People at an April 2010 memorial vigil remember 29 miners who died in the explosion at Massey Energy Co.'s Upper Big Branch mine in Montcoal, W.Va. A year after the disaster, an independent report criticizes federal inspectors for laxity and missing important clues leading to the explosion. The report also briefly mentions another problem that has eluded remedy for years: Most of the dead miners had the disease known as black lung. The Associated Press / Amy Sancetta
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The mining industry, under increased scrutiny a year after the deadliest U.S. mine accident in decades, is asking the government for a more cooperative form of regulation that would allow some mines to avoid regular inspections.

Testifying before a Congressional subcommittee this week, industry representatives said the Mine Safety and Health Administration should move beyond enforcement alone and launch a voluntary program similar to one that has proven popular at a range of workplaces, from paper mills to chemical plants.

The proposal, arising 13 months after 29 workers died in an explosion at Massey Energy’s Upper Big Branch mine in West Virginia, points to the Occupational Safety and Health Administration’s Voluntary Protection Program as a potential model. That program, known as VPP, recognizes companies that can demonstrate top-notch safety and health programs – and offers an exemption from some of the agency’s inspections.

“In many respects, overly proscriptive regulatory requirements can inhibit the ability of companies to respond proactively to health and safety issues,” Anthony Bumbico, the vice president for safety at Arch Coal, said during testimony on behalf of the National Mining Association before the House Subcommittee on Workforce Protections. One possible solution, he said, is a program like VPP, which requires participants to submit annual self-evaluations and submit to periodic on-site evaluations – typically every three to five years.

Federal regulators defended their current inspection program. In a written statement to iWatch News, MSHA head Joseph A. Main noted that his agency conducts multiple inspections each year of every mine, while OSHA inspections of other workplaces are much less common. “If you look at the reduced number of deaths in mining, the Mine Act and mandatory inspection program has been effective and saved lives,” Main said. “I believe that, for mining, the mandatory inspection process should continue.”

A spokesman for the National Mining Association, Luke Popovich, said the proposal was not a push for deregulation and noted that the association recognizes that there is still a need for strong enforcement in appropriate cases.

“We’re not approaching this from the standpoint of, how do we get regulators off our back?” said Popovich. “We’re approaching it as, how do we get off our back and become the safest mining industry in the world?”

Phil Smith, communications director for the United Mine Workers union, said having such a program would be a mistake. “This an industry that has consistently shown it can’t police itself,” he said. Aaron Albright, a spokesman for the Democratic minority on the House committee, agreed, calling a program based on self-policing “a nonstarter.” Of the idea that participation would be reserved for only the safest mines, Smith said, “Today’s good apples were bad apples at one time, and they’ve demonstrated that they’ll slide back into that.”

The arguments in favor of a cooperative program run by MSHA resemble those made in support of VPP: regulators are overstretched, and enforcement alone can’t change the safety culture and ensure workers are protected. Created in 1982, VPP has grown to include more than 2,400 workplaces, largely because of its rapid expansion under the George W. Bush administration.

But a 2009 report by the Government Accountability Office found that OSHA hadn’t evaluated the program to determine whether it worked and that lacked sufficient oversight to determine whether all participating sites were qualified. Under the program, “model workplaces” seen by regulators as having exemplary safety records are bypassed by inspectors unless a serious accident occurs or a formal complaint is made.

The mining industry’s request for a more cooperative approach to regulation comes as the agency has taken steps to get tougher with problem mines. Less than a month ago, for example, the agency for the first time issued notices to two mines alleging a pattern of violations.

And this week the agency found a series of violations after a surprise inspection at a mine owned by Massey Energy. The violations alleged at the company’s Randolph Mine in Boone County, W. Va., could have led to explosions or, eventually, black lung, the agency said.

At a time when the agency is finally starting to get the resources it needs, Albright said, starting the proposed cooperative program would be “the exact wrong direction.”

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