Commission Gets It Wrong in Seat Belt Case

Holding that “shall be required to wear” language in a mine safety standard is equivalent to “shall be worn,” three members of the Federal Mine Safety and Health Review Commission have wrongly reversed 42 years of case law and handed regulators a new weapon to use against the coal sector.

 

In a decision July 19, Commission Chairwoman Mary Lu Jordan and Commissioners Patrick Nakamura and William Althen gave six reasons why they believe the language of 30 CFR § 77.1710 mandates that surface coal operators assure their employees wear protective clothing and equipment when appropriate. Their reasoning was not shared by Commissioners Robert Cohen, Jr. and Michael Young.

30 CFR § 77.1710 states that miners “shall be required to wear” protective clothing and devices under circumstances outlined in a number of subsections, including subsection (i), which mandates seat belt use in certain vehicles when there is a danger of overturning and where rollover protection is provided. The subsection is relevant because the case is about a rollover accident involving a 100-ton truck that occurred at the Chestnut Flats Mine in Kentucky in April 2010. The driver, who was not wearing a seat belt, sustained a lost-time injury. The Mine Safety and Health Administration cited Nally & Hamilton (N&H) Enterprises for violating the standard.

Under existing case law predating the 1977 Mine Act, the court has always made a distinction between the “shall be required to wear” language of the standard and “shall be worn.” According to Young, the intent of a 1974 ruling concerning a standard employing the same “shall be required to wear” phrasing was to forgive the operator’s liability if the infraction was solely due to the miner’s negligence or disobedience. In the N&H case, MSHA’s own accident investigator admitted the driver had been negligent.

A post-Mine Act decision, Southwestern Illinois Coal Corp., built on the earlier decision. In that 1983 decision, which is known as Southwestern I, Young noted the court majority held that “ ‘[t]he regulation does not state that the operator must guarantee that belts and safety lines are actually worn, but rather says only that each employee shall be required to wear them.’ ” To be in compliance, operators had to have a system in place requiring protective equipment and diligently enforcing its use. The Commission reiterated its position in a similar case in 1985 involving the same company, dubbed Southwestern II.

N&H has a mandatory seat belt use policy backed up by a statement employees must sign prior to hire in which they agree to adhere to the safety policy. The policy is restated during monthly foreman’s safety talks and at annual refresher training, which employees also have to acknowledge by their signature. The driver signed the appropriate form six times from 2004 through 2009. In addition, the operator had disciplined an employee found not to have been in compliance. In another instance, an N&H employee who was wearing a seat belt escaped injury after an accident. Convinced by this evidence that N&H had taken reasonable steps to comply, Administrative Law Judge (ALJ) William Moran vacated the citation in July 2013.

In its argument overruling Moran, the majority also referenced Southwestern I, but championed the dissenter’s interpretation that “required” means to mandate, not merely to exhort. “ ‘[T]hat which is required, shall be done. … There is no meaningful, nor even semantically persuasive distinction, between ‘shall be required to wear’ and ‘shall be worn,’ ” the majority wrote, quoting the dissenter.   

The three commissioners said their interpretation also harmonized 77.1710(i) with other sections of Part 77 and with parallel metal/nonmetal regulations. They cited a practical reason to justify their position, and contended their view was consistent with the Mine Act’s strict liability dictate while best achieving the purpose of mining law; namely, to protect miner health and safety.  The majority chose to ignore Young’s comment that nothing prevented MSHA from rewriting the standard if it disagreed with the Commission’s historical interpretation. The group made a similar call on the same day, July 19, regarding fall protection under 1710(g) in another case, Lewis-Goetz & Co., Inc.  

The U.S. Supreme Court has held that settled law is best left alone unless it is unworkable or badly reasoned. Young and Cohen asserted that Southwestern I was neither and that their colleagues had failed to make a case to justify overturning precedent. As a result, Young agreed with the ALJ that the citation should be vacated.

Cohen, however, took another tack. He said he believed N&H could have done more by periodically spot-checking drivers for compliance, and pointed out that N&H’s own safety coordinator had said as much in his testimony. He alone also felt N&H was moderately negligent. Thus, he upheld the ticket. Although Young sided with Moran, he conceded that the very existence of the violation suggested a deficiency in the operator’s approach, and agreed with Cohen a monitoring component should have been employed.

In the end, the Commission remanded the case to Moran for a decision on MSHA’s significant and substantial (S&S) designation of the citation and to set an appropriate financial penalty. They let stand Moran’s finding of no negligence.

In reading the 19-page decision, one admittedly subjective takeaway is that the outcome may well have been orchestrated. Due to clear mitigating circumstances regarding N&H’s diligence in enforcing its seat belt policy, MSHA must surely have known that the $52,500 specially assessed fine it levied would never hold up. Such a ridiculous, baseless amount would surely trigger an appeal, a legal maneuver the agency may well have welcomed if its aim was for a favorable ruling from a pliant Commission. If so, in the interest of transparency, MSHA should admit it was using its special assessment weapon for this novel purpose.

That the outcome may have been foreseen is also suggested by ALJ Moran’s decision to craft an alternative scenario to his vacatur order in case the Commission ruled against him. He said he would uphold the citation, strike the S&S designation and set a $100 fine.

In our view, the Commission majority has replaced a reasonable interpretation of the standard with an unreasonable one; i.e., it has substituted bad law for good law, an opinion held by the minority Commission faction. A higher court may well be totally unsympathetic to stirring up over four decades of settled law without legal justification. If MSHA’s legal strategy was to secure a favorable ruling, it would be sweet retribution indeed if, on appeal, the reviewing tribunal threw out the case. 

One more thing. In writing the Mine Act, Congress made clear its belief that a safe workplace was the joint responsibility of miners and operators, with operators having “primary” responsibility. Section 2(g) reads in pertinent part that “it is the purpose of this Act to establish … mandatory health and safety standards … [and] to require that each operator of a coal or other mine and every miner in such mine comply with such standards …” [emphasis added]. It is time for MSHA to treat miners like the grownups they are and craft standards beyond smoking underground to hold them accountable for unsafe behavior found to have been caused by their negligence or disobedience.

Copyright 2016, James Sharpe, CIH. All Rights Reserved.

POV Process Seen as Factor in Some Mine Shutdowns

The Mine Safety and Health Administration’s Pattern of Violation (POV) enforcement program may have directly triggered the demise of seven underground mines and significantly impacted management decisions to shutter at least some of 23 others.

MSHA’s POV program was launched in 2007. Since then, 89 mines have gotten caught up in the program. Of these, seven have faced the full force of the agency’s dreaded POV enforcement weapon. Only one of the seven, Pocahontas Coal Co.’s Affinity Mine, remains active. Sixteen of the 89 mines are repeat alleged offenders, and three ‒ Rhino Eastern, LLC’s Eagle #1, D & C Mining Corp’s mine of the same name, and Argus Energy WV, LLC’s Deep Mine #8 ‒ have gone around three times. 

Within 12 months after MSHA enforcement began under either a POV or a Potential POV (PPOV) notice, the operators of six coal mines and a Colorado silver mine informed the agency they planned to end active operations. The short time lapse between the launch of enforcement and management’s notice strongly suggests that either heightened enforcement as a result of the POV/PPOV designation or the threat of it played a pivotal role in the decision.

The seven mines are Bledsoe Coal Corp.’s #4; Bardo Mining, LLC’s Bardo #1; GCC Energy’s King I; Snapco, Inc’s Mine No. 2; Coal Riving Mining, LLC’s Fork Creek No. 1; Solid Fuel, Inc.’s No. 1; and Star Mine Operations, LLC’s Revenue Mine. All are abandoned underground coal operations, except Revenue, which is listed in MSHA’s mine retrieval system as a nonproducing underground silver mine. The Fork Creek and Revenue mines were POV designees.

The 23 other mines went dark 12-36 months after MSHA’s POV/PPOV enforcement hammer began, a time frame also sufficiently short to suggest enforcement impacted management’s inactivation decision. This is especially so for mines whose status changed within 16 months: The New West Virginia Mining Co.’s Apache; Manalapan Mining Co.’s RB #12; Commonwealth Mining, LLC’s No. 1 Washer; Excel Mining, LLC’s Mine No. 2; and Brody Mining, LLC’s No. 1. As with the seven mines above, all these are underground coal mines with one exception: Commonwealth’s Washer plant is a facility coal operation. Brody No. 1, now listed as nonproducing, made MSHA’s POV list.

The most notorious PPOV mine is Performance Coal’s Upper Big Branch-South (UBB) operation, which received the designation in the fall of 2007. By the time of the April 2010 explosion that killed 29 miners, the mine had shed the label. Nevertheless, it should have been relisted in the fall of 2009. After initially denying that UBB had met the PPOV criteria, the agency fessed up eight days following the tragedy after media prodding initiated by the mining newsletter Sharpe’s Point. The oversight was officially attributed to a “computer programming error.” We’ll never know if the disaster could have been prevented as a result of the additional compliance scrutiny a PPOV listing would have triggered. The mine was officially abandoned in September 2012. UBB is in West Virginia, home to 32 of the POV/PPOV designated mines. Kentucky, another Central Appalachian state, had 25.

Of the 77 POV/PPOV listed coal mines, 62 (81%) have gone into temporarily idled (5), nonproducing (16), or abandoned (41) status. While, as noted, MSHA enforcement surely played a role in some of these mines’ demise, the severe downturn plaguing the sector must surely be seen as the most significant driving force behind most of these shutdowns.

In the metal/non-metal (M/NM) sector, besides the Revenue Mine, 13 others have gotten the POV or PPOV tag since 2007. Twelve remain active. Like Revenue, Genesis, Inc’s Troy Mine is another underground silver operation listed as nonproducing. Of the total M/NM group, three are cement plants, nine are metal mines, and two are nonmetal operations: Carmeuse Lime and Stone, Inc.’s Black River lime mine and Celite Corp.’s Lompoc Plant, which produces diatomaceous earth.

MSHA’s POV authority derives from Section 104(e) of the Mine Act. The provision is potent in large part because of its potential to severely disrupt mining operations. At POV-listed mines, any inspection within 90 days during which a significant and substantial (S&S) violation is written results in an order withdrawing personnel from areas of the mine affected by the alleged violation until it is abated. An S&S violation is one that could reasonably be expected to lead to a serious injury or illness. The only way to become delisted is to go through an inspection free of S&S citations or to have no withdrawal orders issued within 90 days of the date of the POV notice.

MSHA’s implementing regulation went into effect in 1991. However, it was not enforced until three underground mine tragedies in 2006 that killed 19 coal miners focused renewed attention on mine safety. Under the regulation, mines with a high number of significant and substantial (S&S) violations were notified that they had the potential to become listed as POV mines. Any mine so designated was expected to develop and implement a corrective action plan to cut its S&S violation frequency rate. Over the next 90 days, MSHA monitored the mine for improvement and if it fell short, it was issued a POV notice. However, because just one mine received the POV black mark, the regulation was judged as ineffective.

As a result, the rule was amended, with the changes going into effect in March 2013. A significant change allowed MSHA to invoke a POV listing for alleged S&S citations. Under the previous iteration, only S&S violations that had become final orders were counted. The agency made the change because it believed some operators delayed judgment day on the S&S allegations against them through litigation. In fact, the POV status of the one mine placed on pattern status under the old system was removed when it successfully fought some of the S&S citations after exercising its due process right to challenge them. The new rule also removed the PPOV process altogether, replacing it with an on-line tool every operator could monitor to independently check the POV status of their mine. The amended rule also established general criteria and procedures MSHA would use to identify pattern mines. A coalition of mine operators sued MSHA over its new procedures, and that litigation remains ongoing.

No mine was identified for POV status this year, a testament to improved compliance, according to MSHA, which credits the regulation and a “culture change” in the industry for the achievement. However, the overwhelming majority of the POV/PPOV listed mines, 68 in all, have been underground coal operations, a mining subsector especially hard hit by tough economic times. These mines operate in a complex, highly regulated environment that makes alleged S&S tickets more likely. It’s certainly good news that MSHA came up empty in its screening for POV mines this year. But let’s not get carried away; the agency simply had far fewer mines from the underground coal sector to draw from.

Copyright 2016, James Sharpe, CIH. All Rights Reserved.

Amidst Coal Downturn, MSHA Wants More Money

Mine closures and worker layoffs in the coal sector are rampant, leading to the common sense conclusion that the Mine Safety and Health Administration should need less money to regulate a shrinking business, but more millions, not fewer, are what the agency wants in the coming year.

MSHA seeks $397.4 million and six new hires to manage its mine safety and health affairs in fiscal 2017, which begins on Oct. 1, 2016. The lion’s share ‒ 43.2% ‒ of its request to Congress is $171.8 million for its Coal Mine Safety & Health inspectorate. The dollar figure is a sizeable boost over the $164.3 million for Coal enforcement in this year’s budget.¹ Why MSHA needs the increase is mystifying when you look at the number of active Coal mines, employment, MSHA’s proposed enforcement actions and other indicators.

For instance, over the past five years, the number of surface and underground coal mines has dropped faster than an unplanned roof fall. In 2011, the count of active mines was 970 surface operations and 450 underground. Currently, the figures stand at about 395 and 186, respectively.² The number of coal miners has declined from 143,437 in 2011 to 102,804 last year.³ Even that latter figure may be inflated. Bob Murray, CEO of Murray Energy Corp., a major coal producer, told a media outlet in mid-July that the number of coal miners currently stood at 60,000. In terms of anticipated enforcement actions, the agency proposed 4,130 mandated inspections in Coal in 2016, but has proposed only 3,700 in fiscal 2017. It is projecting 120 impact inspections in the sector this year,⁴ only 110 in fiscal 2017.

The Coal group is operating with one less field office this year than a year ago. In a suggestion the Coal inspectorate has been cash-flush, the agency said it transferred just under $3.6 million and 24 full-time equivalent employees from its Coal unit to other internal units in fiscal 2016, including to its Metal/Non-Metal (M/NM) inspectorate. In fiscal 2015, MSHA said 15 FTE were transferred to M/NM from Coal plus another eight employees who offered assistance to M/NM temporarily. Clearly, there is less for MSHA’s Coal people to do, yet the agency seeks more money to do it.

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¹Source: page 24 of MSHA’s proposed 2017 fiscal budget (https://www.dol.gov/sites/default/files/documents/general/budget/CBJ-2017-V2-13.pdf).

²The roughly 581 currently active coal mines is a far cry from the figure of about 1,500 mines mentioned in MSHA’s 2017 budget, but we assume the agency is counting idle and nonproducing operations as well.

³Interestingly, as the number of Coal miners has declined, MSHA's cost per Coal miner has increased. In fiscal 2012, the cost was $1,195 per miner; in 2015, $1,633. The figures were derived by dividing the total number of Coal miners in those years into the Coal inspectorate’s budget for that year. In contrast, the cost per M/NM miner rose from $356 in 2012 to $383 in 2015.

⁴Through May 2016, 92 impact inspections have been completed in Coal, for an average of 11.5 per month. At that rate, MSHA will complete 138 such inspections in the sector by the end of this fiscal year.

In its budget justification statement, MSHA said it needs $2.1 million more to implement and enforce the new coal dust rule. Another $650,000 would be earmarked to pay for coal mine inspections during odd hours. The biggest chunk, though, $2.3 million, would go toward inflationary cost increases related to compensation, benefits, and rent that were dropped from MSHA’s FY 2016 appropriation for Coal. In fact, the inflation factor is a major driver for why MSHA wants more money for each of its eight operating units.

It should also be noted that the agency wants to add six new hires to work for the renamed Office of Assessments and Special Enforcement, formerly OASSEI.  According to MSHA, the new people are needed “to continue to improve the timeliness of special assessments and improve special investigations and accountability audits.” If approved, the new employees would bring MSHA’s total workforce to 2,277 employees.

Given Coal’s decline, we are unconvinced that MSHA’s wish list for fiscal 2017 cannot be funded for less money. We are not alone. Congress isn’t sold on the agency’s proposal either. The Senate has offered $376 million while stingier representatives in the House have said $350.5 million is enough. Personally, we like the House figure. Ronald Reagan once opined that no government ever voluntarily reduces itself in size. We’re seeing that with MSHA today. MSHA’s budget should be cut.

Copyright 2016, James Sharpe, CIH. All Rights Reserved.

MSHA Leaders Intervene to Quell Furor in Western District

The top brass at the Mine Safety and Health Administration (MSHA) have been forced to intervene to quell an embarrassing uproar that began with a regular inspection at a Western silver mine and evolved into an angry miners’ petition, secret recordings, a whistleblower complaint, retaliation, and multiple investigations, including by a member of Congress.

Soon after inspector Rod Gust arrived at the Galena Mine in Idaho in November 2014 and before a single citation had been written, miners and safety personnel began to complain about his aggressive behavior. Complaints were made to a second inspector, Scott Amos, who suggested to Gust that he adopt a more cooperative approach, to no avail. Amos then passed the miners’ concerns on to the inspectors’ Boise Field Office Supervisor, Ron Jacobsen, but with little apparent effect there either. When the inspection ended about six weeks later, at least 117 miners had become so incensed, they signed a petition specifically naming Gust and seeking a congressional investigation.

In the petition, the miners identified Gust by name, described him as “overbearing” and his behavior as “misdirected” and “reckless.” One of several miners who put their concern about the inspector into writing noted that Gust had said he “hated” a couple of people who worked at the mine. In addition, the miner recalled Gust stating that “his goal was to shut this place down,” a warning he repeated several times, according to the miner.

The miners further contended that Gust was writing “frivolous subjective citations.”  They asked for a probe because “we are in fear of our safety and it may jeopardize our future employment.” The safety allegation apparently stemmed from miners’ concerns that Gust was allegedly asking them to do things they did not believe were safe, while the employment concern appeared to arise from fear that steep fines could lead to closure of the mine or layoffs. In fact, the workforce had recently been reduced: employment fell from 315 workers in 2013 to 245 in 2014, according to MSHA’s database, although the reduction was likely due to economic conditions, not MSHA enforcement.

Reached by phone, Gust referred our questions to MSHA headquarters.  However, before ending the call, he mentioned he had been employed at Galena while attending college in 1988, then suggested that, since that time, not much had changed regarding safety at the mine. “But they [the operator] said the same things then as they do now to their miners,” Gust said. “So they built the culture, and that’s all I’ll say.” According to MSHA’s database, the current operator, U.S. Silver – Idaho, Inc., did not own the mine in 1988.

The petition was remarkable in itself, but was even more startling because Galena miners are members of the United Steelworkers union. Miners’ unions generally look favorably upon MSHA, a pro-labor agency within the U.S. Department of Labor (DOL), because the agency’s mission is to enforce safety and health standards for miners and to defend workers against mine operators when miners perceive their right to a safe and healthful workplace has been compromised. 

At a meeting in January 2015 covered by a local newspaper, the Shoshone News-Press, the miners sounded off about MSHA and Gust to their congressional representatives, including to U.S. Senator Mike Crapo (R-ID), who the newspaper said attended in person. Lawmakers promised a full investigation. At some point, either at the meeting or thereafter, the miners turned over their petition to Crapo, Amos said. Besides Crapo, Western District officials also launched a probe. Amos said he encountered an MSHA official conducting an inquiry when he visited the mine in February 2015.  

The miners weren’t alone in their anger. Gust and his team wrote 85 citations against the mine and five orders during their year-end inspection in 2014. The citation total was eye-popping because over at least the previous 10 years, the mine had never received anywhere close to that number of alleged violations during a single inspection, according to MSHA’s database on the underground mine, which is located in an area of the Idaho panhandle known as the Silver Valley. MSHA proposed $49,043 in fines. The operator has formally contested 55 of the tickets.

The agency’s enforcement actions during the following year, 2015, suggest MSHA was undeterred by the petition. Inspectors wrote 30 more tickets during a regular inspection during the February-March period, 18 others in May-June, and 59 alleged infractions and two orders during their visit in August-September. During the last regular inspection of the year in the fall, 19 more citations were handed out. The total number of citations and orders MSHA wrote during regular inspections in 2015 – 128 ‒ is unprecedented for the mine during this century.  

In February, their animus unabated, some miners hurled insults and profanities while others refused to talk to Amos when he returned for a ventilation inspection, the inspector said. When the miners’ agitation continued into the next day, Amos said he became “fed up,” and made a promise to miners that he would do something about their complaints.

Recorded Meetings

Back in the Field Office the next day, Amos encountered Gust. Sensing an opportunity to gather evidence of Gust’ allegedly abusive behavior, Amos secretly recorded the two men’s 98-minute conversation. As the meeting drew to a close, Amos informed Gust he had just been recorded. According to Amos, that prompted an agitated Gust to try and grab Amos’s phone with one hand while taking a swing at him with the other. Amos was able to hold on to his phone and avoid the punch. He also beat a retreat, leaving the building … in a hurry. 

The recording gave Amos the ammunition he thought would convince his higher-ups that Gust needed to be corralled. He isolated a short segment of the video which, according to Amos, showed Gust voicing complaints about; i.e., “berating,” the Galena miners and mine management. Amos uploaded the segment to YouTube, but in a way that rendered it private and non-searchable. He then sent a link to the segment to Jacobsen and Western District management, but according to Amos, “[n]obody watched the video.”

Frustrated, he sent the segment itself by email directly to Western District Manager Wyatt Andrews with copies to MSHA Assistant Secretary Joe Main at MSHA Headquarters in Northern Virginia, lawmakers and the Department of Labor’s Office of Inspector General (OIG). Amos said Andrews did not reply, but OIG instructed him to file a complaint of general wrongdoing with the Office of Special Counsel (OSC), an independent federal investigative and prosecutorial agency based in the nation’s capital.  He did. 

In early March, Amos met with Jacobsen, his boss, and Western District Assistant Manager Paul Belanger. Belanger countered Amos’s complaints about Gust by supporting the inspector, and stating there were mine operators in the Silver Valley who had expressed appreciation for Gust’s inspection work. Belanger also groused that Amos had gone over his head and had not given management time to complete its own inquiry. According to Amos, Belanger punctuated his remarks by “pound[ing] the desk in front of my face with his fists and [ ] yelling at me.” At this session, Belanger mentioned that headquarters was sending the head of another Metal/Non-Metal (M/NM) district to investigate. MSHA has not made public the results of either this investigation or those that were underway at the mine in February.  

As he had done with Gust in February, Amos recorded the Belanger meeting on his smart phone. As it began, Belanger asked Amos if he was recording the session. He answered yes. When Belanger directed him to stop, Amos agreed to do so, but in fact he didn’t. The meeting lasted 35 minutes, and Amos recorded all of it. 

Amos’s recordings led MSHA to propose suspending Amos without pay for five days and imposing a $1,500 fine. The charges were that he had secretly recorded both meetings, lied when he said he was not recording the second meeting, and disobeyed a direct order to stop recording. Figuring he had nothing to lose, Amos sent an email to every MSHA employee announcing that he was resigning and explaining why.

With the suspension still hanging over his head, Amos took medical leave. OSC had previously accepted his whistleblower complaint for investigation, but when MSHA insisted that Amos present a medical release to return to work rather than allowing him simply to cancel his medical leave, OSC suspected retaliation as well. 

Around this time, the agency’s headquarters leadership, apparently concluding it had heard and seen enough, decided to step in personally to try and bring the matter involving Amos to a close. It had good reasons: the agency overseeing Amos’s whistleblower rights was investigating, a grievance filed by Amos’s union against MSHA was pending, the goings-on had the agency’s rank-and-file abuzz, Idaho lawmakers were taking an interest and the possibility of media exposure loomed.       

On October 26, Patricia Silvey, MSHA’s Deputy Assistant Secretary for Operations, M/NM Administrator Neal Merrifield, and a DOL human relations official met separately in Sacramento with Western District officials and Amos. MSHA has been understandably mum about what went on behind closed doors with District officials. However, the evening session with Amos was conciliatory, the inspector recalled.  Soon thereafter, Amos’s suspension was rescinded. 

Besides placating Amos, MSHA’s efforts at damage control appear to have produced other welcome benefits. The union informed Amos it would drop its grievance. Although OSC told us they had no comment on their investigation into Amos’s complaints, an Oct. 28 email to him from an OSC staff attorney indicated OSC was dropping Amos’s prohibited personnel practices inquiry. Amos said the MSHA representatives also left the impression they intended to reach out to the Galena miners.

We contacted MSHA to get their side of this story and to request they make Gust available for interview. The agency declined both requests, but in so doing left an impression of unfinished business. “This issue involves an ongoing personnel matter, which we can’t comment on,” agency spokeswoman Amy Louviere said Nov. 9. Crapo’s staff did not respond to a call to his Boise office for information on the status of the investigation reported by the newspaper. 

A Learning Opportunity

The experience, painful as it must be for the agency, presents a learning opportunity. For starters, MSHA might wish to take a look at its hiring practices. Gust’s employment with the agency was his second time around. He had worked there years before and had engaged in behavior that should have raised a red flag when he was considered for employment again.  On the second go-around, some individuals who have come into contact with him describe Gust as “out of control, “very confrontational,” “a bit pushy,” and a “bully.” History was repeating itself.    

In addition, Amos’s complaints about Gust’s forceful enforcement approach at Galena should have been taken more seriously. According to Amos, Jacobsen brushed him off by supporting Gust and saying that Amos should stand with Gust, too. This attitude appears to highlight a reflexive tough love mentality at MSHA toward mine operators in general. Maybe that was appropriate at Galena or maybe not, but apparently what did not register with the Boise Field Office was that it was not just the operator this time who was doing the hollering; miners were as well. Amos also should have been shown the professional courtesy of being apprised periodically about the status of MSHA’s “investigation” into the miners’ complaints, which most certainly should have been concluded more quickly and disciplinary action taken, where appropriate.   

MSHA needs to ask itself why it allowed this situation to spin wildly out of control. Because there were serious personnel, managerial, cultural and communication lapses, it may be the problem this painful experience has exposed is systemic within the Western District, perhaps beyond it.  When it comes to potential safety hazards, MSHA encourages mine operators to “find and fix.”  The same advice should apply to MSHA and its internal organizational shortcomings.

Copyright 2016, James Sharpe, CIH. All Rights Reserved.

      

MSHA Seen as Bully in Warrior Coal Case

The Mine Safety and Health Administration persisted in pursuing a citation against a Kentucky coal operator even after the agency no longer had a practical reason for doing so.

In May 2011, an inspector issued a withdrawal order after finding multiple alleged hazardous roof and rib conditions at Warrior Coal, LLC’s Cardinal Mine. Suspecting the alleged hazards may have existed on multiple shifts, thereby potentially implicating management, MSHA opened an investigation under Section 110(c) of the Mine Act to try and determine if any of Warrior’s “agents” – directors, officers, supervisors and the like – were aware of the allegedly hazardous conditions but did nothing to prevent them.

To facilitate its investigation, MSHA said it needed to interview individual miners. To that end, it asked Warrior to turn over the names, addresses, positions, shifts worked and phone numbers of all Cardinal employees. The company refused, citing in part the miners’ right to privacy. Warrior offered to cooperate only if MSHA first obtained employees’ permission for Warrior to turn over what MSHA wanted. A three-week stalemate ensued, after which MSHA cited Warrior for violating Section 103(h) for not providing the information, followed by a failure-to-abate enforcement action.

Section 103(h) provides in relevant part that operators are required to turn over to MSHA  “such information as the Secretary [MSHA] may reasonably require from time to time to enable him to perform his functions under this Act,” even if that information is not otherwise required under MSHA’s regulations.

According to the agency, MSHA never got the sought-after contact information. Nevertheless, it closed its special investigation in 2011 without taking further action against the company or its managers. Therefore, one might think MSHA would vacate a citation proven to have been pointless because the employees’ contact data had not been needed to complete the special investigation. But you would be wrong. In MSHA’s view, the citation was valid because Warrior violated the law, and by Jove the company was going to pay for its insubordination. It took four years and lots of taxpayer-funded government legal resources, but Warrior did have to pony up. Two months ago, the Federal Mine Safety and Health Review Commission upheld the citation and $550 fine that one of its judges had approved years earlier.

Commissioner William Althen concurred with the Commission majority’s decision, but dissented on other grounds. In so doing, he couldn’t resist tweeking MSHA in a pair of footnotes. He noted that the agency collected a monetary penalty over Warrior’s refusal to provide records that “were of no real interest to MSHA” because the agency closed its special investigation without ever getting them.

Some might describe MSHA’s dogged pursuit of “justice” as institutional intransigence. To us, though, the agency was just being a bully.

Copyright 2016, James Sharpe, CIH.  All Rights Reserved.  

MSHA Gets Mere Hand Slap for Playing by Its Own Rules

MSHA Gets Mere Hand Slap for Playing by Its Own Rules

By James Sharpe, CIH

Review of a long-delayed response to a Freedom of Information Act (FOIA) request is a disturbing reminder from the past of two unpleasant truths: the Mine Safety and Health Administration plays by its own rules when procedures set up to govern its behavior get in its way, and an interdepartmental unit designed to assure MSHA toes the line was largely ineffective in policing the safety agency. 

What brings these painful realities into focus was a contract between MSHA and a private vendor to supply the agency with a driver to operate a leased vehicle dedicated to mail and messenger services. According to five-year-old contract language, the agreement unequivocally stated that the driver may transport MSHA personnel to and from locations on the mail pickup and delivery routes, but only as an incidental function and strictly in conjunction with the primary mission. Personnel transport “shall not take precedence over the major tasks of providing mail/messenger services,” the deal stipulated. Yet, despite this clear statement, the driver’s chief function was to move people, not mail.

MSHA Plays by Its Own Rules

FOIA Memos

In 2012, as editor at the time of a newsletter focused on mine safety, I received a tip that MSHA was abusing its courier contract, so I filed a FOIA request on September 11 of that year for a copy of the agreement. I also asked for logs the driver kept that chronicled the daily demands of his job. Soon afterwards, I received a second tip alleging that agency staff had been directed to slow-motion my FOIA request. Suggesting the tip was on point, over a month went by with nothing from MSHA. So I shot off a second FOIA memo on October 17, 2012. “It has come to my attention that MSHA may be unnecessarily delaying its response” to my September FOIA submittal, I wrote. So I asked for all communications related to that submittal among MSHA personnel and between MSHA employees and those of any other federal agency, including the Department of Labor (DOL). When yet another month passed devoid of anything from the agency, I launched a third FOIA on November 15 for a copy of all communications between the driver and members of MSHA’s executive suite.

MSHA’s response to my initial FOIA inquiry finally arrived on December 12, 1212, more than 90 days after my request was made. Responses to the remaining two FOIAs trickled in, but, with one exception I’ll get to later, they were not very illuminating. The documents were unrevealing because they were heavily redacted under either of two FOIA exemptions. One exemption protects internal, pre-decisional communications of government personnel if the disclosure would adversely impact the consultative functions of government. However, since the response to my first FOIA foray had already arrived, we were now in the unprotected post-decisional stage. On that basis, I appealed to the Solicitor of Labor (SOL) for the redacted information. I had to resubmit the appeal when an SOL official claimed I had not stated a reason justifying my initial appeal. The re-appeal was filed on February 18, 2013.   

The delay arising from that appeal actually made MSHA’s obstructionism look good. Whereas the safety agency’s pokiness was measured in months, SOL’s stretched into years ‒ over three years in fact. In March 2016, my patience exhausted, I asked Senator Tim Kaine of my home state of Virginia for help. Thinking, though, that I needed to drop an even bigger name, I went to the top by contacting the White House through its website. On May 13, 11 pages of unredacted information I had been seeking since early in 2013 finally arrived.

Recall that my last two FOIA requests to MSHA were for internal communications which might verify agency reluctance to release the contract and logbook entries I had asked for initially. Sure enough, the SOL documents contained the evidence, as the following reveals. Just a week after my September 2012 filing, the documents had been rounded up. I know because they showed up as attachments to an internal MSHA email. The next day, September 19, MSHA’s FOIA Officer sent an email containing a simple “Per your request.” message along with two attachments, identified as “sharpe.sf50.pdf” and “sharpe.van.pdf,” to a public relations staffer in the agency’s executive suite. Most certainly, those files were the contract and logbook pages. Rather than being sent directly to me, the contract and logbook information had gone instead to MSHA’s top brass. Later email correspondence confirmed that my FOIA request had been discussed with a Deputy Assistant Secretary.

Hardly a coincidence, September 19 was also the day MSHA applied the brakes. Its FOIA Officer, no doubt marching to a directive from the corner office, messaged internally that any work on the FOIA, including the acknowledgement letter, was to be put on hold. When the red light flashed before the eyes of a clearly perplexed Facilities staff member who was in the loop, he asked, “Why are they holding this FOIA?” No reply showed up in the email paper.

Subsequent emails suggest the hold was lifted on September 27. If so, since the documents were already in hand, it should have taken little additional effort to get them out the door. But MSHA wasn’t prepared to do that. In an email within headquarters that day, a FOIA staffer stated she had been told to release an acknowledgement letter to me but to include “that it will take ‘90’ days for us to process.” True to that schedule, MSHA timed release of the documents so they hit the 90-day arrival deadline nearly on the button.

A takeaway from this experience is that, for an agency that requires mine operators to follow the law or else, MSHA has a very flexible attitude toward laws that apply to it. Under FOIA, federal agencies must complete requests “promptly.” It’s hard to see how 90 days meets that requirement. Moreover, nothing in the statute permits foot-dragging from a federal agency merely because requested documents might make the agency look bad.  As we’ll see below, a black eye is exactly what the documents give MSHA.

Ineffective OIG Investigation

DOL’s Office of Inspector General (OIG) launched an investigation in 2012 after DOL received an anonymous complaint alleging that “senior executive leaders” at MSHA were using a leased luxury vehicle, a Chrysler Town & County van equipped with leather seats, for personal travel. The allegation caught OIG’s attention because government rules do not allow federal workers to use government-financed vehicles for personal use. Key to the OIG query was MSHA’s contract for courier services, the very document I was seeking in my first FOIA. Since MSHA probably anticipated an unfavorable outcome from OIG’s work, it surely was thinking damage control when my timely FOIA plopped into its midst, a mindset that could explain its officially sanctioned delay in responding to my request.

OIG could not confirm the personal travel allegation. However, in its report released in 2013, investigators said the inquiry had uncovered “several concerns.” The first was that the contract statement of work did not accurately reflect the van driver’s primary duties. In reality, the purpose of the contract was to provide transportation for high-ranking MSHA officials on official business rather than to deliver mail and messages between MSHA’s Northern Virginia offices, DOL headquarters in downtown D.C. and other public and private locations. Although OIG did not say so explicitly, such use is a clear violation of the contract. Moreover, the main focus as a people mover meant the contract was actually a personal services agreement not allowed by DOL. (According to the OIG report, my FOIA triggered a pow-wow over the contract between MSHA and SOL. That led to a legal opinion that the van could be used for independent official travel no more than 20% of the time.)

Second, there were “excessive costs” associated with the contract and with the lease agreement for the vehicle. Specifically, MSHA was paying the company supplying the driver $46 a hour for the worker’s services during regular business hours and $60 an hour for overtime, when the government’s regular hourly approved rate for contract drivers doing similar work was $13.98. In addition, the cost for the van was $1,150 a month during the first year of the lease, reduced to $530 and $375 a month, respectively, during the second and third years. OIG also criticized MSHA’s decision to get the van through a private leasing company rather than through the government’s leasing service, where, according to an MSHA contract officer, a vehicle could be obtained for roughly $220 a month.   

In a memo to MSHA Assistant Secretary Joe Main, an OIG official briefly summarized these findings. He then asked the Assistant Secretary to let him know what Main planned to do regarding the issues OIG had identified. The official asked to be copied on any documentation Main might take should “you decide to initiate any corrective action or take any disciplinary action as a result of this report.” On March 28, 2013, Main responded. He said he had instructed staff to revise the contract and noted that MSHA had acquired a vehicle through the government’s leasing service. There was no mention of what the re-negotiation would entail or of any disciplinary action.

The outcome of OIG’s investigation was disappointing. “[M]isuse,” OIG’s single-word summary to describe the depth of wrongdoing, is a euphemism for egregiously foul conduct. Although disinclined to mention it in its investigation summary, OIG heard testimony that the travel-oriented abuse of the contract had actually begun when the contract was first approved about a decade before. Thus, from day one, the contract had been a scheme sanctioned by MSHA’s top officials to skirt departmental rules. Moreover, the waste of taxpayer funds was flagrant: in the first year of the renewed agreement, which began on July 1, 2011, MSHA spent just shy of $124,000 for the driver alone (the vehicle was a separate expense), twice the money stipulated in the contract. No one had an answer for the OIG as to who approved all this money, a significant portion of which went to pay overtime to ferry around officials before and after the driver’s regular work shift.

Main’s silence on disciplinary action could hardly have been an oversight. It seems likely no punishment was ever dispensed. The logs show Main himself used the van more frequently than nearly everyone else. He couldn’t very well punish his underlings when he was an active participant in the scam. In fact, Main apparently took the abuse one step further. The Assistant Secretary uses a commuter rail service for his long commute from his home south of Fredericksburg, VA. Main’s disembarkation point has since changed, but for about five years from October 2009 forward, the date Main assumed command of MSHA, he usually exited the train at Union Station in the District of Columbia. That meant he still had personal responsibility to get to his workplace, MSHA headquarters across the Potomac River in Arlington, VA.   

Yet one official told investigators there had been “ ‘some talk’ ˮ among MSHA employees of seeing the driver pick up Main in the government vehicle at the train station. The van driver admitted he picked up Main at the terminal and whisked him to DOL, but “only on an occasional basis and not [as] part of his commute to work.” Another MSHA official noted that on several occasions after late day meetings, the driver would return the van to agency headquarters after detouring to Union Station to drop off Main for his return trip home. The logs show a late-day drop for Main on May 4, 2011 and morning pickups in 2012 on January 12 and February 1. This information would seem to have been sufficient for a deeper probe into Main’s use of the van for his personal use, but the OIG declined go there.

In contrast, another government watchdog did take exception to the commuting travel arrangements of a deputy director of the Defense Intelligence Agency. In a March 29, 2013 article, the Washington Post described the commute of a now-retired official from his home in suburban Virginia to DIA headquarters in D.C. He would first drive his car to an intelligence facility in Northern Virginia, park it there, briefly go into the office, then take a government-provided vehicle for the rest of the trip. The director’s arrangement “ ‘could be characterized as a personal limousine service based solely on reasons of rank, position, prestige or personal convenience,’ ˮ wrote the Pentagon’s Inspector General, who documented 43 trips to DIA headquarters that were “ ‘essentially’ ˮ home-to-work trips at government expense. Main’s commute was different, but his pickups and drop-offs at the train station in a government vehicle were at the taxpayers’ expense.

Although DOL’s OIG posts its investigative reports on its public website, to this day the MSHA probe has never been among them. We got a copy through a FOIA request.

In the FOIA section above, we stated that there was one exception to the bland responses MSHA sent us to fulfill our final two FOIAs. One set of responses included driver logbooks between September 18, 2012 and November 15, 2012. Unlike the previous set of logs we received as a result of our first FOIA request, which documented a large number of people runs independent of mail runs, this set was noteworthy by the absence of such references. In other words, the logs were now being written to keep out incriminating entries. The proximity in time between this change and our FOIA memo just a week before may be coincidental, but we doubt it. As every mine operator knows, fudging safety documents is a felony. Preparing washed out driver logs is certainly not as heinous as lying about mine examiner certification or miner training, but because its intent to deceive is still the same, the perpetrator and co-conspirators should suffer consequences. After all, shouldn’t what’s good for the goose also be good for the gander?

Copyright 2016, James Sharpe, CIH. All Rights Reserved. (Reprint by Permission Only)