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I can’t keep up with Ken Ward Jr.’s coverage of the trouble brewing,  battle, strong difference of opinion between Secretary Hilda Solis/MSHA Asst. Secretary Joe Main and the United Mine Workers (UMWA), family members of deceased coal miners and journalists about the Department of Labor’s decision to have closed-door interviews of witnesses as part of the Massey Upper Big Branch disaster investigation.

Lest you think the press and blogs are the only way to take the pulse of the public, think again.  Mr. Dennis O’Dell, the current UMWA H&S director, is sharing his disgust about MSHA’s decision on the social media site Facebook.  His commentary begins:

May 2 (3:07 pm):  “The UMWA has been asked by miners at Upper Big Branch to be their Representatives during the investigation.  There are those out there who want to ice us out of the interviews. What happened to transparency?  If there is nothing to hide then why keep us out. What about a Public Hearing?”

May 6 (8:27 am): “Ok so here is the deal..the UMWA,Upper Big Branch family members, the media, the WV Coal Board, and even Massey has asked for open public hearings on the UBB investigation. What does MSHA do…”

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by Ken Ward Jr., cross-posted from CoalTattoo

There’s been no formal announcement yet today from the U.S. Mine Safety and Health Administration about how it plans to proceed in its investigation of the Upper Big Branch Mine Disaster — no word on public hearings or opening up the interviews to the victims’ families or taking any other steps to make this process more transparent.

But the information I’ve received so far from various sources is that this is the plan:

– MSHA will continue its general practice of conducting investigation interviews behind closed doors.

– The United Mine Workers union — designed as miners’ representative under the Mine Act by several Upper Big Branch workers — will not be allowed in the room for interviews unless the specific miner being questioned has designated the union as his representative.

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As I noted in “Perplexed by OSHA’s reg agenda,” I’ve made a habit of commenting on the content of the Dept of Labor’s semi-annual regulatory agenda  [see links below].  I’ll be the first to admit that our system for protecting workers from well-known hazards with new regulations is onerous and anything but nimble.  It needs an overhaul.   The obstacles, roadblacks and challenges plague OSHA, but these administrative and burden-of-proof hurdles DO NOT apply to MSHA.   Here are just two examples of what I mean:

  1. MSHA merely has to demonstrate that its decision is not arbitrary and capricious; a much lower burden of proof than the “substantial evidence” test required of OSHA.  [see a recent US Court of Appeals ruling on MSHA’s diesel particulate matter health standard explaining the “arbitrary and capricious” bar.]
  2. MSHA, unlike OSHA, is at every one of the worksites under its authority several times a year and can assemble all kinds of data to determine feasibility of controls.  MSHA has access to more data than it would ever need to demonstrate exposure, risk and feasibility.

These two factors alone set the stage for MSHA to propose and finalize standards to protect our nation’s mine workers over several months, not years.

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by Rena Steinzor, cross-posted from CPR Blog

EPA Administrator Lisa Jackson was in a tough position on coal ash.  If you are African American and low-income, you have a 30 percent greater chance of living near a big pit of this toxic brew than a white American, so Jackson correctly decided that such an important environmental justice issue should be at the forefront of the Obama Administration’s agenda. But Jackson was also taking on Big Coal, a special interest historically near and dear to swing voters in Ohio and Illinois.  Nevertheless, this sturdy “eco-warrior,” as she was recently dubbed by Rolling Stone, marched forward, right into the basement of the White House and the chilling influence of Cass Sunstein and the economists at the Office of Information and Regulatory Affairs (OIRA).
 
Jackson’s tough, but as yet secret, regulatory proposal arrived in crisp fall weather, only to be greeted by a tsunami of industry lobbyists, who visited and revisited OIRA.  By the time the spring flowers were out, Jackson was forced to take a pass on getting hard-hitting regulation on a speedy path to implementation.  After the long scuffle with OIRA, she instead announced that EPA was considering two strikingly different alternatives, thereby postponing any definitive action for at least six months and, far more likely, a year or more.  Then, to add insult to injury, she stepped in between angry activists and OIRA, trying in vain to slap lipstick on a not particularly cute pig.

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Last week Labor Secretary Solis released in the Federal Register on April 26, 2010, her Spring 2010 regulatory agenda for the Department, including her rulemaking priorities for MSHA and OSHA.  As required by the Regulatory Flexibility Act it was published on time in April, in contrast to her Fall 2009 agenda which was six weeks late. 

This document is described by the Secretary as a:

“…listing of all the regulations it expects to have under active consideration for promulgation, proposal, or review during the coming 1-year period.  The focus of all departmental regulatory activity will be on the development of effective rules that advance the Department’s goals and that are understandable and usable to the employers and employees in all affected workplaces.”

As my mentor Dr. Eula Bingham used to say to her staff (during her tenure as OSHA chief the Carter Administration): the only rulemaking activies that truly count for worker health and safety are publishing proposed and final rules.   Efforts that distract, divert, or delay the regulation writers’ duties should be avoided.  Currently, OSHA has about 100 full-time (FTEs)  individuals assigned to its H&S standards office, and MSHA has about 17 FTEs.

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by Ken Ward Jr., cross-posted from CoalTattoo

U.S. Environmental Protection Agency officials just finished their phone-in press conference to announce their action regarding regulation of toxic ash from coal-fired power plants.

In its press release, EPA describes its action this way:

The U.S. Environmental Protection Agency today is proposing the first-ever national rules to ensure the safe disposal and management of coal ash from coal-fired power plants.

And it quotes EPA Administrator Lisa P. Jackson saying:

The time has come for common-sense national protections to ensure the safe disposal of coal ash. We’re proposing strong steps to address the serious risk of groundwater contamination and threats to drinking water and we’re also putting in place stronger safeguards against structural failures of coal ash impoundments. The health and the environment of all communities must be protected.

But after listening to the press conference, and as I read the 563-page document EPA just posted on its Web site,  I have a hard time understanding how this is more than the Obama administration punting on making a decision here.

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A roof fall at the Dotiki Mine in Hopkins County, Kentucky has killed at least one miner. A second miner is still missing, and the search for him continues. Dotiki Mine has a terrible safety record, Bloomberg News reports:

Alliance’s Dotiki mine ranks seventh in the U.S. by the number of “significant and substantial” violations accrued since January 2009, according to U.S. Mine Safety and Health Administration data. The operation has collected 321 citations, 35 percent more than Upper Big Branch.

… Significant and substantial, or “S&S,” violations are those that are “reasonably likely to result in a reasonably serious injury or illness under the unique circumstance contributed to by the violations,” according to MSHA.

The Charleston Gazette’s Ken Ward tallies seven disasters that killed nine miners over the past five years at Alliance mines.

According to Bloomberg, the search team can’t yet identify the body that’s been found, because the miner is trapped beneath a rock. So, two families are still waiting to hear about the fate of their loved one. Our thoughts are with them.

Updated, 4/30: The rescue team has now found the bodies of both miners.

Yesterday, family members, friends, and neighbors of the 29 miners killed at Massey Energy’s Upper Big Branch Mine gathered for a memorial service at the convention center in Buckhannon, West Virginia. They were joined by Governor Joe Manchin, members of West Virginia’s Congressional delegation, Vice President Biden, and President Obama. At the start of his remarks, the president read out the names of the miners who lost their lives in the April 5th explosion:

Carl Acord. Jason Atkins. Christopher Bell. Gregory Steven Brock. Kenneth Allan Chapman. Robert Clark. Charles Timothy Davis. Cory Davis. Michael Lee Elswick. William I. Griffith. Steven Harrah. Edward Dean Jones. Richard K. Lane. William Roosevelt Lynch. Nicholas Darrell McCroskey. Joe Marcum. Ronald Lee Maynor. James E. Mooney. Adam Keith Morgan. Rex L. Mullins. Joshua S. Napper. Howard D. Payne. Dillard Earl Persinger. Joel R. Price. Deward Scott. Gary Quarles. Grover Dale Skeens. Benny Willingham. Ricky Workman.

At his Coal Tattoo blog, Ken Ward Jr. of the Charleston Gazette gives a moving description of the service. It begins:

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William “Bob” Griffith, 54 died at Massey Energy’s Upper Big Branch mine on April 5.   His tribute page says he

“came from a family of miners, went into the mines as a young man with his father and worked there like his brothers.  …When he wasn’t working, Griffith and his wife were fixing up their 1967 Camaro.”

His wife Melanie Griffith has now asked MSHA asst. secretary Joe Main twice (once on April 20 and April 23) for his agency to hold a public hearing as part of the disaster investigation.  In her request yesterday, she pleads for a response, noting:

“time is of the essence”

Her letter continues:

“It is our understanding that MSHA will begin witness interviews on Tuesday.  Family members deserve and demand full transparency and a voice as they go through what is undoubtedly the most difficult time of their lives.  Please respond to this most urgent request.”

I’m confident that Mr. Main and the Labor Secretary’s top staff will make a prompt decision on Mrs. Melanie Griffith’s request, or contact her (and the other Massey families) early next week to fill them in on their decision-making process.

by Ken Ward, Jr., cross-posted from CoalTattoo

Shortly after taking office, President Barack Obama issued a memo in which he asserted this his administration

“is committed to creating an unprecedented level of openness in government.”

The memo continued:

“We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

Well, Obama’s Labor Department has now received formal requests from two of the widows of the Massey Energy Upper Big Branch Mine Disaster, asking that the department’s Mine Safety and Health Administration (MSHA) conduct its investigation of the disaster through the public hearing provisions of the federal mine safety law.  But so far, neither the White House nor MSHA has publicly offered any response to these requests. 

Were MSHA to grant the requests, all investigative interviews would be open to the families, the press and the public.  There would be no exclusive access for coal company lawyers (as Gov. Joe Manchin’s mine safety director, Ron Wooten, has said the state would allow) or for the United Mine Workers union.  Everybody would be able to watch and listen, and know whether the investigation was asking the right questions and digging for real answers about what caused this horrible disaster.

Are there potential downsides to doing this through a public hearing?  Sure.

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