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.

Identifying dangerous mines.  I tend intuitively to agree with those who suggest the Pattern of Violations rule would work better if the formula were less complicated.  As one side effect, MSHA has admitted, its computer program did not account for all factors and has missed many mines that were actually showing evidence of a pattern.  In science, there is a rule called Occam’s Razor.  Don’t multiply causes and entities in a scientific theory or formula beyond the barest necessity.  While identifying dangerous mines isn’t an exact science, the same principle surely applies. 

Earlier this week, I was compiling selected data on certain mines from the MSHA database, and a penny dropped for me.  A simple formula for mines “of concern” might look like this: the lost-workday injury rate X the VPID (violations per inspection day).  This formula could intuitively be improved by including fatalities. It might also be improved by counting all alleged violations (VPID doesn’t count violations that are under contest or otherwise not final). I have tried this only on a spot check basis, but regulators might look at some such simple formula as:

(Fatality rate + lost-worktime injury rate) X (alleged violations per inspection day) = CR (concern ranking)

I don’t know if legally, including the contested violations would hold up as a basis for actual pattern sanctions, but even if not, surely it would be okay to use a formula like this strictly for guidance in applying extra inspection resources. (And the great majority of contested violations are ultimately upheld.) 

More discretion in plan approval?  I don’t want to prejudge this accident. MSHA has not yet released the ventilation plan for Upper Big Branch. (I asked the press office and got no result, so I’ve filed a FOIA.)  But in some past situations, I have been told that MSHA was in the position of approving mine plans that its specialists were not necessarily all that happy about.  The regular practice seems to be that if a mine plan — meticulously followed — appears that it will meet minimum conditions of safety, then MSHA must approve that plan.

In real life, of course, plans are not always meticulously followed, unexpected conditions do arise, and minimum conditions of safety are not always enough.  Again, I don’t want to prejudge this mine plan or this accident.  But a question to consider is whether MSHA can and should, in general, be given the right to demand more from a mine plan than at present?

Significant and substantial.  The basic legal definition of this is “reaonably likely to result in an injury or illness that is reasonably serious.”  Whether a violation is rated S&S has consequences for urgency of abatement, penalties, and other sanctions (such as pattern of violations.)  To rate such violations, mine inspectors have to use judgement and consider each violation in context.  If, in the total circumstances, it wouldn’t cause an injury, it would be non-S&S.  But this possibility comes to mind: a violation that is non-S&S when the inspector writes it could be S&S a few hours later.

This is hypothetical…and I am not an inspector, so I stand ready to be corrected…but suppose for instance there is an area in an underground mine that has not been rock dusted. It might be relatively small and remote from the working face, with no likely ignitiion source nearby. There might be no methane in the area.  Maybe it would be considered non-S&S?  But perhaps, before this is corrected, ventilation conditions in the mine change for some reason, and that relatively small area becomes critical?

Again, I’m speculating.  But I’m wondering whether some kinds of violations should be S&S automatically.  This would take legislative change.  Or does the whole idea of S&S versus non-S&S need re-thinking?

Another S&S quirk is related to health.  It’s my understanding that most health violations are automatically rated non-S&S because a single overexposure is not likely to result in an illness.  But a series of single exposures (whether detected or not, and MSHA cannot sample every miner on every shift) can add up to illness.  Does this point about S&S deserve further consideration by Congress?

Safeguards.  This relates more to single fatalities and other day-to-day accidents.  Few universal standards have been imposed on haulage and transportation in the underground coal industry.  Inspectors are left to impose “safeguards” requiring haulage safety measures on a mine by mine basis.  Sometimes this works out like adding traffic signals after someone is killed at an intersection.  Such cases, it is my impression from writing up fatality reports, have become more prominent in recent years.  Should the mining community be thinking about universal haulage safety standards in coal mines?

Other things sure to come up.

Based on past experience, I think we can expect some to argue that MSHA should be freed from the necessity to inspect all mines regularly, so that it can give more resources to inspecting the ones believed to be most dangerous at the time.  It is possible we may hear some take the position that, “The problem is too much regulation,” distracting mine operators from safety. 

Others may ask that MSHA get subpoena power to compel testimony in investigative interviews, without necessarily holding a public hearing, as required now for use of a subpoena.  We will certainly hear from advocates that the whole civil penalty/contest process should be radically streamlined because backlogs are hampering enforcement. Perhaps the contest process, in straightforward cases, could be done electronically?  And based on current news coverage, it seems a fair bet that Congress will be looking into the whole issue of ovearching corporate responsibility for mine safety in more depth than ever before.

Obviously the story is still unfolding rapidly.  Just my thoughts at this point.

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