W. VA Coal Mine Agrees to Pay $209 Million but Will the Mine Safety and Health Administration Fine Itself?

The headline in the Washington Post of December 7, 2011 was: “Owner of W.Va. Coal Mine Agrees to Pay $209 Million Penalty for Fatal Explosion. – Washington Post , 12/07/2011

The article reports that The Mine Safety and Health Administration (MSHA) issued a report that puts the full blame for the horrific accident at the Upper Big Branch Mine in April 2010 on the mine owner operators.  Clearly they were culpable and the report details gross negligence in the company’s inspection process. It states that: “The investigation also revealed multiple examples of systematic, intentional, and aggressive efforts by PCC/Massey to avoid compliance with safety and health standards, and to thwart detection of that non-compliance by federal and state regulators.”

Interestingly, five days prior to the catastrophe,  the Department of Labor’s Office of Inspector General (OIG), through its Office of Audit, issued a report number 05-10-001-06-001, captioned Journeyman Mine Inspectors [in the MSHA] Do Not Receive Required Periodic Retraining, as required by  the Federal Mine Safety and Health Act of 1977 (Section 505). The report notes that “Journeyman [MSHA] inspectors are required to receive one week of specified retraining each year, or two weeks every other year.”  In short the OIG found that MSHA did not comply with the law. Further, the OIG describes the effect of this non-compliance as follows:

“This increases the possibility that hazardous conditions may not be identified and corrected during inspections which, in turn, could increase the risk of accidents, injuries, fatalities, and adverse health conditions for miners.”   Report p. 3.[1]

Unfortunately the MSHA report does not deal with MSHA’s own failure.  However, the report does allude to issuance of a further report which will examine MSHA’s actions prior to the explosion and during the rescue and recovery operation. The internal review will evaluate the quality of MSHA’s enforcement activities, “including any weaknesses, and the adequacy of regulations, policies and procedures.  A report and recommendations will be provided to the Assistant Secretary for appropriate action with the aim of better improving the agency’s performance and helping prevent the occurrence of future accidents.”

While the review is laudable, the issuance of regulations, policies and procedures is inadequate unless there is commitment to enforce and comply with those rules.  Will the MSHA fine itself? Of course not, but a recommendation that the MSHA comply with the law and establish a management program to detect and prevent violations of the law in the future by the MSHA, as a baseline effort, would be in order.

Emil Moschella

Executive Director,
Rutgers Center for Government Compliance and Ethics
Dated: 12/15/2011

[1] It is noted that the Rutgers Center for Government Compliance and Ethics referred to the DOL OIG report in its White Paper at p.14. (http://rcgce.camlaw.rutgers.edu/sites/rcgce.camlaw.rutgers.edu/files/rcgce_whitepaper.pdf). The mission of the Center is to: “Advance the application of effective ethics and compliance program principles as an element of public governance at the federal, state and local levels in the United States and internationally through a variety of activities including research, education, networking and thought leadership.”