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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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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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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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by Kathy Snyder, cross-posted from MineSafetyWatch

On April 9, wearing my correspondent’s hat for Mine Safety and Health News, I emailed a member of the Department of Labor public affairs staff, suggesting that this document be posted. On April 12, I again requested the plan.  On April 13, I filed a FOIA.  The documentation has now been added by the agency to its single-source Upper Big Branch

(You might think that, as a requester, I might have got word from someone at MSHA that the plan was now posted, rather being left to stumble across it.  Or maybe not. Ken Ward has had some things to say lately about transparency at MSHA.)

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by Kathy Snyder, cross-posted from MineSafetyWatch

MSHA last Tuesday issued a citation to the Performance Coal Co. Upper Big Branch Mine – South, alleging insufficient measures to control explosive coal dust before the fatal April 5 explosion.  The April 13 citation was based on a sample taken March 15 – three weeks before the fatal accident. The time required for lab analysis of such samples creates a lag in obtaining results.  An MSHA inspector took eight dust samples from mine surfaces on March 15, the citation stated.

“One out of eight samples taken were less than 80 per centum of combustible [sic] content,”

read the text of the citation, in a printout from MSHA’s computer system obtained by Mine Safety and Health News.

MSHA alleged that the mine violated standard 75.403.  The standard specifies that incombustible content of underground coal mine surfaces required to be rock dusted must be at least 65% in general, 80% in return air courses, and still higher – according to a formula – for each 0.1% methane present.  The samples were taken on Mechanized Mining Unit 029-0, according to the citation.  A detailed mine map provided by MSHA indicated that that 029-0 was the number of the unit engaged in developing a new area for future longwall mining.

In issuing the citation – 8 days after the blast – MSHA characterized the alleged violation as “reasonably” likely to cause up to 30 deaths. Negligence by the mine operator was characterized as “low,” however.  The April 5 accident remains under investigation, and whether the alleged violation could have actually contributed remains undetermined.

MSHA also on April 13 issued a withdrawal order to the Upper Big Branch Mine under section 104(b) for alleged failure to correct a previously cited violation within the time allowed, the agency database showed.

MSHA did not respond today to a request for specifics on the alleged uncorrected violation.

Kathy Snyder worked at MSHA for 26 years in the office of public affairs.  She retired from her career position at the agency in 2004, and is the Washington, DC correspondent for Ellen’s Smith publication  Mine Safety and Health News

by Pete Galvin

In response to the recent tragedy at the Upper Big Branch (Massey) mine in WestVirginia, the President instructed the Mine Safety and Health Administration (MSHA) to take some rulemaking actions.  Accordingly, it is a good time to take a look at how the President’s own directives and the Office of Information and Regulatory Affairs (OIRA) determinations make it much harder for MSHA to protect this Nation’s miners.

As it happens, the specific rulemaking MSHA was asked to undertake is not likely to call the President’s rulemaking oversight policies into question.  The rule that is apparently to be changed involves the procedures for determining whether a mine is eligible to be charged with a “pattern of violations.”  MSHA can basically shut down a mine’s production unless the pattern (i.e., a whole series of separate violations) is abated.  There are a variety of methods available under the Administrative Procedure Act (APA) to accomplish such a change without extensive notice and comment, provided the agency makes the required findings under the APA — and provided the mining industry decides not to challenge these findings in court. 

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by Kathy Snyder, cross-posted from MineSafetyWatch

I wasn’t able to catch President Obama’s remarks on mine safety live, but immediatley saw the summary by Ken Ward at Coal Tattoo.  Two main thrusts in the points flagged by Ken: MSHA needs a better way of identifying mines that need extra enforcement attention.  And new legislation is almost 100% certain in the next months.  Update: exceptionally strong words from the President’s actual statement:

….we do know that this tragedy was triggered by a failure at the Upper Big Branch mine — a failure first and foremost of management, but also a failure of oversight and a failure of laws so riddled with loopholes that they allow unsafe conditions to continue.

Many experienced, intelligent and thoughtful people will be giving their best attention to reforming mine safety.  The S-Miner Act, which was proposed but not enacted after Crandall Canyon in 2007, is one likely starting point.  Not an engineer, nor an attorney — but nevertheless, having worked more than 30 years around mine safety issues, I would like to offer a few personal reflections that someone might possibly find useful.

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