Editor's note: The following is the written response from the Mine Safety and Health Administration about the delinquent mines investigation by NPR and Mine Safety and Health News. NPR and Mine Safety and Health News stand by our reporting. As for the suggestion that the analysis included mines that are not truly delinquent, NPR used the same standard that MSHA uses when it reports to Congress and the Treasury Department -– with the additional step of eliminating debts that were 90 days old or less.
Mine operators have the primary responsibility under the Mine Act to prevent the existence of unsafe and unhealthful working conditions. When they fail in their responsibility for compliance with the Act and its standards and regulations, MSHA uses the enforcement tools it has at its disposal. As a result of, and immediately after the Upper Big Branch Mine disaster, those tools now include an enhanced enforcement program to provide a more effective means of improving working conditions in the mines of chronic violators.
Specifically, through MSHA's impact inspections and Pattern of Violations program, the Agency provides extra scrutiny where necessary. That extra scrutiny included some mines that had delinquent debt. Some mines closed, but others improved their compliance significantly. While we don't want to diminish the problem of mine operators not paying penalties, inspectors conducting inspections and observing conditions at mines – as part of MSHA implementing these tools and during our regular mandated inspections – are the best indicator we have of risk to miners. The bottom line is that MSHA's approach is working and miners are healthier and safer as a result.
MSHA is required by law to refer debt that is more than 180 days old to the Treasury Department, which is the collection agency for the Federal Government. About 90% of total MSHA penalties (both delinquent and non-delinquent debt) are collected. For uncollectible debt, MSHA has and continues to work together with Treasury to ensure that operators are sent 1099C forms so the uncollectible debt is treated as taxable income. Between FY2012 and FY2014, 1099C forms were sent to 252 mines which owed debt in excess of $12 million.
MSHA is very concerned about scofflaw operators and has, in some cases, taken debt back from the Treasury to pursue actions for injunctive relief – one of our most powerful tools – against those mines that owe penalties and have problems that present a continuing health and safety threat to miners. In this way, MSHA's scofflaw program is part and parcel of our enhanced enforcement program. In the past three years, MSHA has brought nine actions in the federal district court against scofflaw operators and received judgments totaling over $3 million in penalties, along with other relief.
In order to further implement the Mine Act's stated purpose, MSHA has used a 104(a) citation, followed by a 104(b) withdrawal order, in certain circumstances. The most recent case involved about $30,000 in delinquent penalties and involved a controller with a previous history of scofflaw activities. As a result of MSHA's enforcement actions, the operator has executed a payment agreement for the penalties. MSHA has considered and will continue to consider the use of this approach on a case-by-case basis in the future. In addition to the existing tools at MSHA's disposal, the Agency has and continues to support legislative reform, like the one in the Robert C. Byrd Mine Safety Protection Act, that would specifically authorize MSHA to close down a mine if penalties are not paid.
As a final note, MSHA was pleased to provide data on penalties and other information for your reports, but we explained to you at the outset and throughout the process the limitations of the data and the potential problems in your methodology. As we noted, it was inaccurate to pull data from MSHA's Debt by Age Report and summarily report it as delinquent. We advised you that additional data and more comprehensive information is required to perform the type of analysis you attempted. One of the major reasons MSHA prides itself with being transparent and readily making its data available to researchers, health and safety professionals, members of the press, and others is so it can be analyzed and used to benefit miners and improve safety and health. It appears to us that the way you associated injury rates, fatalities, and other important data to specific companies is flawed resulting in inaccuracies. For example:
- At the time of the accident at the Darby Mine, Kentucky Darby only owed $1,819 in delinquent civil penalties, and it wasn't until violations were issued as a result of the accident that Kentucky Darby became a serious scofflaw and accumulated a much larger amount of delinquent debt.
- You also cited delinquent penalties at several large companies whose mines experienced fatalities. Yet, these companies – Arch Coal, Alpha, Consol, Jim Walters, Martin Marietta and Murray Energy – paid and continue to pay their fines.
- Finally, you listed the 10 top "owners/controllers" of delinquent debt, but the mine operators are responsible for paying civil penalties and the story failed to note the difficulties of collecting debt from "owners/controllers" that are not legally responsible for the civil penalties. MSHA filed complaints against three of the top 10 "owners/controllers," obtaining judgments against each. These three companies, D&C Mining, Kentucky Darby and Wilcoal Mining, are no longer in business. Of the remaining seven owners, four are no longer in business and a fifth filed for bankruptcy. MSHA and Treasury have been in payment discussions with other delinquent operators.
Regarding the "early warning system," that project was in the earliest conceptual phase at the time of your interview with Mr. Main and there was nothing yet to discuss. If our efforts in developing this system are successful and we implement a tool to do this, we can discuss it with you further at that time.
We agree with you that mine operators should pay their penalties promptly, and appreciate the attention your story has brought to this issue. We will continue to take efforts to assure that result. We appreciate your continuing interest in the health and safety of our nation's miners.