MSHA, OSHA, and "Compliance Assistance"

By Liz Borkowski 

Although work has begun on a fifth borehole into the Crandall Canyon mine, officials acknowledged yesterday that the six miners may not be found. This LA Times article describes the anguishing choice between leaving the miners underground â a notion âakin to soldiers leaving comrades on the battlefieldâ â and risking more fatalities in a rescue operation thatâs already claimed three lives.

In todayâs Washington Post, Karl Vick and Sonya Geis report that the focus has now shifted to determining the cause of collapse, and the retreat mining techniques being used are the first thing many people will examine. MSHA will also come under scrutiny, for a couple of reasons.

Vick and Geis write that MSHA approved Crandall Canyonâs mining plan, as well as the rescue plan that ended in three deaths. They quote Tony Oppegard â a senior official at MSHA during the Clinton administration â voicing a point that some bloggers have already raised:

âMSHA probably gave [the mining plan] cursory review, and you have to wonder if they gave it cursory review because of who they were dealing with: Bob Murray,â Oppegard said.

Why might Bob Murray have gotten his mining plans approved easily? An 8/8/07 Salt Lake Tribune article describes his political donations â $213,000 to Republican candidates from Murray over the past decade, and $724,500 to Republican candidates and causes from PACs tied to Murrayâs businesses â and a report that he used political ties to get back at a safety regulator who had crossed him.

If Murrayâs mining plan didnât get the attention it should have, larger agency factors might also play a role. Vick and Geis look at whatâs been going on at MSHA:

The agency's commitment to safety enforcement has been a recurring question under the Bush administration. Dave D. Lauriski, a former mine operator from Price, Utah, who headed the MSHA from 2001 to 2004, shifted the agency's mission from regulation to "compliance assistance" -- persuading mine owners to make changes rather than fining them for infractions.

Mine inspectors were even renamed "compliance assistance specialists" until an outcry forced a reversion to the original job title.

"Every minute you spend on compliance assistance is a minute you're not spending on enforcement," Oppegard said. "My view is compliance assistance took a few years to take root, and now we're seeing the effects of it."

Washington plays one more role in the tension between financial returns and safety. Mine operators note that, in the West, most mineral rights are leased from the federal Bureau of Land Management or the U.S. Forest Service. Those agreements mandate "a maximum economic recovery" of the leased resource, a prod to mine as aggressively as possible, one operator said.

Where have we heard before about the consequences of shifting a regulatory agencyâs mission from regulation to âcompliance assistanceâ? Hereâs a paragraph from an April New York Times article by Stephen Labaton:

âOSHA has been focusing on the best companies in their voluntary protection program while doing nothing in the area of standard setting,â said Peg Seminario, the director of occupational safety and health at the A.F.L.-C.I.O. âTheyâve simply gotten out of the standard-setting business in favor of industry partnerships that have no teeth.â

The article highlights the example of diacetyl, an artificial butter flavoring substance thatâs been linked to severe, often fatal, lung disease in workers who are exposed to it. Here at The Pump Handle, weâve been pushing OSHA to address this hazard for a long time (see our past posts on the topic here), and have been less than fully satisfied with the agencyâs response.

Labatonâs article appeared above the fold on the front page, and was accompanied by a photo of Eric Peoples, a 35-year-old former worker from a Missouri microwave popcorn plant (PDF, including photo, here). Like too many other workers from food and flavoring factories, he has bronchiolitis obliterans â a disease that, as the name suggests, effectively obliterates the lungs. Peoples testified at a hearing before the House Education and Labor Committee:

Let me bring it home to you if I can. I have a 24% lung capacity. I am currently on the inactive Lung Transplant registry. One case of pneumonia could cause me to need the transplant now. The average rate of survival for someone with a lung transplant is about five years. 75% of lung transplant patients are dead after 10 years.

One of the doctors who worked on the first case involving the two workers with bronchiolitis obliterans in 1990 said that the flavoring industry was using workers as âblue collar guinea pigs.â

I played by the rules. I worked to support my family. This unregulated industry virtually destroyed my life. Donât let it destroy the lives of others. These chemicals that are used on food in large scale production must be tested and proper instructions and labeling supplied with their sale.

Itâs a simple request: a worker whoâs played by the rules wants employers to do the same, in order to spare others from his terrible fate. Getting employers to play by the rules isnât always so easy, though, since thereâs often a strong financial push to cut corners. We need regulatory agencies to create just as strong a push for safety â and sometimes, thatâs going to mean being tough on industries that have made lots of campaign contributions, not avoiding confrontation with âcompliance assistance.â

An investigation will tell us more about MSHAâs role in this particular tragedy. In the meantime, miners can hardly be cheered to know about the shift to âcompliance assistance.â In industries like mining, having strong rules and enforcing them is a life-or-death matter.

Liz Borkowski works for the Project on Scientific Knowledge and Public Policy (SKAPP) at George Washington Universityâs School of Public Health and Health Services.