been sentenced to three months in prison and two years of supervised release.

Lester Erb III, 29, formerly of Harrisburg, also was fined $500 at his sentencing on Sept. 28....

In June, a U.S District Court jury convicted Erb and his father, Lester Erb Jr., 48, of lying to U.S. Department of Labor Mine Safety and Health Administration investigators after the death of Adam Scott at a surface mine in Gallatin County.

The elder Erb was also convicted of three counts alleging that as the mine's supervisor, he fudged documentation that falsely showed he had given three employees he hired federally required training. He faces up to five years of prison and $250,000 in fines on each of the five counts. His sentencing is scheduled for Nov. 3.

More federal money for mine safety:

WASHINGTON, D.C. -- A mine safety initative at Marshall University will be getting a boost, courtesy of a $2 million grant from the U.S. Economic Development Administration (EDA), U.S. Rep. Nick J. Rahall announced on Thursday......

The Marshall University Center for Environmental, Geotechnical & Applied Science received the money to develop the Mine Safety Technology Innovation Capability and Regional Business Development program.

The incubator is designed to allow for the development of new business in mine technology services, to create a technology clearinghouse database and provide technology transfer services including virtual interactive and mine environment simulation technologies to further enhance training.

Good news as far as it goes. Maybe I just feel grouchy today, but why is it that the U.S. mining industry doesn't club together and annually contribute a nice chunk of dollars to continuing mine safety research programs the way the industry does in South Africa and Australia? We all say, and some us actually believe, that safety and productivity and profitability all go together. So why lay it all on the poor taxpayer?

Finally, is there a Nyah-Nonny-Nyah-Nyah Moment on the horizon?

As everyone knows by now, the nomination of Richard Stickler to head MSHA has been shuttling back and forth between the Senate committee, which is not delighted with the choice, and the White House which by gorry is not going to take "no" from an uppity Legislative Branch if it can help it.

Government Executive reports it could be be a recess appointment, which the GOP promised not to do the last time, but the White House may not consider that to be binding on the second go-round. That would give Mr. Stickler a whole year in the job before the next presidential election.

Meanwhile buzz from downtown is that Mr. Stickler, working as a consultant in Department of Labor HQ, still is a go-to on major MSHA decisions. If so, whether he has the title may not be that big a deal. Though it does kind of make a mockery of "advice and consent."