Saving Lives or Wasting Resources? The Federal Mine Safety and Health Act

Most Americans take for granted the federal

government’s role in protecting workers from

injuries that might occur on the job. The popu-

lar notion is that, without the Occupational

Safety and Health Administration and its sister

agency, the Mine Safety and Health

Administration, some companies, perhaps many,

would not invest in safety, which would lead to a

rise in workplace accidents in the United States.

The problem with the popular perception is that

it is based more on faith in beneficent govern-

ment than on facts about government interven-

tion in workplace safety.

Although MSHA has claimed success, there is

no reliable evidence indicating that the Federal

Mine Safety and Health Act of 1977 has made

the nation’s mines any safer. It is actually more

likely that the act’s substitution of rules for

results, of government vigilance for employee

vigilance, and of sanctions for cooperation has

slowed the historic trend toward safer mines.

Despite the questionable benefits bestowed by

the act, special interest groups and MSHA have

successfully defended it against proposals for

reform. As a result, consumers and taxpayers are

left paying the substantial direct and indirect

costs of federal intervention.

The best solution may be to repeal the Mine

Act. Contrary to popular belief, there are sub-

stantial incentives in place that encourage mine

operators to make investments in safety. One of

the most notable incentives is the compensating

wage differentials that miners demand for

undertaking more hazardous work. By respect-

ing the risk-for-pay decisions made by individual

miners, the federal government might be able to

achieve its objective of making the nation’s

mines safer.

Saving Lives or Wasting Resources?

The Federal Mine Safety and Health Act

by C. Gregory Ruffennach

_____________________________________________________________________________________________________

C. Gregory Ruffennach is an attorney specializing in mineral law in Durango, Colorado.

Executive Summary

No. 453

September 19, 2002

We shall not grow wiser before we learn

that much that we have done was very

foolish.

—F. A. Hayek

The 1977 Federal Mine Safety and Health

Act (hereinafter Mine Act), which is rapidly

approaching its 25th anniversary, was passed

by Congress “to provide a more effective

means” of preventing death and serious phys-

ical injury in the nation’s mines.

To that end,

the act created a federal law enforcement

scheme consisting of regulation, inspection,

and sanction. The tripartite forced compli-

ance scheme was supposed to be more effec-

tive, not only than its forerunner, the Federal

Coal Mine Health and Safety Act of 1969

(hereinafter Coal Act), but also than the other

federal mining laws that preceded it. Prior to

the 1969 Coal Act, the federal government did

not take a forced compliance approach to

mine safety. Although the Bureau of Mines,

which was created as a federal agency in 1910,

had limited enforcement authority at certain

coal mining operations by 1952, it was pre-

dominantly an informational agency.

The Labor Department, whose Mine

Safety and Health Administration is charged

with implementing the Mine Act, has always

maintained that the forced compliance

approach required by the act has been more

effective than the informational approach

taken by the Bureau of Mines. In fact, former

labor secretary Robert Reich has gone so far

as to hold out the Mine Act as the epitome of

effective government enforcement:

It’s become fashionable lately to dump

on Washington, to say the federal gov-

ernment is just too nosy, too demand-

ing, makes too many rules. The triumph

of the mine safety and health program

serves to remind us of the good that

government can do.

Similarly, Davitt McAteer, who held the top

spot in MSHA under the Clinton adminis-

tration, has repeatedly boasted that the Mine

Act is a “scheme that works.”

Regardless of whether or not it is fashion-

able to “dump on” the federal government as

Reich contended, it is certainly not fashion-

able to question the federal government’s law

enforcement role in mine safety. As Rep. Cass

Ballenger (R-N.C.), chairman of the House

Subcommittee on Workforce Protections,

noted during a congressional hearing on the

Mine Act in 1998,

I am well aware of the fact that even to

raise these issues is to invite criticism

and demagogue, as being uncaring

about miners, especially underground

coal miners, whose work, I know, is haz-

ardous and difficult.

Ballenger was speaking from experience

because, three years earlier, his modest pro-

posal to reform the Mine Act along with the

Occupational Safety and Health Act of 1970

was characterized by organized labor as “the

Workplace Death and Injury Enhancement

Act (DIE Act).”

Nonetheless, after more than a quarter of a

century of federal policing of the nation’s

mines, it is appropriate to attempt to deter-

mine whether the Mine Act has provided a

more effective means of preventing miner

deaths and injuries than did the information-

al approach that predated it. The determina-

tion is legitimate not only from a statutory

perspective but also from the larger perspec-

tive of wisely allocating society’s scarce

resources. Although proponents of the Mine

Act often tout its purported lifesaving features

and even attempt to identify specific individu-

als who could have been saved with more vig-

orous enforcement,

it is essential to keep in

mind that the resources dedicated to the pro-

tection of adult miners at the workplace are

resources that cannot be used for other pur-

poses, such as preventing the accidental

deaths of children at home. While “we might

all be happier in a world where there were no

such constraints to force us into choices and

trade-offs that we would rather not face,”

the

fact of the matter is that, in a world with finite

resources, such tradeoffs are inescapable.

Resources

dedicated to the

protection of

adult miners at

the workplace

are resources

that cannot be

used for other

purposes.

Forced compliance has not been more effec-

tive in preventing death and serious physical

injury in the nation’s mines than the policy of

information that preceded it.

Since the turn of

the 20th century, fatalities in the nation’s mines

have been steadily declining irrespective of fed-

eral police intervention. In fact, on a fatality per

million ton basis, it appears that the trend

toward fewer fatalities in the coal mines actual-

ly slowed after the forced compliance approach

was introduced.

Although that observation may come as a

surprise to people like Reich, who believe in

the capable beneficence of the federal gov-

ernment, it will not surprise those in the min-

ing industry who recognize that forced com-

pliance does not equate to improved safety.

The Mine Act attempted to resolve a per-

ceived, but probably not real, economic prob-

lem with a legalistic solution. The legalistic

approach, which substituted rules for results,

inspector vigilance for employee vigilance,

and sanctions for cooperation, was inferior,

in every respect, to the informational

approach taken by the Bureau of Mines.

Obviously, a legalistic approach that

yields no measurable benefits in terms of

lives saved while diverting resources from

wealth creation and even safety-related activ-

ities is not the best use of societal resources.

In this regard, the necessary corollary to the

sentiments expressed by Reich is that any

“good that the government can do” is only

good for those who reap the benefits. The

Mine Act benefits Labor Department

employees, organized labor institutions,

large unionized mine operators, and, of

course, attorneys,

to the detriment of the

people who might otherwise benefit if those

resources were put to other uses.

Because the Mine Act fails to achieve its

stated objective and squanders society’s

scarce resources, Congress should repeal, or

at least significantly amend, it.

In the

absence of federal policing, responsibility for

the safety of the nation’s mines would fall on

American society, state and local govern-

ments, and ultimately the individuals who

make up the mining industry. In the event

that there is a demonstrated market failure

once the forced compliance approach is

abandoned, the federal government should

limit its role to the tried and true approach of

providing information and, perhaps, creating

monetary incentives for additional invest-

ments in workplace safety. However, law

enforcement, in the limited circumstances in

which it is appropriate, should be left to local

authorities, which are accountable to the

communities that they serve.

The Emotional Origin of

Safety Regulation

The origin of federal police intervention

in the nation’s mines was, in large part, the

November 1968 explosion in Farmington,

West Virginia, that fatally injured 78 coal

miners.

Unfortunately, the Farmington

explosion was not the first or even the worst

coal mine disaster in our nation’s history.

According to MSHA, “the deadliest year” in

U.S. coal mining history was 1907, when

3,242 deaths occurred and a single mine

explosion killed 358 people near Monongah,

West Virginia.

Despite the tragic number of

deaths, mine disasters, such as Farmington

and Monongah, were not even the largest

contributors to the loss of life in the nation’s

coal mines.

The Farmington disaster was special

because it was the first mining disaster that

received nationwide media coverage.

According to one account, “The resolution of

the disaster . . . played out in the living rooms

of America” and “created a media circus that

would measure up to anything generated

since.”

Congress, responding in large part to the

publicity that the disaster received, convened

hearings on coal mine safety and health. The

focus of the congressional hearings was not

on the testimony of safety professionals,

actuaries, statisticians, and economists but

on the testimony of “daughters and wives” of

coal miners who had perished in the

Farmington mine.

Such emotional testimo-

Forced compli-

ance has not been

more effective in

preventing death

and serious phys-

ical injury in the

nation’s mines

than the policy of

information that

preceded it.

ny may have been appropriate to help a griev-

ing nation, but it was not an appropriate

foundation for a national workplace safety

and health policy, which it ultimately

became.

The Basic Economics of

Safety

Before 1969 the federal government had

taken, for the most part, a market-based

approach to mine safety.

In a market-based

approach, prices, which represent the prefer-

ences and values of individuals, are allowed

to determine how much of society’s scarce

resources are dedicated to mine safety.

The most obvious and important price

affecting the amount of resources committed

to mine safety is the price that a mine operator

must pay for mine labor. The price of mine

labor reflects, among other things, the risk

preferences of the available labor pool.

Where the individuals in the labor pool are

adverse to threats to life and limb, they will

either demand additional compensation, in

terms of pay or benefits, for hazardous jobs or

simply refuse to undertake such work.

The “risk premium” that a mine operator

must pay to attract an entire workforce of min-

ers to the mine and keep them there creates an

incentive for the operator to make the mine

safer.

Generally, when the price of risk premi-

ums paid to miners exceeds the price of adding

a safety practice or device, a mine operator will

invest in improvements to make the mine safer

in order to avoid paying more for labor.

Although research has not revealed any

studies that document the amount of differ-

ential compensation that miners receive for

agreeing to undertake more hazardous work,

it is worth observing that miners are better

paid than nearly all other workers.

According to the Bureau of Labor Statistics:

Average earnings in mining and quar-

rying were significantly higher than

the average for all industries. Workers

in underground mines also tend to

earn more per hour than miners on the

surface.

The National Mining Association boasts that

“the average miner makes $49,000 per year in

salary, not including overtime, bonuses and

benefits.”

Although the price of labor reflects the

risk preferences of individual miners more

than any other price, it is not by any means

the only price that encourages a mine opera-

tor to commit resources to mine safety. As

present MSHA administrator David Lauriski

has noted, “The cost of the average lost work

injury in mining could be on the order of

$10,000 to $30,000 per incident.”

The costs

for accidents resulting in injury arise from

investigating and reporting injuries, giving

first aid, losing production, training replace-

ment workers, and paying overtime to unin-

jured workers.

Those accident costs create a

strong incentive for a mine operator to com-

mit resources to injury prevention.

The price of insurance also creates a sub-

stantial incentive for a mine operator to invest

in accident prevention.

In all 50 states, mine

operators are required to maintain workers’

compensation insurance.

To a large extent,

the mine operator’s incentive to avoid the insur-

ance costs associated with compensable injuries

is a surrogate for the historical incentive to

avoid tort liability.

However, even with the tort

liability protections that state workers’ com-

pensation programs provide, the possibility of

liability to third parties, and even to employees

in certain cases, creates an additional incentive

for mine operators to prevent injuries to

employees.

In addition to prevention efforts,

employers generally mitigate those additional

potential liabilities with supplemental insur-

ance. To the extent that workers’ compensation

and supplemental insurance premiums are

experience rated,

they create an incentive for a

mine operator to invest in safety.

In addition to the direct incentives that a

mine operator has for avoiding injury to its

employees, a mine operator also has an incen-

tive to protect its equipment and facilities.

the mining industry, which is subject to fire,

The “risk premi-

um” that a mine

operator must

pay to attract an

entire workforce

of miners to the

mine and keep

them there creates

an incentive for

the operator to

make the mine

safer.

explosion, and ground failure risks, the costs of

an accident can be extraordinary because of the

equipment and facilities that are sometimes

destroyed.

Although losses of equipment and

facilities are generally covered by insurance, the

insurance, to the extent that it is experience

rated, does not reduce the mine operator’s

incentive to focus on loss prevention. More

often than not, the measures that reduce risk to

equipment and facilities have the corollary ben-

efit of reducing risk to miners.

The Informational

Approach to Safety

Regardless of whether its actions were

shaped by principle, political necessity, or inad-

vertence, the federal government’s initial foray

into mine safety focused on improving the mar-

ket for mine safety with information rather

than on displacing the market with police inter-

vention. In 1910 Congress established the

Bureau of Mines as an agency within the

Department of the Interior.

The bureau was

“an informational agency,” charged with con-

ducting research and reducing accidents.

The

bureau attempted to improve mine safety

through the dissemination of information to

both miners and mine operators.

Economic theory, which holds that “better

information can improve the workings of the

market for safety,” predicts that the bureau’s

efforts to disseminate information would

improve safety in the mines.

Information is

essential to the proper functioning of the mar-

ket for safety because the risk premiums

demanded by “informed workers merit more

respect than those of uninformed workers.”

a miner does not recognize and understand the

hazards that he faces at the mine site or erro-

neously assumes that he is exempt from risk,

he may not demand an adequate risk premium

from the mine operator. An inadequate risk

premium does not create a sufficient incentive

for the mine operator to invest in safety.

Despite the fact that it is essential to

informed decisionmaking, information has

deviant properties as a market good, which

means that in unregulated markets for safety

there may not be appropriate incentives to

develop and share information.

With

respect to the development of safety infor-

mation, Rhea Graham, former director of the

Bureau of Mines, explained,

In these areas [workplace safety and

health], the returns to society [based on

research and development] may be

large, but the returns to the individual

or private company may not be suffi-

cient to encourage investment.

For example, although coal mine explosions

accounted for significant loss of life and capital

in the first part of the 20th century, it was the

Bureau of Mines, not mine operators, that

established through study and experimenta-

tion that coal dust contributed as much to the

explosion problem as did methane and that

rock dusting was an effective preventive mea-

sure.

With respect to the sharing of safety

information, mine operators with poor safety

records have little incentive to share hazard

information with miners who might demand

higher wages.

The Bureau of Mines attempted

to fill the employee information gap, for exam-

ple, by distributing 352,000 “Miner’s Circulars”

to coal miners in 1912.

Although research has not revealed any

analysis that shows a statistically significant

correlation between the bureau’s dissemina-

tion of information and an improvement of

safety in the nation’s mines, Figure 1 shows

that after the bureau’s creation the number

of mine fatalities began a steady descent that

has only recently tapered off.

Although the correlation does not establish

that the Bureau of Mines contributed to the

decline in mine fatalities, specific instances in

which information disseminated by the bureau

directly and positively affected mine safety have

been well documented.

Congress granted the bureau greater

authority in the years following its creation,

but the bureau’s enforcement authority at coal

and noncoal mines remained minimal.

1941 the bureau was authorized to enter coal

Measures that

reduce risk to

equipment and

facilities have the

corollary benefit

of reducing risk

to miners.

mines, and in 1947 it was authorized to formu-

late a code of federal advisory regulations for

mine safety. The Federal Coal Mine Safety Act

of 1952, which was amended in 1966, and the

Federal Metal and Nonmetallic Mine Safety Act

of 1966 provided for the promulgation of

mandatory standards, inspection and investiga-

tion authority, and the issuance of violation

notices and withdrawal orders. However, under

both acts the imposition of civil sanctions was

limited to cases in which an inspector had been

refused access to a mine or in which there was

noncompliance with an inspector’s withdrawal

order. For the most part, the federal govern-

ment left law enforcement at mining opera-

tions to the individual states.

The Illusion of Resource

Misallocation

To a large extent, the 1969 Congress still

considered the problems with mine safety, as

exemplified by the Farmington disaster, to be

economic in nature. Specifically, Congress

determined that the mining industry did not

properly allocate its capital and human

resources. The 1969 Congress explained: “The

way that we mine coal today is not humanitari-

an, resourceful, or efficient. It is inexcusably

wasteful of our most precious asset—the

human being.”

Despite the numerous terrible coal mine

disasters that preceded passage of the Coal

Act, it is unlikely that coal mine operators

viewed labor as a resource that was abundant

enough to be wasted in 1969. As Figure 2

illustrates, since at least 1950 the coal mining

industry in the United States had been pro-

ducing more tonnage with fewer miners.

The trend suggests, contrary to congres-

sional views in 1969, that coal mine opera-

tors treated mine labor as a scarce resource

that needed to be conserved.

Nowhere is the conservation of coal mine

labor in the United States more evident than in

a comparison between coal mining in China

and in the United States. In China, where labor

is abundant and capital is scarce, it is estimated

that around 20,000 coal miners were fatally

injured while producing about 1.2 billion tons

of coal in 1999.

In the same year, in the United

The trend sug-

gests, contrary to

congressional

views in 1969, that

coal mine opera-

tors treated mine

labor as a scarce

resource that

needed to be

conserved.

Figure 1

Annual U.S. Mining Fatalities

Sources: Author’s calculation (metal/nonmetal fatalities = coal fatalities) based on data from U.S. Department of

Labor, MSHA Internet, Metal/Nonmetal Fatalities 1900 [1911] through 2001, www.msha.gov/centurystats/mnm

stats.htm; and U.S. Department of Labor, MSHA Internet, Coal Fatalities for 1900 through 2001, www.msha.gov/

centurystats/coalstats.htm.

Coal Act

Mine Act

250

500

750

1,000

1,250

1,500

1,750

2,000

2,250

2,500

2,750

3,000

3,250

1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000

Metal/Nonmetal

Coal

Year

Bureau of Mines

States, where capital is abundant and labor is

scarce, only 29 miners were fatally injured while

producing approximately 1.1 billion tons of

coal.

Thus, it appears that the resource allocation

issue that Congress was determined to address

in 1969 may not have been as bad as Congress

made it out to be, if it existed at all. In 1969, 203

coal miners died producing 570,670 thousand

tons of coal; whereas 35 years earlier, in 1934,

1,226 coal miners died producing 416,166

thousand tons of coal.

Although Congress

heard it otherwise, the clear trend, for whatever

reasons, was toward conserving the lives of coal

miners.

The New Regulatory Road

Ironically, although the 1969 Congress

characterized the problem as one of resource

allocation, it did not opt for an economic

solution to the perceived problem. Instead,

Congress and the Nixon administration,

both of which consisted of more lawyers than

economists, determined that “a strong law is

necessary to protect the men who extract one

of our Nation’s most vital resources.”

The

“strong law” was, of course, the 1969 Coal

Act, which put in place a law enforcement

scheme of regulation, inspection, and sanc-

tion for the nation’s coal mines. The Coal Act

assigned “legal rights and duties,” placing the

“duty” to maintain a safe workplace on the

coal mine operator and granting the “right”

to a safe workplace to the coal miner.

The 1969 Congress charged the Bureau of

Mines with implementing the new assignment

of safety duties and rights within the nation’s

coal mines. In 1973 the Department of the

Interior transferred the bureau’s new enforce-

ment functions to the Mine Enforcement

Safety Administration.

The enforcement pow-

ers transferred to MESA, which at the time of

It appears that

the resource allo-

cation issue that

Congress was

determined to

address in 1969

may not have

been as bad as

Congress made it

out to be, if it

existed at all.

Figure 2

Conservation of Coal Mine Labor

Sources: Number of miners based on U.S. Department of Labor, MSHA Internet, Coal Fatalities for 1900 through

2001, www.msha.gov/centurystats/coalstats.htm; coal production based on data from Energy Information

Administration, Coal Products Publications, Coal Data: A Reference, Table 18, U.S. Production Trends in

Bituminous Coal and Lignite, 1900–1993 (total production, thousand short tons), 1995, pp. 65–66,

http://tonto.eia.doe.gov/FTPROOT/coal/006493.pdf; Pennsylvania Department of Environmental Protection,

Mining and Reclamation, 2000 Annual Report on Mining Activities, Table 1, Anthracite Statistical Summaries

1870 to 2000 (production, net tons), www.dep.state.pa.us/dep/deputate/minres/bmr/annualreport/2000/

table_01.htm (1990 to 1993 anthracite production data); and Energy Information Administration, Coal Products

Publications, Coal Industry Annuals 1994–2000 (thousand short tons), http://tonto.eia.doe.gov/FTPROOT/

coal/coalpubs.htm (1994–2000 coal production data, including Pennsylvania anthracite operations but excluding

silt, culm, refuse bank, slurry dam, and dredge operations).

100,000

200,000

300,000

400,000

500,000

600,000

700,000

800,000

900,000

1,000,000

19001905 191019151920 1925 1930 19351940 194519501955 1960 1965 1970 1975 198019851990 19952000

200

400

600

800

1,000

1,200

Year

U.S. Coal Miners

U.S. Coal Production

enactment were unique to the Coal Act, includ-

ed the imposition of monetary penalties for all

violations of mandatory federal coal safety and

health standards as well as criminal penalties

for knowing and willful violations of the stan-

dards.

The use of “first-instance” sanctions

marked a significant departure from prior fed-

eral policies,

which left law enforcement to the

various states and, to a large extent, left mine

safety to the economic marketplace.

Unfortunately, passage in 1969 of the Coal

Act with its forced compliance approach did

not put an end to disasters in the coal mining

industry. As Congress noted in 1977:

At Buffalo Creek, in February, 1972,

125 persons died when a dam burst

sending a near tidal wave of murky

water through the seventeen mile long

valley, while the mining enforcement

agency questioned its authority to reg-

ulate the coal mine impoundment

dam in question.

At Blacksville, in July 1972, nine min-

ers at work behind a piece of equipment

that caught fire were trapped and died in

the mine because those at the scene of the

fire had not been adequately trained in

emergency procedures.

At Scotia, in March, 1976 twenty-

three miners and three Federal inspec-

tors died in two explosions of accumu-

lated methane gas when the mine safety

enforcement effort was unable to detect

and address chronic conditions of inade-

quate ventilation in that mine.

Near Tower City, Pennsylvania, in

February, 1977, nine miners died when

water from an underground source

inundated active workings, sending tons

of water and debris coursing through the

mine.

On the basis of those tragedies, the 1977

Congress concluded that “review of . . . six years

of enforcement of the Coal Act, requires the

Committee to report that fatalities and dis-

abling injuries in our nation’s mines are still

unacceptably and unconscionably high.”

Having reached that conclusion, the 1977

Congress did not deduce that forced compli-

ance might not meaningfully improve work-

place safety; rather it surmised that a more

stringent law with broader coverage was

required. The 1977 Congress reasoned that

mine operators [must] still find it

cheaper to pay minimal civil penalties

than to make the capital investments

necessary to adequately abate unsafe or

unhealthy conditions. . . .

Following that curious reasoning, the 1977

Congress resolved to “strengthen” the 1969

Coal Act.

The Special Interest

Influence

Before the Mine Act was passed in 1977, the

Coal Act provided protection to only the nation’s

coal miners. Congress had determined that “coal

miners deserve the safest, healthiest work envi-

ronment our technology will enable us to pro-

vide,” but it did not make a similar determina-

tion with respect to noncoal miners.

However, as is often the case when one

group gets special treatment from the govern-

ment,

other groups soon demanded similar

treatment.

True to that principle and seven

years after the enactment of the Coal Act, the

United Steelworkers of America complained

that “there is absolutely no reason why miners

in one segment of the mining industry should

be given different statutory rights than miners

in another segment of the industry.”

After all,

the May 1972 carbon monoxide asphyxiation

of 91 miners at Sunshine Silver Mine in Idaho

demonstrated, quite horrifically, that death in

the workplace was not unique to coal miners.

Actually, there were valid reasons to treat

underground coal miners differently than

other groups of miners. In 1977 underground

anthracite coal miners had significantly higher

injury incidence rates than did all other types of

miners.

Nevertheless, organized mine labor

was able to convince Congress that the

There were valid

reasons to treat

underground coal

miners differently

than other groups

of miners.

strengthened scheme of regulation, inspection,

and sanction should be extended to all min-

ers.

Some scholars opined that, to a large

extent, organized mine labor used the legisla-

tive process to achieve what it had been unin-

terested in achieving

at the bargaining table.

Thus, with passage of the Mine Act in 1977,

Congress provided special protections for “the

sacred lives of those members of our society

who toil in the mines to keep our country run-

ning efficiently.”

However, Congress afforded

less extensive protections under the

Occupational Safety and Health Act of 1970 for

other American workers who toiled in the fac-

tories, fields, and forests to keep our country

running efficiently, despite the fact that some

of those workers were exposed to greater work-

place hazards than even underground

anthracite coal miners.

The Neglected

Constitutional Constraints

To a certain extent, however, Congress was

powerless to protect the lives of all miners at the

behest of the labor organizations. The U.S.

Constitution expressly enumerates the powers

of the federal government. One cannot find

among those enumerated powers a power to

police the nation’s mines, or any workplace for

that matter. Though Congress’s intentions to

protect sacred human life were honorable, the

Tenth Amendment of the Constitution

reserves such police powers to the individual

states.

The Constitution, however, does grant

Congress the power “to regulate commerce.”

Thus, when Congress initially resolved to pro-

tect the lives of coal miners in 1969, it declared,

[T]he disruption of production and the

loss of income to operators and miners

as a result of coal mine accidents or occu-

pationally caused diseases unduly

impedes and burdens commerce.

The 1969 declaration was not without prece-

dent or context. In 1940 the federal govern-

ment actually seized the nation’s coal mines to

avert a labor dispute that might have disrupt-

ed the supply of coal during a period of

increasing hostility abroad.

In 1969, at the

dawn of the so-called energy crisis, America

was facing concerns about future energy sup-

plies.

Even in that historical and geopolitical

context, the specific nexus between interstate

commerce and particular coal mine disasters

was not entirely clear.

The nexus was even less clear in 1977

when Congress expanded the Coal Act to

cover noncoal mines.

The reality, in 1977

and even in 1969, was that Congress was

enacting social measures aimed at minimiz-

ing “the grief and suffering of miners and

their families” at the behest of labor organi-

zations and was not especially concerned

about commerce between the states.

The Forced Compliance

Approach

Echoing the concerns about resource alloca-

tion first raised in 1969, the “first priority” of

the Mine Act was to establish the miner as the

mining industry’s “most precious resource.”

The 1977 Congress, however, did not opt to

increase the value of the miner through eco-

nomic means, such as a tax on injuries.

Instead, the 1977 Congress, following the lead

of the 1969 Congress, attempted to protect

miners by granting them legal rights, specifical-

ly “the right to a safe workplace.”

To ensure that the right of miners to a safe

workplace was vigorously protected, the 1977

Congress moved MESA from the Department

of the Interior to the Department of Labor and

renamed it the Mine Safety and Health

Administration. Historically, the Department

of Labor, which housed the Occupational

Safety and Health Administration, had been

the governmental entity charged with protect-

ing federal rights granted to workers.

MSHA was charged with implementing a

tripartite forced compliance scheme, similar to

but more stringent than the scheme created by

the 1969 Coal Act. First, Congress directed

The U.S.

Constitution

expressly enu-

merates the pow-

ers of the federal

government. One

cannot find

among those enu-

merated powers a

power to police

the nation’s

mines, or any

workplace for

that matter.

MSHA to promulgate mandatory safety and

health standards for all of the nation’s mines.

Second, Congress required MSHA to enter all

surface mines at least twice a year and all under-

ground mines at least four times a year, without

warrant or notice, to assess compliance with the

federal standards.

Third, Congress directed

MSHA to penalize any and all instances of non-

compliance through the use of first-instance

civil fines and criminal sanctions, not only

against mine operators but also against direc-

tors, officers, and agents of mining corpora-

tions as individuals.

In passing the Mine Act, the 1977

Congress did not intend the forced compli-

ance approach to augment the market-based

approach that predated the 1969 Coal Act;

rather, Congress intended police interven-

tion to supplant the market for safety. The

1977 Congress believed that its attempt to

eliminate the hazards associated with mining

through forced compliance would be so suc-

cessful that it would actually reduce the labor

costs,

injury or downtime costs,

and

workers’ compensation costs

that had tra-

ditionally created incentives for mine opera-

tors to invest in safety. Simply put, Congress

fully expected forced compliance

[t]o provide more effective means and

measures for improving the working

conditions and practices in the

Nation’s coal and other mines in order

to prevent death and serious physical

harm, and in order to prevent occupa-

tional diseases from originating in

such mines.

The Mine Act was supposed to be “more effec-

tive” than not only the Coal Act but also the

market-oriented, informational approach to

mine safety that existed prior to 1969.

The Mine Act Touted as a

Model Law

In 2000, in MSHA’s annual budget request,

Davitt McAteer, former MSHA administrator,

told Congress that “the Federal Mine Safety

and Health Act has been an extraordinarily effec-

tive law.”

McAteer did not cite any studies

that established the effectiveness of the Mine

Act to support his sweeping conclusion.

fact, he offered only one statement that could

arguably be construed as support for his bold

claim of effectiveness:

I am proud to say that the last five years

have been the safest on record for the

U.S. mining industry. It entered the

20th century with the worst safety and

health industrial record in this country

or abroad—we enter this century with

the best mine safety and health record

among major producing countries in

the world, a proud accomplishment.

Presumably, because the U.S. mining industry

went from “worst” to “best” in the 20th centu-

ry, Congress was expected to infer that the

Mine Act had been “extraordinarily effective.”

The Labor Department has not always been so

bashful. In 1995, for example, Labor Secretary

Reich told Congress that “coal miners are five

times less likely to be killed on the job than

they were in 1969, and metal miners twice less

likely to die—largely because we had the Mine

Act and MSHA in place.”

In fact, Clinton administration Labor

Department officials were so enamored with

the Mine Act’s forced compliance approach

that they vigorously defended it against reform

in the mid-1990s. In 1995 Congress, lead by

Rep. Cass Ballenger, appeared to be ready to test

the waters with a modest reduction of MSHA’s

enforcement authority, justified on cost-cut-

ting grounds, as part of the Republican Party’s

Contract with America.

However, the Labor

Department vigorously defended the statute as

originally enacted in 1977. McAteer told

Congress:

The dramatic improvements in mine

safety and health are proof that the Mine

Act and MSHA are working. We do not

claim sole credit for the success of the last

twenty-five years. . . . There are many fac-

In passing the

Mine Act, the

1977 Congress

intended police

intervention to

supplant the mar-

ket for safety.

tors that help explain why things have

improved. It is clear, however, that without

federal intervention, conditions in the mines

would not have improved.

The Labor Department, which was support-

ed by organized labor

and even by some

large mine operators, successfully defeated

the reform initiative with the help of a veto

threat from President Clinton.

100

Oddly, the 1995 Congress, still in its cost-

cutting mode, subsequently decided to elimi-

nate the Bureau of Mines, which, unlike

MSHA, did not have police powers.

101

At the

time the bureau was eliminated, there were

legitimate questions about whether large min-

ing entities had sufficient incentive and capital-

ization by the end of the 20th century to con-

duct safety research and development on their

own and about whether such research is more

appropriately conducted at universities.

102

Nonetheless, the renewed commitment to

MSHA’s forced compliance approach at the

apparent expense of the Bureau of Mines’ infor-

mational approach, without closer examina-

tion of the actual effects of the different

approaches,

103

raises the question of whether

the priority of the Congress and President

Clinton was the safety of the nation’s miners or

the appeasement of their special interest con-

stituents.

104

In addition to successfully defeating reform

of the Mine Act, Clinton administration Labor

Department officials actually worked to

expand its reach. Then–secretary of labor Reich

told Congress, “All workers should enjoy the

gains in safety and health achieved for miners

by MSHA and the Mine Act.”

105

In this regard,

it is worth noting that for the last 25 years

MSHA has been expanding its jurisdiction to

workplaces that would not traditionally have

been considered mines.

106

MSHA has even pushed the forced com-

pliance approach beyond the boundaries of

the United States and its territories. On

January 10, 2001, President Clinton signed

the International Labor Organization’s

Convention 176, which is based on the prin-

ciples embodied in the Mine Act.

107

With the

signing, then–secretary of labor Alexis

Herman commented:

Ratification of Convention 176 signals

U.S. commitment to safety and health

protection for workers in one of the

world’s most dangerous occupations. . . .

I would like to commend the Mine Safety

and Health Administration’s former

assistant secretary, Davitt McAteer, the

United Mine Workers of America, and

the National Mining Association for

their work in negotiating Convention

176. . . . Convention 176 reflects that

experience and helps to strengthen labor

standards worldwide.

108

According to McAteer, who visited Ukraine on

MSHA business in 1999, Convention 176 “is

just one aspect of our growing involvement in

international activities.”

109

The Truth about the Mine Act

Before providing all workers in the United

States with Mine Act–type protections and

before pushing the legislative model abroad,

it is fair and necessary to ask whether the

Mine Act has provided a “more effective”

means of preventing death and serious injury

than did the federal policy of no police inter-

vention that preceded it. With all due respect

to McAteer, “the dramatic improvement in

mine safety” is not “proof that the Mine Act

and MSHA are working.” The declining

number of fatalities and the declining fatali-

ty rates provide little, if any, information

about whether MSHA has improved the safe-

ty of miners in the last 25 years.

110

In fact, it is disingenuous for MSHA to

claim success on the basis of the favorable

trends in mine safety

111

because, as Figure 1

clearly shows, the trends did not begin in

1977 with the enactment of the Mine Act or

even in 1969 with the enactment of the Coal

Act. The fact that mining fatalities, in

absolute numbers, or even on a rated basis,

have continued to decline after federal inter-

It is disingenuous

for MSHA to

claim success on

the basis of the

favorable trends

in mine safety

because the

trends did not

begin in 1977

with the enact-

ment of the Mine

Act or even in

1969 with the

enactment of the

Coal Act.

vention does not establish that forced com-

pliance contributed to the decline.

Even assuming that the trend toward

safer mines accelerated after 1969 or after

1977, there would still be questions about

causation because a correlation, by itself,

does not establish cause and effect. For exam-

ple, using the Labor Department’s simplistic

reasoning, it could be argued that MSHA’s

forced compliance model, which was expand-

ed in 1977, has been extraordinarily effective

at eliminating mining jobs in the United

States (Figure 3).

Although the creation of MSHA coincides

with the loss of 30 percent of all U.S. mining

jobs in the last 25 years, that correlation, by

itself, does not prove that the Mine Act elimi-

nated mining jobs. Thus, without the benefit

of a statistical analysis that establishes that the

trend toward safer mines accelerated after pas-

sage of the acts and without a tested theory of

causation, MSHA’s claims are pure puffery.

112

There is one 1980 study that at first glance

appears to support some of MSHA’s self-

aggrandizing conclusions.113 Professors

Michael Lewis-Beck and John Alford conclud-

ed, on the basis of a multiple interrupted time

series (MITS) statistical analysis, that “the

1941 and 1969 federal safety legislation

appears to have diminished significantly the

risk of receiving a fatal injury while mining

coal.”114 To a certain extent, the time series

data, which they developed, statistically quan-

tify the declines in fatalities per number of

coal miners after 1969 that can be observed

using MSHA’s data (Figures 4 and 5).

In addition to attributing statistical sig-

nificance to the downward slope in coal min-

ing fatality rates after 1969, the professors

further concluded that the observable

decline was attributable to “regulatory influ-

ences” and not changes in mine size, technol-

ogy, or the type of mining.

115

While the Lewis-Beck and Alford study is

certainly a step in the right direction in terms

of attempting to determine whether forced

compliance influenced the trend toward fewer

mine fatalities, it is by no means the end of the

story. In this respect, their ultimate conclu-

sion, that “it is possible for Congress to enact

Figure 3

The Loss of U.S. Mining Jobs after Enactment of the Mine Act

Sources: Author’s calculation (metal/nonmetal miners + coal miners) based on data from U.S. Department of

Labor, MSHA Internet, Metal/Nonmetal Fatalities 1900 [1931] through 2001, www.msha.gov/centurystats/mnm

stats.htm; and U.S. Department of Labor, MSHA Internet, Coal Fatalities for 1900 through 2001, www.msha.gov/

centurystats/coalstats.htm.

350,000

400,000

450,000

500,000

550,000

600,000

1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001

Year

Even assuming

that the trend

toward safer

mines accelerated

after 1969 or after

1977, there would

still be questions

about causation

because a correla-

tion, by itself,

does not establish

cause and effect.

Figure 4

U.S. Coal Mining Fatalities per 100,000 Miners

Source: Author’s calculation ([fatalities ÷ number of miners] × 100,000) based on data from U.S. Department of

Labor, MSHA Internet, Coal Fatalities for 1900 through 2001, www.msha.gov/centurystats/coalstats.htm (sand and

gravel workers included beginning in 1958, office workers in 1973).

Figure 5

U.S. Metal/Nonmetal Mining Fatalities per 100,000 Miners

Source: Author’s calculation ([fatalities ÷ number of miners] × 100,000) based on data from U.S. Department of

Labor, MSHA Internet, Metal/Nonmetal Fatalities 1900 [1911] through 2001, www.msha.gov/centurystats/mnm

stats.htm (sand and gravel workers included beginning in 1958, office workers in 1973).

100

200

300

400

500

600

1900

1905

1910

1915

1920

1925

1930

1935

1940

1945

1950

1955

1960

1965

1970

1975

1980

1985

1990

1995

2000

Year

100

120

140

160

180

200

1931

1935

1939

1943

1947

1951

1955

1959

1963

1967

1971

1975

1979

1983

1987

1991

1995

1999

Year

laws that successfully regulate American busi-

ness for some public purpose, such as safer

coal mines,”

116

sounds more political than

analytical or factual. Although their analysis

may be more glamorous than the numbers

that MSHA tosses around on Capitol Hill, it is

no more compelling for at least a half dozen

reasons.

First, as is the case in any time series analy-

sis, the study, by selecting independent vari-

ables, arbitrarily defines the data set. Lewis-

Beck and Alford selected 1941, 1952, and

1969 because federal legislation affecting

mine safety was enacted in those years. The

particular problem with that approach is

that Lewis-Beck and Alford neglected to

include the 1910 creation of the Bureau of

Mines. Their exclusion of the 1910 legisla-

tion is totally inconsistent with their inclu-

sion of the 1941 legislation, which allowed

the federal government to make recommen-

dations to mine operators, because it is iden-

tical in principle to the approach taken by the

federal government in 1910. By erroneously

treating the Mine Inspection Act of 1941 as

“the ‘first’ law” affecting the mining indus-

try,

117

the study ignores the important and

continuing contribution of the Bureau of

Mines that began in 1910, thereby exaggerat-

ing the purported observed effects of the

other laws.

Second, the more general problem with

preselecting variables is that it imposes pre-

conceived ideas on the data instead of allow-

ing the graphic representation of the data to

suggest areas of inquiry. At least with respect

to safety issues, the starting point should be

to identify statistically meaningful trends

and then to work backwards, hypothesizing

about the factors that may have contributed

to the trends. In that regard, eyeballing

Lewis-Beck and Alford’s man-hour data

points suggests that the steep downward

trend, which they attribute to the 1969 act,

actually began 10 years earlier in 1960, which

incidentally coincides with the introduction

of the roof-bolting machine to underground

coal mining.

118

Although the MITS approach

might be useful in supporting a preconceived

idea (to the extent that the data cooperate), it

is not especially appropriate in a field where

proper identification of causes and effects

can be a matter of life and death.

Third, the Lewis-Beck and Alford study

relies on a simplistic data set. While the use of

conglomerated data is certainly convenient

and possibly appropriate to show general

trends, it does not have as much explanatory

power as the unconglomerated data.

119

Inside

the Bureau of Mines’ data set are potential

subsets of data: surface versus underground,

bituminous versus anthracite, western versus

eastern, large mine versus small mine, state

versus state, and even union versus nonunion.

Each subset may tell a different story about

the effects of federal legislation. In addition,

because they looked at only the national

trends, Lewis-Beck and Alford made no

attempt to differentiate between mining disas-

ters and normal-course-of-work fatalities. A

large disaster, such as Farmington where 78

miners died in a single accident, can distort

short-term and long-term trends, such as the

downward trend in coal mine fatalities that

appears to have begun in the early 1960s.

Fourth, Lewis-Beck and Alford greatly exag-

gerate the utility of MITS analysis in making

cause and effect determinations. They conclude

that “beyond doubt, the harsher provisions of

the 1969 Act have made the coal mines safer.”

120

However, of the ”numerous” variables that

might affect mine safety, their study attempts

to account for only three, for which they “man-

aged to assemble satisfactory data.”

121

Lewis-

Beck and Alford considered only mine size,

mining technology, and type of mining. There

are numerous other possible macro explana-

tions that might account for the favorable

trends in coal mining fatalities, including, but

not limited to, the replacement of tort liability

with workers’ compensation, the subsequent

reform of workers’ compensation, the develop-

ment of third-party and product liability doc-

trines, the standard of living, the proliferation

of mass media communications, the mass con-

sumption of automobiles, the build-out of the

medical infrastructure, and even U.S. participa-

tion in foreign wars. They also did not evaluate

The steep down-

ward trend in

fatalities coin-

cides with the

introduction of

the roof-bolting

machine to

underground coal

mining.

numerous potential mining-specific explana-

tions for the favorable trends in fatalities,

including, but not limited to, the price of coal,

national demand for coal, the nature of the

mining labor force,

122

the consolidation of

mine operators, state mining laws, and geo-

graphic mining activity. As the study concedes,

those other unaccounted-for variables might

“contribute significantly to an explanation of

mine safety.”

123

Fifth, with regard to the variables that

Lewis-Beck and Alford attempted to take into

account (mine size, mining technology, and

type of mining), it is not altogether clear that

simply treating them as “third variables” ade-

quately captures the extent of their effect on

mine safety.

124

Moreover, the indicators that

they selected to represent those variables are

also questionable. For example, using produc-

tivity as the sole indicator of advances in min-

ing technology would not capture technologi-

cal innovations that substantially enhance

safety without significantly affecting produc-

tion, such as the proliferation of permissible

explosives, permissible equipment, rock-dust-

ing applicators, self-rescuers, rollover protec-

tion, fire alarm and suppression systems, ven-

tilation techniques, and roof bolting. In addi-

tion, to the extent that the federal legislation

may be responsible for declines in productivi-

ty, the full effect of non-safety-specific innova-

tions might actually be hidden by their “third

variable” approach.

There Is No Evidence That

the Mine Act Has Effectively

Reduced Fatalities

The sixth and most important reason that

the Lewis-Beck and Alford study does not

withstand scrutiny is that it relies on an infe-

rior measure of mine safety progress. A com-

parison of (1) annual fatalities per 100,000

miners, which is MSHA’s version of Lewis-

Beck and Alford’s annual fatalities per mil-

lion man-hours,

125

and (2) annual fatalities

per million tons mined shows discrepant

trends.

One interpretation of the discrepancy,

which appears in Figure 6, is that fatality rates

per miner and, by extension, rates per man-

hour,

126

do not accurately represent the favor-

able trend in mine safety improvement.

The fatalities per million tons rate, which

shows a near continuous downward trend, is a

superior measure of mine safety. Fatality rates

based on tonnage are superior to fatality rates

based on miners or man-hours because they

reflect changing exposure to mine hazards

more accurately. Although a man-hour rate

reflects exposure somewhat better than does

the number of employees, a man-hour rate

does not adequately capture a miner’s expo-

sure to hazards because it assumes that the

pace of mining per hour is constant over time.

The reality is that miners move more ground

in one hour today than they did in 1900.

127

is generally accepted that the more ground is

moved, the more hazards will be encoun-

tered.

128

For that reason, the fatalities per mil-

lion tons rate, which better captures the haz-

ards encountered during mining, is a better

means of assessing safety progress within the

coal mining industry.

129

Fatalities per million tons is a superior

measure of intraindustry safety progress from

a public policy perspective as well.

130

It direct-

ly correlates coal output, which public policy

aims to maximize, and fatalities, which public

policy aims to minimize. By directly compar-

ing the two most relevant variables, the possi-

bility of a false safety gain is eliminated. When

using fatalities per million man-hours,

changes in productivity can conceal changes

in safety. A decline in productivity, resulting

from more miners mining less coal, can make

the mines appear safer even when fatalities in

the more dangerous mining occupations do

not decline in absolute numbers. For example,

adding miners to do nonproduction work,

such as liaising with MSHA inspectors or fill-

ing out paperwork, away from the face of an

underground coal mine can lower fatality

rates per man-hour or per miner without low-

ering the fatality rate per ton.

131

In this connection, Labor Department

employee Hal Sider, in an unheralded but

A comparison of

annual fatalities

per 100,000 min-

ers and annual

fatalities per mil-

lion tons mined

shows discrepant

trends.

important statistical analysis,

132

found that the

“spectacular decline in productivity during the

1970s” was not the result of improvements in

safety conditions but rather the result of a sim-

ple decline in the production of marketable

output.

133

The converse and corollary implica-

tion of Sider’s analysis is that the productivity

declines that followed the 1969 Coal Act

134

may

also explain the improvement in the fatality per

man-hour rate observed by Lewis-Beck and

Alford.

135

In other words, the improvement in

fatalities per million man-hour data that fol-

lowed the 1969 Coal Act might actually reflect

a decrease in exposure to hazards resulting

from each employee mining less coal and not

from a genuine improvement in mine safety.

The clear implication of Sider’s analysis is that

the beneficial safety effects of the Coal Act

observed by Lewis-Beck and Alford are illusory.

In sum, while the man-hour and employee

rates may be useful for comparing mining

with other industries and for informing min-

ers about the relative risks that they face com-

pared with workers in other industries, the per

ton rate is superior as an intraindustry mea-

sure of safety progress. For example, the per

million ton measure is used to compare the

safety of mines in different countries whose

productivity rates may vary considerably.

136

Although MSHA does not use the measure on

a regular basis, the agency has used it when it

helps make a point.

137

Figure 7 isolates and

enlarges the fatalities per million tons trend

set out above in Figure 6.

The implications of Figure 7 are profound.

It appears that the federal government inter-

vened at a point when safety gains on a per mil-

lion ton basis were already declining at a rapid

rate. Moreover, unfavorable changes in the

trend that coincide with federal intervention

raise serious questions about whether forced

compliance may actually have even been detri-

The improvement

in fatalities per

million man-hour

data that followed

the 1969 Coal Act

might actually

reflect a decrease

in exposure to

hazards resulting

from each

employee mining

less coal and not

from a genuine

improvement in

mine safety.

Figure 6

Divergent U.S. Coal Mining Fatality Rates

1900

1910

1920

1930

1940

1950

1960

1970

1980

1990

2000

100

200

300

400

500

600

Per Ton

Per Miner

Sources: Fatalities per ton, author’s calculation (fatalities ÷ tons ×

1000) based on data from U.S. Department of

Labor, MSHA Internet, Coal Fatalities for 1900 through 2001 www.msha.gov/centurystats/coalstats.htm; Energy

Information Administration, Coal Products Publications, Coal Data: A Reference, Table 18, U.S. Production Trends

in Bituminous Coal and Lignite, 1900–1993 (total production, thousand short tons), 1995, pp. 65–66,

http://tonto.eia.doe.gov/FTPROOT/coal/006493.pdf; Pennsylvania Department of Environmental Protection,

Mining and Reclamation, 2000 Annual Report on Mining Activities, Table 1: Anthracite Statistical Summaries

1870 to 2000 (production, net tons, converted to thousand tons), www.dep.state.pa.us/dep/deputate/minres/bmr/

annualreport/2000/table_01.htm; and Energy Information Administration, Coal Products Publications, Coal

Industry Annuals 1994–2000 (thousand short tons), http://tonto.eia.doe.gov/FTPROOT/coal/coalpubs.htm.

Fatalities per miner, author’s calculation ([fatalities ÷ number of miners] ×

100,000) based on data from U.S.

Department of Labor, MSHA Internet, Coal Fatalities for 1900 through 2001, www.msha.gov/centurystats/coal

stats.htm

Year

mental to mine safety.

138

An MITS analysis of

the data, akin to Lewis-Beck and Alford’s study,

would almost certainly show that each succes-

sive stage of increasing federal intervention,

especially after 1941, progressively slowed the

trend toward safer coal mines. Thus, it is entire-

ly possible that the federal government not only

got to the safety-improvement celebration late

but may also have broken up the party.

The Reasons Forced

Compliance Does Not

Protect Miners

Alleging that federal intervention has been

detrimental to mine safety is considered

heresy even by critics of the forced compliance

model, who at least pay homage to the historic

role that forced compliance has played in

bringing mine safety to where it is today.

139

addition, attempting to establish that the

Mine Act has stalled the trend toward fewer

mine fatalities presents the same statistical

and causation hurdles that proponents of the

enforcement model have conveniently ignored

in touting the lifesaving benefits of the Mine

Act. Nonetheless, a comparison of the forced

compliance and market models suggests that

it is entirely possible that Congress may have

actually done more harm than good with the

Coal and Mine Acts. Each of the three compo-

nent parts of the forced compliance approach

is inferior to the equivalent feature of the mar-

ket-based approach that it tried to replace and,

more important, may impair the effectiveness

of the market-based counterparts.

The Substitution of Rules for Results

In the market-based approach to mine

safety there are no restrictions on the means

by which mine operators achieve reductions in

It is entirely pos-

sible that the fed-

eral government

not only got to

the safety-

improvement

celebration late

but may also have

broken up the

party.

1900

1905

1910

1915

1920

1925

1930

1935

1940

1945

1950

1955

1960

1965

1970

1975

1980

1985

1990

1995

2000

Figure 7

Behind the Curve: Increased Intervention by the U.S. Government in Mine Safety

May Have Decreased the Rate of Decline in Coal Fatality Rates

Sources: Author’s calculation (fatalities ÷ tons × 1000) based on data from U.S. Department of Labor, MSHA

Internet, Coal Fatalities for 1900 through 2001, www.msha.gov/centurystats/coalstats.htm; Energy Information

Administration, Coal Products Publications, Coal Data: A Reference, Table 18, U.S. Production Trends in

Bituminous Coal and Lignite, 1900–1993 (total production, thousand short tons), 1995, pp. 65–66, http://tonto.

eia.doe.gov/FTPROOT/coal/006493.pdf; Pennsylvania Department of Environmental Protection, Mining and

Reclamation, 2000 Annual Report on Mining Activities, Table 1: Anthracite Statistical Summaries 1870 to 2000

(production, net tons, converted to thousand tons), www.dep.state.pa.us/dep/deputate/minres/bmr/annual

report/2000/table_01.htm; and Energy Information Administration, Coal Products Publications, Coal Industry

Annuals 1994–2000 (thousand short tons), http://tonto.eia.doe.gov/FTPROOT/coal/coalpubs.htm.

Fatalities per Million Tons of Coal

Year

1910: BOM Disseminates Information

1941: BOM Makes Recommendations

1952: BOM Issues Second Instance Violations

1969: BOM/MESA Issues First Instance Violations

1977: MSHA Issues First Instance Violations with Stiffer Penalties

injuries. Mine operators are free to use

employee bonuses, engineering controls,

behavior-based programs, or whatever else

works to bring down injury rates. In contrast,

the forced compliance model depends entirely

on the administration and enforcement of

regulations to reduce accidents. There are

numerous shortcomings inherent in the regu-

latory approach.

First, it has never been established that

regulation of mining operations prevents

accidents. Conventional wisdom holds:

The risks regulated by these two agen-

cies are well understood. We know we

need regulations on ladders, slippery

floors, lighting, and similar matters in

order to protect workers. We know from

experience that these agencies’ regula-

tions prevent deaths. We do not want to

meddle with success.

140

However, even scholarly proponents of forced

compliance have conceded the possibility that

safety regulations might not have any positive

impact on accident rates.

141

As set out above, a

preliminary look at the fatalities per million

tons data suggests that forced compliance

might have actually slowed the trend toward

fewer fatal injuries at coal mines.

142

Regardless of whether any accidents can be

prevented with regulations, it is clear that all

accidents cannot be eliminated through regula-

tion. One occupational safety and health schol-

ar has noted that even in less dynamic OSHA-

regulated environments, “most workplace

injuries are not caused by violations of stan-

dards, and even fewer are caused by violations

that inspectors can detect.”

143

There have been

fatalities at mining operations where even

MSHA, which strives to cite a violation in every

fatality case,

144

has conceded that there was no

violation of the regulations.

145

It is simply

impossible to address all conceivable hazardous

conditions and practices through regulation.

In response to the fact that it is impossible

to regulate every conceivable hazard at min-

ing operations, many of MSHA’s regulations

are deliberately vague with respect to the spe-

cific conditions or practices that are required

or prohibited. For example, many of the

metal/nonmetal regulations simply instruct

mine operators to be “safe” and to avoid

practices or conditions that may create a

“hazard” or be “dangerous.”

146

Although it

has been held by the courts that such “per-

formance” regulations meet the minimum

requirements of due process

147

and although

such “performance” regulations do afford

the mine operator flexibility in achieving

compliance,

148

the reality is that such regula-

tions provide no meaningful guidance to

mine operators about what conditions may

be hazardous or how to eliminate them.

While such regulations are ideal for 20/20

hindsight enforcement, they are worthless as

guidelines for the prevention of accidents.

149

The regulations that are specific enough to

provide guidance to mine operators are often

too prescriptive. Many MSHA regulations,

particularly ones governing coal mining, are

so specific that they discourage innovation.

150

Mine operators are generally reluctant to

implement high- or even low-tech safety inno-

vations because doing so, in many instances,

requires the mine operator to petition MSHA

for a variance.

151

Under MSHA’s regulations,

such variances, even if granted on the first go

around, take a minimum of 60 days.

152

It often

takes many months or sometimes even years

to get a variance.

153

In some instances, where

the mine operator cannot convincingly per-

suade an Arlington, Virginia, bureaucrat that

its innovative approach will not diminish safe-

ty in any way, variances are not granted at

all.

154

The limitations of such a system in an

industry in which conditions change hourly

are obvious. Indeed, all but the most ardent

advocates of regulation have conceded that

regulations do not induce innovation.

155

Perhaps the biggest failing of MSHA’s regu-

lations is their relentless focus on the “unsafe

condition and unsafe act” approach to mine

safety to the detriment of other more innova-

tive approaches. Almost all of MSHA’s regula-

tions address workplace conditions. While

there are a few regulations that prohibit unsafe

actions, they have not been particularly effective

It has never been

established that

regulation of

mining opera-

tions prevents

accidents.

at changing behavior.

156

In this connection,

modern accident prevention theory, which

focuses on behavior-based approaches to

improving safety, has passed by MSHA’s regu-

latory approach, which remains firmly rooted

in the “unsafe-act/unsafe-condition” theory

developed in the first third of the 20th centu-

ry.

157

Although MSHA regulations do not pre-

clude mine operators from implementing

behavior-based safety programs, the perception

in the industry is that MSHA, whose focus is on

assigning blame to the mine operator and pro-

tecting employee rights, is not receptive to

behavior-based approaches.

158

Moreover, small-

er mining operations, which often do not have

the resources to implement two types of safety

programs, are forced to focus their available

resources on a safety program that is geared

toward regulatory compliance.

159

The Substitution of Inspector Vigilance

for Employee Vigilance

The keystone of the market-based approach

to mine safety is the strong incentive that an

individual miner has to provide for his own

safety and well-being. In contrast, the regulato-

ry approach to safety embodied in the Mine

Act, which essentially creates a miner’s entitle-

ment to a safe workplace, largely exempts min-

ers from responsibility for their own and others’

safety. Instead, the Mine Act approach relies pri-

marily on periodic, mandatory inspections con-

ducted by federal mine inspectors to enforce

compliance with the regulations. The forced

compliance approach is inferior to the market

approach, not only because inspectors are inca-

pable of doing a better job than miners at

ensuring a safe workplace, but also because

forced compliance creates a moral hazard for

the miners.

Although the 1977 Congress recognized

that the individual miner had an essential role

even in the forced compliance approach to

mine safety,

160

the Mine Act placed the entire

responsibility for safety on the mine operator.

The 1977 Congress explained:

Thus, while miners are required to com-

ply with standards insofar as they are

applicable to their own actions and con-

duct, except with respect to the penalty

for smoking in a mine, (Section 111(i)),

neither the bill, nor current law contem-

plates that citations and penalties be

issued against miners. Operators have

the final responsibilities for affording

safe and healthful workplaces for miners,

and therefore, have the responsibility for

developing and enforcing through

appropriate disciplinary measures, effec-

tive safety programs that could prevent

employees from engaging in unsafe and

unhealthful activity.

161

Thus, even though the Mine Act pays lip service

to the important role of miners,

162

the act

exempts the individual miner from any civil or

criminal liability, with the one exception related

to smoking, regardless of whether he puts him-

self, others, or the mine operator’s equipment

at risk. With respect to smoking, the average

civil penalty issued to miners when they are

caught by MSHA is only $181.

163

As a proxy for the vigilance of miners,

164

the

Mine Act relies on regular federal inspections to

ensure that mine operators are in compliance

with the federal safety regulations. Under the

Mine Act, MSHA is required to inspect surface

operations twice a year and underground oper-

ations four times a year.

165

Former MSHA

administrator McAteer has emphasized the

importance of federal inspections under the

Mine Act:

I wish I could say that it is now safe to

relax our vigilance on miners’ safety and

health, but that simply is not the case.

Even with strong enforcement, criminal

violations of federal mine safety stan-

dards have led to mine disasters such as

the Southmountain mine explosion that

killed eight Virginia coal miners less than

three years ago. Less vigilance through

inspections invites a greater danger of

mining accidents.

166

In the endless pursuit of ever-greater vigi-

lance, it is not uncommon for federal mine

The regulatory

approach to safe-

ty embodied in

the Mine Act,

which essentially

creates a miner’s

entitlement to a

safe workplace,

largely exempts

miners from

responsibility for

their own and

others’ safety.

inspectors to spend weeks or even months at

particular mining operations.

167

The fundamental problem with inspector

vigilance is that there can never be enough of

it. As McAteer explained:

Mines are complex. By definition, the

working environment changes all the

time. As mined material is removed, an

entirely new workplace is created in as

little as 24 hours. Roof conditions vary

from place to place. Explosive methane

may be liberated. Mechanical systems

may fail. A mine that is safe one day

may be dangerous the next. A mine

with a good safety record may confront

new challenges daily. Personnel

changes, too, can make a dramatic dif-

ference in the safety of a mine.

168

Extending McAteer’s reasoning to its logical

conclusion, every work crew at every mine on

every shift would have to include one full-

time federal mine inspector in order for the

inspections to have a realistic chance of effec-

tively ensuring compliance with federal regu-

lations at all times.

In addition to not having a realistic oppor-

tunity to be vigilant,

169

federal inspectors do not

have the same incentives as employees to ensure

that the workplace is safe.

170

An employee who

fails to discover a hazard may lose his life or

limb or the life or limb of a friend, whereas an

inspector who fails to discover a hazard may

not even get a reprimand.

171

Moreover, while

most MSHA inspectors have good intentions,

there are some who have been corrupted by

bureaucratic apathy, political pressure, career

advancement goals, a desire for job security,

abuse of power, or personal animosity.

172

Compounding the problem of incentives is

the problem of competence. Frequently, MSHA

inspectors are not qualified to perform the

inspections to which they are assigned.

173

Even

where the MSHA inspector may have general

information about safe work practices and con-

ditions as contained in the regulations, he usu-

ally lacks specific information about the mine

and its miners. Essentially, an MSHA inspector

makes his compliance determinations in an

information vacuum. For example, the MSHA

inspector may not know (or may not care to

know) that safety resources have not been com-

mitted to a particular area of the mine because

it does not present any safety risks.

174

Perhaps the greatest problem with federal

inspections is not that they can never augment

employee vigilance but rather that, to some

extent, they have become a substitute for

employee vigilance. As is often the case with

entitlement schemes, the Mine Act has created

a moral hazard, whereby miners have reduced

incentives to provide for their own safety as well

as the safety of others. Although it is difficult to

measure the impact of the moral hazard on the

behavior of miners, there are plenty of anecdo-

tal accounts of employees who have not taken

responsibility for their own personal safety.

175

For example, miners have stated:

[Without MSHA] no one will be there

to make sure I bother putting on a

hard hat or my hardsole boots, and,

who needs to carry that old self rescuer

anyway?

176

And

I have worked where the continuous

miner operator cut coal without venti-

lation curtains and in high concentra-

tions of methane and even cutting

cross sections together in unsupported

roof and cutting deep cuts out from

unsupported roof. All of this in viola-

tion of the approved mining plan.

177

Moreover, the fact that numerous lawsuits

have been brought against MSHA alleging

negligent inspection indicates that there is at

least a general perception in mining commu-

nities that MSHA serves as the ultimate guar-

antor of the safety of miners working in the

nation’s mines.

178

In this connection, the irony of McAteer’s

testimony to Congress regarding South-moun-

tain is that the disaster was attributable not to a

failure of federal vigilance but rather to lack of

The fundamental

problem with

inspector vigi-

lance is that there

can never be

enough of it.

miner vigilance. In all likelihood, the

Southmountain explosion was ignited by one

or more individual miners who decided to

smoke cigarettes in a mine that was known to

contain high concentrations of methane.

179

The Substitution of Sanctions for

Cooperation

An essential element of the market-based

approach to mine safety is adequate informa-

tion. Miners need information in order to

demand adequate risk premiums, and mine

operators need information in order to be inno-

vative accident preventers. In contrast, the

forced compliance approach relies on sanctions

to coerce compliance with regulations. While

the threat of sanctions that comes with the

Mine Act has probably been insignificant in

reducing accidents, it has been instrumental in

cutting off the information exchange between

mine operators and government.

Although the 1977 Congress attempted to

supplant the market for safety with police inter-

vention, it was not successful. The fallacy of

that approach lies in the numbers. Under the

Mine Act, the maximum civil penalty is $55,000

per violation. However, the act requires that

MSHA consider negligence, gravity, abatement

efforts, history of violations, size of the mine

operator, and ability to pay in assessing civil

penalties.

180

As a result, the average regular civil

penalty assessment in fiscal year 2000 was

$255.

181

A substantial number of assessments

were issued at the mandatory minimum civil

penalty of $55.

182

Regardless of whether or not such nominal

penalties create incentives for regulatory com-

pliance,

183

they are insignificant when com-

pared with the other monetary incentives that

are in place to encourage operators to invest in

accident prevention. In 2000 MSHA collected

just over $17 million in civil penalties from the

mining industry.

184

In contrast, the mining

industry probably paid hundreds of millions,

perhaps even billions, in risk premiums, in

injury costs, and for workers’ compensation

and insurance premiums.

185

Although plenty

of sanction-motivated, compliance-related

activity certainly occurs in the mining indus-

try,

186

the threat of sanctions is not by any mea-

sure the primary incentive that drives mine

operators to prevent accidents.

187

Of course, not all penalties assessed by

MSHA are $255 or less. In cases involving

injuries to employees, MSHA often issues sub-

stantial penalty assessments.

188

The average

civil penalty assessment in accident-related

cases was $31,000 in FY 2000.

189

To the extent

that such penalties add to the cost of injuries,

they may augment the preexisting market-

based monetary incentives for mine operators

to prevent future injuries. In this connection,

injury-related assessments function much like

an injury tax.

190

However, unlike an injury tax,

which is applied across the board, an injury-

related civil penalty assessment is unpre-

dictable.

191

It depends on whether MSHA’s acci-

dent investigation team can identify a legally

valid causal link to a regulation.

192

It also

depends on the secretive workings of the assess-

ment office

193

as well as the views of the Federal

Mine Safety and Health Review Commission

and the courts.

194

Because the penalty assess-

ment cost cannot be estimated in advance and

factored into decisions about investments in

accident prevention programs, its effectiveness

as an incentive is probably minimal.

Although the Mine Act’s civil penalty

scheme probably does not create significant

incentives for accident prevention, it does

create a substantial disincentive to coopera-

tion with the federal government. MSHA has

made it all too clear that it is not a public ser-

vice agency as was the Bureau of Mines. As

former administrator McAteer explained:

We have two responsibilities that are

sometimes at odds. First just like the

state police, we must enforce the law

and we mean to do that. Second, when

we identify a problem we will use what-

ever means available, such as public ser-

vice announcements, to get the message

out. But we are not a public service or

advisory agency. We have to carry out

our enforcement responsibility.

195

While the threat

of sanctions has

probably been

insignificant in

reducing acci-

dents, it has been

instrumental in

cutting off the

information

exchange between

mine operators

and government.

In a demonstration of the agency’s commit-

ment to enforcement at the expense of assis-

tance through information, McAteer elimi-

nated MSHA’s technical support group in the

western United States, where mining is on the

rise, and transferred its remaining functions

to his home state of West Virginia, where min-

ing is on the decline.

196

Although the credibil-

ity and utility of the technical support branch

under the direction of an enforcement agency

has always been suspect,

197

the move was

nonetheless symbolic of MSHA’s steadfast

commitment to the enforcement approach.

McAteer emphasized enforcement during

his tenure, but he candidly conceded that the

Mine Act’s enforcement approach was not “the

way to win friends and influence people.”

198

Because the Mine Act imposes civil and crimi-

nal penalties for noncompliance, mine opera-

tors and their agents treat MSHA inspectors as

policemen and MSHA technical support per-

sonnel as potentially hostile expert witnesses

instead of safety professionals.

199

As a result,

MSHA’s relationship with the mining industry

has almost always been adversarial and con-

frontational.

200

Hence, mine operators fre-

quently joke that the two biggest lies in the

mining industry are told by the MSHA inspec-

tor who says “I am here to help” and the mine

operator who replies “we’re glad you’re here.”

Although the impact of the government’s

adversarial relationship with the mining

industry on mine safety has not been studied,

it is likely that the dearth of meaningful

information exchange has been damaging in

comparison with the apparent success of the

cooperative approach demonstrated by the

Bureau of Mines in the early part of the 20th

century.

201

In all but exceptional cases, coop-

eration and information sharing are superior

to punishment and adversarial relations.

202

The Possibility of

Diminishing Returns

Although it is fair to say that MSHA will

never concede that the Mine Act and its prede-

cessors may have slowed the trend toward fewer

mine fatalities, MSHA has at least recognized

that the trend has slowed. McAteer noted:

We [have] taken fatalities and accidents

from a very high number down to a lower

number, but now we need to take it to the

next level. And why can’t we do that? . . .

Why can’t we find the solution?

203

Assistant Secretary of Labor Dave Lauriski, now

head of MSHA, similarly commented that

there had been “a flattening of those numbers—

over the past five years in particular.”

204

It is possible that the reason the mining

industry cannot bring mine fatalities to the

“next level” is that the Mine Act is interfering

with safety progress. Forced compliance may

well be part of the problem, not part of the

solution.

It is alternatively possible that the trend

toward fewer fatalities has reached the point

of diminishing returns. In absolute numbers,

mine fatalities dropped from 1,688 in 1931

to 72 in 2001, a 96 percent reduction.

205

may be that the mining industry has already

eliminated the easy-to-prevent fatalities and

that the final 4 percent present a more diffi-

cult challenge. Perhaps, with current mining

technologies and methods, a certain number

of fatalities cannot be eliminated at all.

206

Regardless of the explanation for the flat-

tening, the fact of the matter is that there is

no evidence that forced compliance has been

more effective than nonintervention. On a

fatalities per million ton basis, coal mine

fatalities appear to have declined faster

before forced compliance than they did after.

Because in all likelihood the Mine Act has

not met its stated statutory objective, its

forced compliance provisions should be

reviewed and possibly repealed.

The Cost/Benefit of Forced

Compliance

Even assuming that all mining deaths are

ultimately preventable and further assum-

ing, purely for the sake of argument, that

There is no evi-

dence that forced

compliance has

been more

effective than

nonintervention.

forced compliance contributes to prevention,

the forced compliance provisions of the Mine

Act still should be repealed. If one assumes

that the Mine Act saves a substantial number

of lives each year (which, given the foregoing,

is a rather dubious assumption), the estimat-

ed costs of forced compliance still exceed its

benefits by more than a factor of four. From

a cost/benefit perspective, the Mine Act is

simply not a wise use of the resources that

society chooses to commit to lifesaving.

The Costs of Forced Compliance

The most obvious cost associated with

forced compliance is the annual cost of admin-

istering the Mine Act. In FY02 Congress appro-

priated $246 million to MSHA.

207

To a certain

extent, the forced compliance budget should be

offset by civil penalty collections by MSHA,

which totaled about $17 million in FY 2000. In

addition, $27 million was appropriated for the

technical support branch, which is involved in

some nonenforcement activity.

208

However, the

budgeted amount does not include amounts

appropriated to the Department of Labor for

attorneys in the Solicitor’s Office who litigate

Mine Act cases or investigators in the Inspector

General’s Office who investigate inspector cor-

ruption. The budgeted amount also does not

include approximately $4 million appropriated

to the Federal Mine Safety and Health Review

Commission, which adjudicates disputes

between mine operators and MSHA.

209

To put

the costs of administering the Mine Act in per-

spective, the federal government spends

approximately $12,300 per inspection

210

and

$1,863 per assessed violation,

211

or $702 per

miner.

212

The $246 million that the federal govern-

ment spends on forced compliance pales in

comparison with the amount spent by the

mining industry to comply with MHSA’s reg-

ulations.

213

For example, operators have to

commit resources to installing guards, buy-

ing ladders, building berms, installing roof

bolts, and keeping fans running. Because

mine operators have significant incentives,

other than the threat of sanction, to prevent

accidents, there is no doubt that significant

resources would be committed irrespective of

compliance obligations. However, as the

National Mining Association has empha-

sized:

Many of the current requirements of

the Mine Act contain extraordinary

obligations on the mining industry

without contributing to a reduction in

occupational injuries and illnesses. The

regulations divert finite resources from

effective accident prevention and have

diminished the well-founded principles

of the Mine Act.

214

In addition to diverting resources from other

safety-related activities, compliance with reg-

ulations that do not contribute to a reduc-

tion in injuries also diverts finite resources

from production.

The inspection phase of MSHA’s forced

compliance program also has costs. Every

time a MSHA inspector enters a mine, he ties

up company personnel who have other safety

and production responsibilities. For exam-

ple, MSHA’s walkaround inspections pull

supervisors away from their work areas and

safety personnel away from training and

workplace examination duties.

215

More important, as a result of an inspec-

tion, mine operators are often required to

direct immediate resources to items and

tasks that they do not perceive as genuine or

high-priority safety hazards or even as com-

pliance obligations. For example, in one

reported case, an MSHA inspector required a

mine operator to replace a General Electric

toaster oven and a Proctor Silex toaster that

were located in the mine office because he

believed that the toasters, which were in their

store-bought, U.L.-certified condition, were

not properly grounded in accordance with

federal regulations.

216

In addition to inspection-related costs,

there are substantial costs associated with

the imposition of sanctions. For a variety of

reasons, disputes frequently arise between

MSHA and mine operators about the appro-

priateness of enforcement. For example, the

If one assumes

that the Mine Act

saves a substan-

tial number of

lives each year,

the estimated

costs of forced

compliance still

exceed its bene-

fits by more than

a factor of four.

Federal Mine Safety and Health Review

Commission received 2,335 cases in FY99.

217

One mine operator stated that its legal costs

approached $1 million in one such proceed-

ing.

218

Those costs incurred by mine opera-

tors are in addition to the substantial litiga-

tion costs incurred by MSHA, to which the

agency gives little or no regard.

219

It is obvi-

ous that the human and financial resources

committed to those disputes, which appear

to be a necessary evil of forced compliance,

are resources that will never be committed to

safety or to increased production.

220

Remarkably, there are no detailed esti-

mates of the total costs associated with the

forced compliance approach to mine safety

that is required by the Mine Act. Only since

1993 has MSHA attempted to quantify the

estimated costs of forced compliance with

particular regulations.

221

The only available

cumulative estimate of the cost of MSHA’s

forced compliance approach is a $7.4 billion

per year figure put forth by Professor Joseph

M. Johnson of George Mason University’s

Mercatus Center.

222

To arrive at the $7.4 bil-

lion figure, Johnson updated an earlier analy-

sis by E. F. Denison, which measured the

postregulatory productivity changes that

resulted from mine safety and health regula-

tion. Although Johnson found that “the cur-

rent total costs are likely greater than $7.4 bil-

lion,” he determined that “Denison’s esti-

mate is the best available.”

223

The Benefits of Forced Compliance

The initial problem with estimating the ben-

efits of forced compliance is that there may not

be any. It has never been established that forced

compliance has saved one life or prevented one

injury. Although there may be some anecdotal

accounts from the last 25 years of instances in

which MSHA’s actions have been beneficial, the

unfavorable change in the fatalities per million

tons trend that coincides with federal interven-

tion suggests that, at least with respect to coal

mine fatalities, the overall impact of forced

compliance may have been detrimental.

Another problem with estimating the

benefits of forced compliance, assuming that

there are some, is that the lives-saved

approach emphasized by MSHA may not be

a good measure of the overall safety of the

workplace. First, fatal injuries are to a large

extent an aberration and only a small per-

centage of the total number of mining

injuries. For example, in 2000 there were

11,193 nonfatal mining injuries that resulted

in lost workdays.

224

Second, fatal injuries can

decline irrespective of improved accident pre-

vention as advances in medical response and

medical care make it less likely that a partic-

ular injury will result in death.

Even if MSHA’s lives-saved approach is a

fair proxy for the overall safety benefit that

the Mine Act purportedly bestows on the

nation’s mines, it is, nonetheless, very diffi-

cult to place a monetary value on a human

life.

225

MSHA, which often uses the sanctity

of human life as a shield from accountability,

publishes no estimates of the monetary value

of a human life.

226

While it is certainly true

that human life is sacred, it does not follow

that it is unreasonable to assign a monetary

value to it for purposes of allocating scarce

public resources. Estimates of the value of a

human life range from as low as $100,000 to

as much as $6.8 million.

227

Using $6.8 million as an undiscounted

fair valuation of a human life, it is possible to

produce a ballpark estimate of the best-case

monetary benefit that the Mine Act’s forced

compliance program bestows upon society.

Assuming, purely for the sake of argument,

that as a result of forced compliance “coal

miners are five times less likely to be killed on

the job than they were in 1969, and metal

miners twice less likely to die [than in 1977],”

as former labor secretary Reich contends,

MSHA saved approximately 237 lives in

2000. If MSHA is generously credited with

saving all 237 lives and the value of each life

is $6.8 million, then the best-case monetary

benefit of the Mine Act in 2000 was

$1,611,600,000 or about $1.6 billion.

The Net Loss to American Society

On the basis of the very generous benefit

assumptions and conservative cost estimates

The problem with

estimating the

benefits of forced

compliance is that

there may not be

any. It has never

been established

that forced com-

pliance has saved

one life or pre-

vented one injury.

described above, it appears that the annual

costs of forced compliance exceed its annual

benefits by more than a factor of four. Of

course, these estimates are crude. Notably,

the cost estimate (presumably) includes the

cost of health regulations, whereas the bene-

fit estimate includes only lives saved through

accident prevention. Nonetheless, the esti-

mates help conceptualize the potential size

of the net loss to society over the 25 years that

the Mine Act has been enforced. The cumu-

lative loss to society could be on the order of

$145 billion.

Some proponents of safety regulation

argue that such cost/benefit analyses are

inappropriate. For example, law professors

Thomas McGarity and Sidney Shapiro, who

are vigorous advocates of the forced compli-

ance approach, maintain:

Public policy making provides us with

an opportunity to express our empathy

with those who are less fortunate. It is

an opportunity for those of us with

sufficient wealth to purchase our way

out of the danger of occupational dis-

ease to choose to protect those who do

not have that option. When we reject

cost-benefit analysis as a guide to pub-

lic policy, we not only better protect

workers, we ennoble ourselves.

228

The problem with the so-called noble or

compassionate approach to social policy,

which dominates present thinking about the

Mine Act,

229

is that society’s resources are not

infinite.

While even McGarity and Shapiro

“acknowledge that trade-offs must inevitably

take place,” they propose “an alternative way of

managing such trade-offs.”

230

They contend:

Under the cost-benefit approach, sig-

nificant financial burdens fall on indi-

vidual undercompensated workers and

their families. By comparison, the

additional costs imposed by a technol-

ogy-based standard [i.e. forced compli-

ance] are passed onto consumers or

absorbed by stockholders. The individ-

ual impact on any one consumer or

stockholder is insignificant compared

with the burden on uncompensated

workers and their families.

231

In other words, McGarity and Shapiro

attempt to use the “distributional conse-

quences of regulatory policy” to avoid the real-

ity that society’s resources are finite.

232

Apart from the problem of unexpected dis-

tributions, discussed below, the fundamental

fallacy of the professors’ approach is that it

fails to recognize that “the real cost of any-

thing is still its value in alternative uses.”

233

The tradeoff that arises from committing soci-

ety’s resources to a forced compliance

approach to mine safety is not between the

families of deceased miners and consumers or

stockholders. The tradeoff created by forced

compliance is between the families of miners

and the families of other workers, such as tim-

ber cutters, fishers, and pilots, who face even

greater chances that their loved ones will not

return home at the end of the workday, as well

as the families of truck drivers, who bear the

brunt of occupational deaths in terms of

absolute numbers.

234

Ultimately, the tradeoff that arises from

committing resources to forced compliance is

not even among different groups of workers.

The families of miners and other workers who

are exposed to accidental death on the job

must also compete for societal resources

against the families of children who are

exposed to accidental death at home. In 1998,

for example, 5,848 children died from unin-

tentional injuries.

235

The tough question is

whether the $246 million spent by taxpayers

and the $7.4 billion spent by consumers

should be committed to the prevention of the

deaths of adult miners at the workplace or the

deaths of children at home.

The question is, of course, rhetorical.

There are innumerable noble causes that are

worthy of society’s compassion. Therefore,

society needs to select its beneficiaries know-

ingly and avoid using up any resources that

could be put to alternative, possibly nobler,

Over the 25 years

that the Mine Act

has been

enforced, the

cumulative loss to

society could be

on the order of

$145 billion.

uses. Enforcing the Mine Act, which is sup-

posed to benefit “mostly” adult men, who are

compensated (at least in part) for the hazards

that they face, might not be the noblest use

of society’s scarce resources.

236

The Unexpected

Distributional Effects of

the Mine Act

Although the public does not generally

think in terms of whether a particular social

policy is the best use of society’s scarce

resources, the public usually does concern

itself with what elements of society bear the

costs.

237

Identifying the elements of society

that reap the benefits is equally important. In

the case of the Mine Act, the distributions are

somewhat surprising.

It is generally understood that mine oper-

ators bear the costs that result from attempt-

ing to improve safety through forced compli-

ance. It is, however, tax-paying consumers

who are ultimately left paying the bill for the

Mine Act. Mine operators, who have “the pri-

mary responsibility to prevent . . . the exis-

tence of unsafe conditions” under the Mine

Act, pay the initial costs associated with com-

pliance and law enforcement.

238

Ultimately,

however, those costs are reflected in the com-

modity prices of mining products.

239

As a

result, consumers have to pay higher prices

for electricity, groceries, automobiles, houses,

communications, and everything else that

can trace its origin to mining.

240

In addition,

consumers who pay taxes have to pay even

more since they contribute to the $246 mil-

lion that Congress appropriated to MSHA in

FY02.

Although common sense suggests that con-

sumers and taxpayers bear the cost of forced

compliance, it is more difficult to ascertain the

beneficiaries, particularly where the expected

benefits may never materialize. Perhaps the best

way to identify the beneficiaries is to take note of

the groups that opposed MSHA reform in 1995.

The most vigorous advocate of the Mine

Act has been MSHA. Support for the Mine

Act from within the agency has not been lim-

ited to the extensive lobbying efforts of polit-

ical appointees such as Reich and McAteer.

According to allegations made by Congress

in 1995, career MSHA employees at all levels

actively lobbied to save the agency from a 50

percent budget cut. Rep. Peter Hoekstra (R-

Mich.) alleged that

[district managers and mine inspectors

have] actually offered, that if the mine

operator were to express opposition to

the [Ballenger] bill then the inspector

would go easy on the operator during a

mine inspection.

241

The average salary for an MSHA inspector is

$58,000 per year, higher than that of the aver-

age miner.

242

In this regard, the approximate-

ly 2,300 MSHA employees

243

who have a vest-

ed financial interest in their continued

employment are no different from other

employees who are keen on preserving their

jobs. For example, when McAteer sought to

transfer the functions of MSHA’s Technical

Support Unit from Colorado to West

Virginia, MSHA employees in Denver were

outspoken in their resentment about loosing

their federal jobs and actually demanded a

congressional investigation.

244

Organized labor also adamantly opposed

reform of the Mine Act.

245

For example, Richard

Trumka, president of the United Mine Workers

of America, testified:

My members don’t want MSHA cut

and their health and safety and lives

jeopardized to pay for a tax break for

people who already make and receive

too many tax breaks from the

American government. And make no

mistake about it, they [UMW mem-

bers] believe that their health and

safety is being used as down payment

on tax breaks for the rich.

246

Setting aside the irony of Trumka’s invocation

of class issues when advocating the Mine Act,

which requires all other workers in the United

It is generally

understood that

mine operators

bear the costs

that result from

attempting to

improve safety

through forced

compliance. It is,

however, tax-

paying consumers

who are ultimately

left paying the bill

for the Mine Act.

States to pay extra as consumers and taxpayers

to provide miners with the appearance of

increased workplace protections,

247

it is

important to understand why the miners’

unions would be willing to support a law that

in all likelihood does not provide tangible pro-

tections to their members.

There are at least two possible reasons. First,

it could be that the unions have not considered

the possibility that forced compliance may not

save the lives of their members. Second, and

alternatively, it is also possible that the unions

have ulterior motives. Because the Mine Act

essentially grants miners a federal right to a safe

workplace, the miners’ unions do not have to

commit as much bargaining power to safety

issues, which allows the unions to bargain for

other institutional benefits such as job security

and the protection of bargaining unit work.

248

In addition, the Mine Act enables the unions to

seek intervention from MSHA on both legiti-

mate and illegitimate issues as a means of exer-

cising leverage over the mine operator in both

safety- and non-safety-related disputes.

249

The insurance industry also expressed

concerns about reform of the Mine Act. As

one insurer explained:

Insurance companies understand the

value of MSHA’s mandatory safety

standards and can hardly be pleased

with the prospect of mine safety

becoming a discretionary option for

their policy holders.

250

The perceived value of MSHA’s forced compli-

ance approach to insurance companies is that,

to the extent that it reduces any injuries, it

reduces the insurance industry’s exposure to

liability at the expense of consumers and tax-

payers. In addition, mandatory inspections by

MSHA reduce the need for private insurers to

perform mine inspections. As discussed above,

however, the actual value of MSHA’s forced

compliance approach to insurers is question-

able because that approach may actually

impair the market for safety.

As a whole, the mining industry did not

unequivocally support reform of the Mine Act.

While numerous mining industry groups sup-

ported reform,

251

that support was far from

unconditional.

252

The National Mining

Association, which incidentally also supported

Convention 176, took a fairly neutral stance on

Mine Act reform.

253

While the NMA’s motive

for supporting Convention 176, which essen-

tially encourages the imposition of regulatory

burdens on competitive foreign mine opera-

tors, is obvious,

254

the explanation for its luke-

warm support of Mine Act reform is less

clear.

255

One possible explanation for such con-

ditional and lukewarm support is that industry

groups viewed the proposed OSHA-MSHA

merger, which was a primary component of the

1995 budget-oriented reform proposal, as cre-

ating the prospect for even more generic regu-

lations and even less competent inspectors.

256

Another possible explanation is that certain

association members, particularly large union-

ized coal operators, were specifically opposed to

reform of the Mine Act.

257

The largest represen-

tative of union coal operators, the Bituminous

Coal Operators’ Association, did not support

MSHA reform.

258

The comments of a represen-

tative of one large mining company, who spoke

out publicly against MSHA reform, reveal that

certain large coal mine operators may perceive

the Mine Act as providing them with protec-

tion from competition with smaller nonunion

coal mine operators.

259

In this regard, the Mine

Act puts large mine operators, particularly

unionized ones that already have to commit

resources to compliance and enforcement activ-

ities under a union contract, on more equal

footing with smaller operators, who do not bear

that burden.

260

For example, under the Mine

Act, a small mine operator has to implement a

regulatory compliance program, which may

not improve the bottom line, possibly even at

the expense of another type of accident preven-

tion program, which may.

261

Thus, it is possible

that some large unionized mining companies

consider forced compliance under the Mine Act

a lesser problem than competition from small

nonunion mine operators.

The National Safety Council also opposed

reform of the Mine Act.

262

Because the NSC has

more than 18,000 member organizations repre-

Certain large coal

mine operators

may perceive the

Mine Act as

providing them

with protection

from competition

with smaller

nonunion coal

mine operators.

senting diverse political viewpoints, it is doubt-

ful that the not-for-profit organization, whose

stated mission is “protecting life and promot-

ing health,” had an ulterior motive in opposing

reform.

263

To the contrary, in theory, a reduc-

tion in the federal government’s role might

have actually created opportunities for the NSC

to expand its consultative, education, and train-

ing businesses. Thus, the NSC’s motive for

opposition to MSHA reform appeared to be

simply an erroneous assumption regarding

“the relative success of the MSHA program.”

264

As set out above, MSHA’s success is more myth-

ical than factual.

A few mine safety professionals also quietly

opposed the reform of the Mine Act. Those safe-

ty professionals believed that the persistent threat

of MSHA enforcement gave them extra credibili-

ty and authority with mine managers who might

otherwise permit expediency to interfere with

sound moral and long-term economic judg-

ments in particular circumstances.

265

The flaw in

that line of support for the Mine Act is that there

are numerous alternative threats of loss (for

example, insurance concerns, injury-related costs,

tort liability) that safety professionals can invoke

to convince short-sighted mine managers to

invest time and resources in accident preven-

tion.

266

As set out above, in terms of dollars, those

potential losses are much more significant than

any sanctions that are likely to be imposed under

the Mine Act.

The Views of Miners on

Forced Compliance

Reform of the Mine Act was also opposed by

some miners. For example, a group of UMWA

coal miners from different states traveled to

Washington, D.C., to attend congressional

hearings and oppose reform of the Mine Act in

1995.

267

The apparent motivation for those

miners’ opposition to any reform of the Mine

Act, at least according to two op-eds written by

coal miners who have worked for mining com-

panies in eastern Kentucky, was a belief that

mine safety depends on forced compliance:

The industry has improved because

MSHA has the power to fine and close

mines if operators don’t do what is

required of them.

268

And

Can you imagine asking this company

or any other company to simply abide

by the law, but have no one there to

make them comply?

269

While it is unclear whether those views are

representative of all UMWA miners, non-

UMWA miners and noncoal miners, it is not

altogether surprising that miners would sup-

port the Mine Act, which was enacted specif-

ically for their benefit and gives them per-

ceived advantages, such as regular federal

inspections, that other nonmining workers

do not enjoy.

However, miners’ opposition to the reform

of the Mine Act should not be construed as

evidence that they actually benefit from forced

compliance. The reasons cited by the miners

who advocated the continuation of the forced

compliance model are not any better than the

reasons put forth by MSHA and Congress. For

example, reminiscent of the 1977 Congress’s

reasoning in deciding to strengthen the Coal

Act and McAteer’s statements regarding

Southmountain, miners have argued that the

failures of forced compliance highlight the

need for forced compliance:

Ballenger and his followers simply

believe that if we ask the coal companies

to work safe, they will. But take a look at

the Southmountain explosion. It was

apparent that every safety and health reg-

ulation in the book was broken, and this

was with the government telling them

“this is the law.”

270

And

When MSHA inspectors are not on the

site, some of my employers have forced

The reasons cited

by the miners

who advocated

the continuation

of the forced com-

pliance model are

not any better

than the reasons

put forth by

MSHA and

Congress.

us to work in dangerous environments,

in violation of the MSHA approved

mining plan.

271

However, the fact that forced compliance

does not work in some instances does not

prove that it does work in other instances. To

hide the flaw in this line of argument, emo-

tion is used as a substitute for logic:

If Ballenger gets his legislation passed,

he is guilty, along with anyone else who

signed up with him, of sending some

of our miners to their deaths.

272

And

I challenge anyone in Congress who

supports Ballenger’s bill to help us go

through rubble and help us find

enough body parts to help us piece our

coal mining buddies back together.

273

Although any loss of life resulting from a

mining accident is certainly tragic, and espe-

cially difficult for the brave miners who par-

ticipate in recovery operations, it does not

follow that accidents are prevented by forced

compliance and that the Mine Act actually

benefits miners.

274

In fact, the irony of those particular min-

ers’ opposition to reform of the Mine Act is

that 25 years of federal police intervention

apparently have not improved their situa-

tion. Evidently, coal miners in eastern

Kentucky are still faced with a “cruel choice”

between an unsafe job and the unemploy-

ment line:

I can tell you from a coal miner’s view

why dangerous conditions exist and

persist today—it’s called job security.

You can’t trust some operators. You

can’t say to these operators “I’m not

doing that” and then wake up the next

morning and have a job. Simply put,

miners are faced with a cruel choice

between a job that can kill them and the

unemployment line.

275

And

I won’t work in unsafe conditions and

the bottom line is that I have been black-

listed from the coal fields of Eastern

Kentucky for simply insisting that I be

allowed to work in safe conditions.

276

There is no disputing that the predicament

described by those miners is a harsh one, par-

ticularly where the “choice” to work in a “dan-

gerous” coal mine is occasioned by other choic-

es, such as dedication to family, which are

beyond reproach. It is disputable, however, that

forced compliance has made that choice any

less cruel. The fact of the matter is that the Mine

Act cannot remedy and has not remedied the

apparent lack of viable alternative employment

opportunities in eastern Kentucky.

The Risk Preferences of

Miners

Although those particular miners

endorsed the Mine Act’s forced compliance

model with their words, their actions are

actually a testament to the functionality of

the market approach to mine safety, which

depends in large part on the choices made by

individual miners. Both miners had adequate

information about the hazards that they

faced and determined that they did not want,

or were not being paid enough, to put their

personal safety at risk.

Fortunately, American society respects

their choice to get out, and neither govern-

ment nor creditors can force them back into

the mines against their will. Scholars have

debated whether the local mine may have

presented the only realistic employment

option in earlier times,

277

but today, when the

population is mobile

278

and the national

unemployment rate remains under 6 per-

cent,

279

circumstance does not force individ-

uals into the mines.

280

Although there is a strong temptation to

focus on the difficult choices faced by particu-

lar individuals, it is important not to lose sight

Today, when the

population is

mobile and the

national unem-

ployment rate

remains under 6

percent, circum-

stance does not

force individuals

into the mines.

of the aggregate effect of those choices. For

example, if enough individuals in eastern

Kentucky had risk preferences similar to those

of these particular miners, the mines in the area

would have to pay higher wages to attract other

workers, to make improvements to make the

mines safer, or to close, as mines often do, when

the costs of production exceed the price of min-

erals sold. Ultimately, the market for safety, to

the extent that it is not unduly impaired by

moral hazards or inadequate information,

reflects the current risk preferences of all min-

ers and potential miners.

Although this level of safety may be high-

er or lower than the level sought by legisla-

tors and regulators,

281

it nonetheless reflects

the choices of individuals who work in mines

as opposed to individuals who work in office

buildings in Washington, D.C., and

Arlington, Virginia.

282

Historically, miners

have resented the paternalistic risk choices

made by federal and state regulators and even

mine operators when the choices have

impacted the miner’s ability to earn a higher

wage or restricted his freedom. For example,

coal miners initially opposed electric cap

lamps, permissible explosives, hard hats, and

goggles; and hard-rock miners initially

opposed the introduction of permissible

explosives and mechanization.

283

To some

extent, similar resentment is still expressed

by miners today.

284

That is especially true at

mining operations where there is little or no

distinction between the operator and the

miner, such as family owned and operated

mining operations and operations where the

miners are independent contractors.

285

this regard, the enforcement of mandatory

safety standards is seen, not as an expansion

of a worker’s “rights,” but rather as a sign of

disrespect for a worker’s right, as an individ-

ual, to select a job that best suits his personal

risk-to-pay preferences.

286

The imposition of Washington’s risk pref-

erences is perhaps most egregious when they

are exported to less-developed nations. In

addition to being outside the scope of the

Mine Act’s original jurisdiction and legisla-

tive mandate, initiatives such as the ILO’s

Convention 176 are unethical in that they

seek to impose the risk preferences of wealthy

Americans on the peoples of other nations.

While such initiatives are undertaken under

the guise of improving labor standards

worldwide, the less-publicized motive is to

level the international playing field for the

heavily regulated mine operators in the

United States.

287

Irrespective of the motiva-

tion, the ultimate effect of not trusting the

risk preferences of workers in poorer coun-

tries is usually not better working conditions

for those workers but the lost opportunity to

raise their standard of living.

288

The Improvement of Safety

through Wealth Creation

In the final analysis, it is probably a rising

standard of living, more than anything else,

that reduces mining fatalities. Although the

apparent correlation between rising per capi-

ta income and declining mine fatality rates

(Figure 8) does not prove a cause and effect

relationship, there are innumerable ways in

which wealth reduces mining injuries.

Nations with accumulated wealth can

substitute equipment for labor. Those

nations also have better health care facilities

to mend injured miners and greater

resources to commit to rescue operations.

Perhaps most important, nations with accu-

mulated wealth are usually comprised of

individuals who are adverse to job risk. In

this regard, McAteer’s observation that

“[m]ost miners and mine operators alike

have a commitment to safety and health that

once was rare,” is just another way of saying

that the risk preferences of American miners

have changed.

289

As a result of the change,

which is almost certainly related to the

nation’s growing wealth, the nation’s mines

are safer than they were in the past.

290

Thus, while it is certainly true that “there

are more important things than the pursuit of

material wealth,”

291

it is also true that “[f]ew

things have saved as many lives as the simple

growth of wealth.”

292

The public policy impli-

The market for

safety, to the

extent that it is

not unduly

impaired by

moral hazards or

inadequate infor-

mation, reflects

the current risk

preferences of all

miners and

potential miners.

cations of this observation are important: any

social legislation that reduces society’s wealth

by committing society’s scarce resources to

endeavors whose costs do not exceed the ben-

efits is counterproductive. The Mine Act,

which possibly commits more than $7 billion

of society’s scarce resources annually to

achieve no measured benefits in terms of lives

saved, obviously fails this test. Congress

should consider repealing the Mine Act.

The Transition to the

Market Approach to Safety

For the last 25 years, MSHA has success-

fully used scare tactics to oppose all efforts to

repeal or to reform the Mine Act. In 1995, for

example, McAteer stated to Congress:

By repealing the Federal Mine Safety

and Health Act of 1977, and by substi-

tuting a much weaker enforcement

scheme, H.R. 1834 would return us to

an earlier era. Mining communities

remember that era, even if others have

forgotten. Mine explosions were com-

mon. Roof falls were routine. Miners

and their families paid the price.

293

However, given present risk preferences,

advancements in technology, and liability con-

cerns, it is virtually certain that the mining

conditions that existed in the nation’s “earlier

era” are gone forever. Thus, in the mine safety

context, “the fundamental question that we

must address is whether we should continue

to sacrifice additional lives in an effort to pre-

serve this popular mythology.”

294

That is not to say that the transition from

forced compliance to a market-based

approach is guaranteed to be flawless. It may

take time for the regulatory status quo to

unwind. For example, because labor prices are

often locked in by long-term contracts, it

could take as long as a decade for higher labor

costs to accurately reflect the risk-pay prefer-

ences of miners.

5,000

10,000

15,000

20,000

25,000

30,000

1931 1941 1951 1961 1971 1981 1991

100

150

200

250

300

In the final analy-

sis, it is probably

a rising standard

of living, more

than anything

else, that reduces

mining fatalities.

Figure 8

Increasing Wealth and Mine Fatality Rates

Sources: For mine fatality rates, author’s calculation ([coal fatalities + metal fatalities] ÷ [number of coal miners

+ number of metal miners]) based on data from U.S. Department of Labor, MSHA Internet, Metal/Nonmetal

Fatalities 1900 [1931] through 2001, www.msha.gov/centurystats/mnmstats.htm; and U.S. Department of Labor,

MSHA Internet, Coal Fatalities for 1900 through 2001, www.msha.gov/centurystats/coalstats.htm. U.S. per capita

income from Bureau of Economic Analysis, Regional Accounts Data, Annual State Personal Income (United

States), www.bea.doc.gov/bea/regional/spi/drill.cfm?table=SA05H&lc=30&years=1957,1956,1955,1954,1953,

1952,1951,1950,1949,1948,1947,1946,1945,1944,1943,1942,1941,1940,1939,1938,1937,1936,1935,1934,1933,1

932,1931,1930,1929&format=htm (converted to 1998 dollars using conversion factor from Consumer Price Index

Conversion Factors to Convert to Dollars of the Year 1998, www.orst.edu/dept/pol_sci/fac/sahr/sahr.htm).

Year

Income

Fatalities

In the unlikely event that mining injuries or

fatalities on a production-rated basis increased

during the transitional period (or even there-

after), Congress might again be pressured by

special interest groups to intervene in the mar-

ket for mine safety. In the event that Congress

succumbs to that pressure, it should resist a

return to the forced compliance model embod-

ied in the Mine Act for all of the reasons dis-

cussed above.

295

To the extent that intervention

may be politically expedient and necessary,

Congress should narrowly tailor its actions to

whatever specifically contributed to the rising

accident rates.

For example, if it was established that min-

ers were not demanding adequate hazard pre-

miums, a system could be put in place to pro-

vide miners with greater information about the

relative risks that they face at the workplace.

296

One information-based approach that the fed-

eral government could take is to make a nation-

al registry of injury statistics available.

297

Such a

registry could contain the injury statistics of

particular mines and mine operators, as well as

necessary ownership and control information.

A miner seeking employment or to change jobs

would access the registry over the Internet and

use it to make a better-informed decision about

possible employment opportunities. For exam-

ple, he might choose to accept a lower rate of

pay, a longer commute, or a complete reloca-

tion in order to work at a mine or for a compa-

ny with better injury rates. Such government

encouragement of safety-based competition

would put less-safe mines and less-safe mine

operators at a disadvantage; eventually they

would be put out of business as compensating

wage differentials made their continued opera-

tion unprofitable.

To the extent it focuses on accident rates,

MSHA’s present Data Retrieval System is a

step in the right direction in this regard, given

that it provides miners with fatal and nonfatal

injury rates at different mining operations.

298

However, substantial refinement would be

required to create a system that provides reli-

able and understandable information to min-

ers about the relative risks faced at competing

mining and even nonmining operations.

299

Moreover, the information collection system

would need to be refined to ensure that the

direct and indirect costs associated with the

collection and dissemination of information

did not outweigh the benefits of such a sys-

tem.

300

Ideally, such a registry might even be

maintained by a nongovernmental entity such

as the National Safety Council.

As another example, Congress might con-

sider offering preferential treatment to mine

operators that meet certain injury thresholds as

a means of encouraging additional investment

in safety if it was established that labor, injury,

insurance, and workers’ compensation costs

did not create sufficient incentives. MSHA

already uses injury thresholds in the issuance of

its annual safety awards to mine operators.

301

However, instead of getting a piece of paper, the

mine operator would get a tangible monetary

benefit for meeting the thresholds. The benefits

could range from lower federal tax rates to

lower royalty rates on resources extracted from

federal lands.

302

Lost tax revenues or royalties

would pale in comparison with the societal

resources lost to forced compliance. Tax breaks

would be preferable to an injury tax because a

tax diverts resources from the private sector,

which can prevent accidents, to government,

which cannot prevent accidents.

303

The Role of Local Law

Enforcement

Regardless of whether or not the federal

government intervenes in the market for

mine safety, there will be operators who will

choose to expose individual miners to hid-

den risks despite the economic incentives to

prevent accidents; and even at mines where

the operator has removed the barriers to safe

behavior, there may be individuals who will

choose to put themselves and others at risk.

Those operators and individuals, to the

extent that their deliberate or reckless choic-

es endanger others, may be appropriate can-

didates for law enforcement. However, to the

extent that law enforcement is necessary and

appropriate, it should be carried out by state

To the extent that

law enforcement

is necessary and

appropriate, it

should be carried

out by state and

local govern-

ments, not by

the federal

government.

and local governments, not by the federal

government.

At present the Mine Act provides two law

enforcement mechanisms by which the federal

government can deal with bad actors in the

nation’s mines: civil penalties and criminal

sanctions. Under the Mine Act, MSHA can levy

civil penalties and criminal sanctions not only

against mine operators but also against “corpo-

rate directors, officers and agents,” including

mine foremen, who “knowingly authorized or

carried out such violation.”

304

Because of an

oddity in the Mine Act, the criminal and civil

penalties are not available against directors,

officers, and agents of noncorporate operators

such as sole proprietorships, partnerships, and

limited liability companies.

305

As indicated

above, miners are also largely exempt from fed-

eral law enforcement.

The problem with the present federal

approach, apart from the fact that only a select

minority of the individuals who work in the

nation’s mines are subject to punishment, is that

it usurps local law enforcement. The Mine Act

does not expressly preempt state or local enforce-

ment.

306

Moreover, most state governments have

laws on the books that enable the successful

prosecution of workplace crimes, such as negli-

gent homicide, reckless endangerment, and the

like.

307

Furthermore, most governments of min-

ing states have mine inspectors who are available

to assist local prosecutors with technical mining

issues. Nonetheless, the reality is that active par-

ticipation by federal mine inspectors usually

diminishes the role of state and local authorities

to the point where local law enforcement offi-

cials generally do not meaningfully participate in

mine accident investigations.

308

As a result, deci-

sions about whether to prosecute an entity or an

individual are made by federal mine inspectors

and federal attorneys, and sentencing decisions

are made by federal judges, none of whom have

any relationship with or accountability to the

affected community.

The result of the lack of accountability to

the local populace is incoherent law enforce-

ment, in that actors who should not be penal-

ized are penalized and actors who should be

punished are not punished severely enough.

For example, MSHA has used the Mine Act to

civilly prosecute supervisors for noncriminal

violations of its regulations, even where they did

not intend to violate the law and had only con-

structive knowledge of the violative condi-

tions.

309

On the other hand, the federal govern-

ment has been accused of being lax in punish-

ing the serious malefactors.

310

Those are mis-

takes that local officials who are accountable

and more in touch with the local mining com-

munity may be less likely to make.

311

Therefore,

law enforcement, where necessary, should be

reserved to the states under their existing crim-

inal codes.

The End of a Legacy

A common misperception is that “the

Federal Mine Safety and Health Act is a sib-

ling of the of the OSH Act that applies only

to the mining industry.”

312

In fact, the OSH

Act is a sibling of the Coal Act, which fol-

lowed the Farmington mine disaster. As

McAteer has correctly pointed out, “[T]oday,

thousands upon thousands of workers

beyond the coal industry indirectly owe fed-

eral safety and health protection upon which

they rely to the Farmington disaster.”

313

The legacy of Farmington is that the federal

government now attempts to improve work-

place safety and health for all workers in the

United States through forced compliance,

whereas prior to Farmington it tried to improve

workplace safety and health with information

empowerment. The legalistic approach is now

so firmly embedded in our safety psyche that it

does not even raise eyebrows when the head of

the federal mine safety agency states that “it

ought to be the purpose of the lawyers and of

the mine inspectors [i.e., police] to improve

health and safety.”

314

The simple fact of the matter is that lawyers

and police cannot effectively or efficiently

improve mine safety. Safety has to start and fin-

ish with the individuals who make up the min-

ing industry. For that to happen, the federal

government will have to repeal the forced com-

pliance provisions of the Mine Act.

Safety has to start

and finish with

the individuals

who make up the

mining industry.

For that to hap-

pen, the federal

government will

have to repeal the

forced compli-

ance provisions

of the Mine Act.

Notes

1. Federal Mine Safety and Health Act (1977), 30

U.S.C. 802(c) et seq.

2. Robert Reich, quoted in U.S. Department of

Labor, Mine Safety and Health Administration,

“MSHA Commemorates 25th Anniversary of

Coal Act,” News release, March 30, 1995,

www.dol.gov/opa/media/press/msha/msh95110.

htm.

3. J. Davitt McAteer, quoted in ibid.

4. Cass Ballenger, Opening Statement, Hearing

on the Federal Mine Safety and Health Act before

the Subcommittee on Workforce Protections of

the House Committee on Education and the

Workforce, July 30, 1998, http://edworkforce.

house.gov/hearings/105th/wp/msha73098/bal

lenger.hm.

5. Colleen M. O’Neill, “OHSA Plan ‘Should Be

Called Die Act,’” AFL-CIO News, July 3, 1995,

www.aflcio.org/publ/newsonline/95jul3/osha.ht

ml.

6. “But the true toll cannot be calculated in dol-

lars and cents, for behind every number is a neigh-

bor. On June 9, a worker was . . . killed at a

Montana Copper mine, when he fell from the

170-ton haul truck he was repairing.” Robert B.

Reich, Remarks before Subcommittee on

Workforce Protections of the House Committee

on Economic and Educational Opportunities,

June 28, 1995, www.dol.gov/asp/programs/histo

ry/reich/congress/062895rr.htm.

7. Thomas Sowell, Basic Economics: A Citizens Guide to

the Economy (New York: Basic Books, 2000), p. 306.

8. Given that there are human lives and billions of

dollars at stake, no one individual is qualified to

make such a determination. The determination

needs to be made by economists, accountants,

actuaries, statisticians, sociologists, and safety

professionals, preferably ones who have no or lim-

ited vested interest in the Mine Act’s future.

9. See, for example, Contractor’s Sand & Gravel Inc. v.

FMSHRC, 199 F.3d 1335 (D.C. Cir. 2000) (award of

$100,000 in attorney’s fees and expenses against

MSHA in a case involving a vacated citation that

carried a $7,000 civil penalty assessment).

10. The focus of this paper is on the provisions of

the Mine Act that deal with safety regulation,

inspection, and enforcement. The provisions

dealing with health regulation, inspection, and

enforcement; black lung benefits; mandatory

training; and whistleblowers are beyond the scope

of this paper but are worthy of equal scrutiny.

11. Davitt McAteer, “Farmington Victims Left

Legacy to Nation’s Miners,” MSHN [Mine Safety

and Health News] 5 (November 27, 1998): 532.

12. U.S. Department of Labor, “Injury Trends in

Mining,” Fact sheet, MSHA Internet,

www.msha.gov/MSHAINFO/FACTSHET/MSH

AFCT2.HTM.

13. “Explosions never accounted for as much as a

quarter of the miners’ mortality.” Mark Aldrich,

“Preventing ‘the Needless Peril of the Coal Mine’:

The Bureau of Mines and the Campaign against

Coal Mine Explosions, 1910–1940,” Technology

and Culture 36, no. 3 (1995): 518.

14. Chris Stirewalt, “Loss of Life Leads to

Change,” Charleston Daily Mail, February 9, 1999,

www.dailymail.com/static/specialsections/look

ingback/lb0209.htm.

15. Ibid. See also H.R. 91-563, Federal Coal Mine

Safety and Health Act, 91st Cong., 1st sess., October

13, 1969, www.msha.gov/SOLICITOR/COALACT/

69hous.htm (“General Subcommittee on Labor

conducted 10 days of public hearings on coal mine

health and safety proposals. Included in the hearing

record are the views of representatives of operators

of large coal mines; operators of small coal mines;

the coal miners’ union; individual mine workers;

interested parties; and Administration personnel.”).

16. “Only in 1969 was federal legislation dealing

comprehensively with coal mine safety enacted.”

National Research Council, Committee on

Underground Coal Mine Safety, Commission on

Engineering and Research Systems, Towards Safer

Underground Mines (Washington: National

Academy Press, 1982), p. 54.

17. Sowell, p. 308.

18. For an analysis of compensating wage differen-

tials in bituminous coal mining from 1890 to 1930,

see Price V. Fishback, Soft Coal, Hard Choices (New

York: Oxford University Press, 1992), pp. 79–98. But

see Hal Sider, “Safety and Productivity in

Underground Coal Mining,” Review of Economics and

Statistics, May 1983, pp. 225, 231. Sider suggests, but

does not conclude, that at union coal mining opera-

tions where wages are not determined competitively,

a mine operator’s wage costs might be insensitive to

risk.

19. “I will insist on following the rules if I think that

I am going to get hurt or killed or that I may get

someone else hurt or killed [and] I won’t work in

unsafe conditions.” Danny Sheperd, “A Miner’s

Perspective of the Ballenger Bill and the Proposed

MSHA/OSHA Cuts,” MSHN2 (June 30, 1995): 362.

20. For an econometric analysis of compensating

wage differentials, see Kip A. Viscusi, Employment

Hazards: An Investigation of Market Performance

(Cambridge, Mass.: Harvard University Press,

1979).

21. For a summary of the literature discussing risk

premiums, see Thomas O. McGarity and Sidney A.

Shapiro, Workers at Risk: The Failed Promise of the

Occupational Safety and Health Administration

(Westport, Conn.: Praeger, 1993), pp. 18-20.

22. It is important to note that this is only an

observation and that a calculation of actual risk

premiums is much more complex. See Viscusi,

Employment Hazards, pp. 42–45.

23. U.S. Department of Labor, Bureau of Labor

Statistics, Career Guide to Industries, 2002–03,

www.bls.gov/oco/cg/cgs004.htm.

24. National Mining Association, Mining

Facts/Fast Facts, www.nma.org/fastfacts.html.

25. David Lauriski, Remarks to 62nd Annual

Meeting of the Kentucky Mineral Law Institute,

reprinted in MSHN 7 (August 31, 2001): 387.

26. “Indirect costs, though hidden, are real and

are estimated to be at least four times the insured

costs.” Dave Carlson, Michigan State Grants

Program, “Barriers to Safe Employee Behavior,”

MSHN 6 (January 22, 1999): 50. “A commonly

accepted figure is that for every dollar that the

insurance carrier pays out on a workers’ compen-

sation claim, the company may have an indirect

expense of around six dollars.” Rob Brooks,

Chubb Group of Insurance Companies,

“Rethinking Mine Safety Management,” MSHN2

(August 25, 1995): 457.

27. “[R]ising injury costs were the spur that goaded

the large metal mines to begin organized safety

work.” Mark Aldrich, Safety First: Technology, Labor

and Business in the Building of Work Safety, 1870–1939

(Baltimore: Johns Hopkins University Press, 1997),

p. 247.

28. “Companies Can Expect Higher Compensation

Insurance,” MSHN 7 (September 1, 2000): 381.

29. Western Mine Engineering, Inc., “U.S. Metal

and Industrial Mineral Mine Salaries, Wages, and

Benefits & U.S. Coal Mine Salaries, Wages, and

Benefits 2000 Survey Results,” 2000.

30. For a summary of changes in employer tort

liability, see McGarity and Shapiro, pp. 18–20.

31. “Widow, Son Sue Baylor Mining for $10

Million in Mine Death,” MSHN 9 (January 21,

2002): 41; “N.M. Supreme Court Allows Employers

to Be Sued for Misconduct in Accidents,” MSHN 8

(October 29, 2001): 480; “Families File First

Lawsuits in Jim Walter Mine Disaster,” MSHN 8

(October 15, 2001): 456; “Lawmakers Want to

Change Wyoming Constitution to Allow Worker

Lawsuits,” MSHN 8 (August 3, 2001): 364; “Worker

Injured in Fall Awarded $6.7 Million by Alabama

Jury,” MSHN 8 (May 25, 2001): 247; “Missouri

Court Reinstates Widow’s Lawsuit against Lone

Star,” MSHN 8 (April 13, 2001): 177; and “Widow

Sues Kentucky Coal Company over Husband’s

Death,” MSHN 8 (January 19, 2001): 46.

32. John D. Worrall says that the incentive for

employers to maintain safe workplaces to avoid

premium increases will be offset to some extent

by the moral hazard created by the compensation

for injured miners. John D. Worrall, Safety and the

Work Force (Ithaca, N.Y.: IRL Press, 1983), p. 154.

According to Price V. Fishback and Shawn E.

Kantor, the limited empirical studies have indi-

cated that in most industries, except notably coal

mining, the incentives for operators to invest in

safety outweighed the moral hazards, resulting in

fewer injuries. Price V. Fishback and Shawn E.

Kantor, A Prelude to the Welfare State (Chicago:

University of Chicago Press, 2000), pp. 77–83.

33. “An experience modification factor (EMF) takes

into account . . . [a mine operator’s] past [insurance]

claims. . . . The EMF is a direct multiplier to your pre-

mium cost so your costs for insurance would be 75%

or 150% of the initial cost depending on your claims

experience.” Carlson, p. 51.

34. With respect to coal mine explosions, “econom-

ic incentives were probably more important than

legal changes in encouraging the spread of rock

dusting, [the practice of covering all surface areas in

the mine with incombustible material, because, in

part] explosions could be extremely expensive, for

they often destroyed the mine.” Aldrich, “Preventing

‘the Needless Peril of the Coal Mine,’” p. 513.

35. For example, Larry Lankton found that

“major fires were very expensive in terms of lost

revenues and large recovery rates.” Larry Lankton,

Cradle to Grave: Life, Work and Death at the Lake

Superior Copper Mines (New York: Oxford

University Press, 1991), p. 120.

36. U.S. Department of Labor, MSHA Internet Site,

History of Mine Safety and Health Legislation,

www.msha.gov/MSHAINFO/MSHAINF2.HTM.

37. Fishback, p. 113. “The Bureau had no power

of inspection or supervision, but was to cooperate

with mining interests, providing them the tech-

nological support needed to reduce the ‘needless

perils’ and other wastes of the mining.” Aldrich,

“Preventing ‘the Needless Peril of the Coal Mine,’”

p. 491.

38. “[T]he bureau gradually mastered the art of

prodding operators into implementing the new

technologies that resulted from its scientific

investigations.” Ibid., p. 495.

39. John Mendeloff, Regulating Safety: An Economic

and Political Analysis of Occupational Safety and

Health Policy (Cambridge, Mass.: MIT Press, 1979),

p. 25.

40. Ibid.

41. “Even though miners are afraid of someone

getting killed—rarely do they believe that it could

be them.” Sheperd, p. 363.

42. Viscusi, Employment Hazards, pp. 133, 143. See

also W. Kip Viscusi, Risk by Choice: Regulating Health

and Safety in the Workplace Cambridge, Mass.:

Harvard University Press, 1983), pp. 73–75.

43. Rhea Graham, “Goodbye to an 85 Year Old

Agency; Farewell to Bureau of Mines,” MSHN 2

(November 17, 1995): 623.

44. “These findings demonstrated that virtually all

American bituminous coal dust, if sufficiently fine

and mixed with gas, was highly explosive and

required large amounts of inert material [i.e., pulver-

ized rock dust] to neutralize it.” Aldrich, “Preventing

‘the Needless Peril of the Coal Mine,’” p. 501.

45. Viscusi, Employment Hazards, pp. 133, 143.

46. Fishback, p. 113.

47. See generally Aldrich, Safety First; and Aldrich,

“Preventing ‘the Needless Peril of the Coal Mine.’”

48. For a detailed history of “the federal takeover”

of mining regulation, see James Whiteside,

Regulating Danger (Lincoln: University of Nebraska

Press, 1990), pp. 175–201.

49. For a summary of the history of mine safety

legislation, see ibid and U.S. Department of

Labor, History of Mine Safety and Health Legislation.

50. See Whiteside, pp. 175–201.

51. Walter J. Hickel, secretary of the interior, quot-

ed in H.R. 91-563.

52. “Official figures claim there are fewer than

10,000 mining deaths a year. The real figure is

more likely to be closer to 20,000.” “Coal Mining in

China, Introduction,” China Labour Bulletin,

January–February 2000, http://iso.chinalabour.

org.hk/-iso/article.adp?article_id=1086. “[R]ecent

government moves to match production levels to

slowing consumer demand could see production

in the year 2000 at a level closer to 1,100 to 1,200

million tonnes [run-of-mine].” International

Energy Agency, Coal in the Energy Supply of China,

www.iea.org/pubs/studies/files/coachi/coachi.ht

m#chart.

53. Number of fatally injured coal miners in 2000

from U.S. Department of Labor, MSHA Internet,

Coal Fatalities for 1900 through 2001, www.msha.

gov/centurystats/coalstats.htm. U.S. coal produc-

tion in 2000 from Energy Information Administra-

tion, Coal Industry Annuals, 1994–2000, http://

tonto.eia.doe.gov/FTPROOT/coal/coalpubs.htm.

54. U.S. coal production for 1969 and 1934 from

Energy Information Administration, U.S.

Bituminous and Lignite Coal Production 1900–

1993, 1995, Table 18, pp. 65–66, http://tonto.eia.

doe.gov/FTPROOT/coal/006493.pdf. U.S. anthra-

cite coal production 1900–1993 from Pennsylvania

Department of Environmental Protection 2000

Annual Report on Mining Activities, Table 1,

www.dep.state.pa.us/dep/deputate/minres/

bmr/annualreport/2000/table01.htm. Fatalities

from U.S. Department of Labor, MSHA Internet,

Coal Fatalities for 1900–2001, www.msha.gov/cen

turystats/coalstats.htm.

55. The 91st Congress received technically cor-

rect, but otherwise inaccurate, information

regarding the trend in mine fatality rates from

former department of the interior secretary

Walter J. Hickel, who testified that “there has been

no improvement in the overall fatality rate since

1947.” H.R. 91-563. Although the fatality per

employee rates per 100,000 miners in 1947 (236)

and in 1968 (231) were similar, the 1968 rate,

which reflected the Farmington disaster, was an

aberration. Fatalities in absolute numbers had

been steadily declining since the late 1950s after

rising somewhat in the mid-1950s. U.S.

Department of Labor, MSHA Internet, Coal

Fatalities for 1900 through 2001. See also

National Research Council, p. 15. Moreover,

Secretary Hickel neglected to tell Congress that

the fatality per million ton rate had improved by

more than a factor of three between 1947 (1.7)

and 1968 (.56). Number of U.S. coal mine fatali-

ties from U.S. Department of Labor, MSHA

Internet, Coal Fatalities for 1900 through 2001,

www.msha.gov/centurystats/coalstats.htm,

divided by U.S. total coal production (thousand

short tons) 1900 to 1993 from Energy

Information Administration, U.S. Bituminous

and Lignite Coal Production 1900 to 2000, Coal

Products Publications, Coal Data: A Reference,

Table 18, U.S. Production Trends in Bituminous

Coal and Lignite, 1900–1993 (total production,

thousand short tons), 1995, pp. 65–66,

http://tonto.eia.doe.gov/FTPROOT/coal/00649

3.pdf, plus U.S. anthracite coal production 1900

to 1993 from Pennsylvania Department of

Environ-mental Protection, Mining and

Reclamation, 2000 Annual Report on Mining

Activities, Table 1, Anthracite Statistical

Summaries 1870 to 2000 (production, net tons),

www.dep.state.pa.us/dep/deputate/min

res/bmr/annualreport/2000/table01.htm, and

U.S. total coal production 1994 to 2000 from

Energy Information Administration, Coal

Products Publications, Coal Industry Annals

1994–2000 (thousand short tons), http://tonto.

eia.doe.gov/FTPROOT/coal/coalpubs.htm, times

1,000.

56. H.R. 91-563.

57. “[T]he legal background of most congressmen

. . . inclines them to make the reallocation of legal

rights and duties rather than economic incentives

the usual tool for effecting changes in behavior.”

Mendeloff, p. 26. Compare 30 U.S.C. 801(e)

(“operators of such mines . . . have the primary

responsibility to prevent [accidents]”) and 801(a)

(“the first priority and concern of all in the coal or

other mining industry must be the health and

safety of its most precious resource—the miner”);

see also 30 U.S.C. 814(a), 821.

58. U.S. Department of Labor, History of Mine

Safety and Health Legislation.

59. See generally Federal Coal Mine Safety and

Health Act of 1977, Pub. L. 91-73 (1977); and U.S.

Department of Labor, History of Mine Safety and

Health Legislation.

60. “[The Coal Act] allowed ‘first-instance’ penal-

ties, that is, employers could be cited merely for

having a violation, not just for failing to correct

violations cited earlier.” Mendeloff, p. 19.

61. S.R. 95-181, 95th Cong., 1st sess., reprinted in

Subcommittee on Labor of the Senate Commit-

tee on Human Resources, Legislative History of the

Federal Mine Safety and Health Act of 1977, July 1978,

p. 592, www.msha.gov/SOLICITOR/COALACT/

leghist2.htm.

62. Ibid., p. 595.

63. Ibid., p. 592.

64. H.R. 91-563.

65. The UMWA claims that it “convinced

Congress to enact the landmark Federal Coal

Mine Health and Safety Act” in 1969. UMWA

Internet, A Brief History of the UMWA,

www.umwa.org/history/hist1.shtml.

66. Frederic Bastiat, The Law (Irvington-on-Hudson,

N.Y.: Foundation for Economic Education, 1998),

pp. 7–8.

67. H.R. 95-312, reprinted in Subcommittee on

Labor of the Senate Committee on Human

Resources, p. 364.

68. Ibid.

69. Occupational injury incidence rates per

100,000 miners by industry in United States in

1975 and 1976 were anthracite coal 229.2, bitu-

minous and lignite coal 133.9, metal mining 76.9,

private-sector average 57.8, nonmetallic mining

49.8. U.S. Department of Labor, Bureau of Labor

Statistics, “Occupational Injuries and Illness in

the United States Industry, 1978,” Bulletin 2019

(1979): Table 8, p. 79.

70. H.R. 95-312, reprint, p. 364 (citing at length

Frank McGee, treasurer-elect of the United States

Steel Workers of America).

71. “[The UMWA] provided little support for the

bureau [of Mines’] efforts to introduce permissi-

ble explosives and electric cap lamps.” Aldrich,

“Preventing ‘the Needless Peril of the Coal Mine,’”

p. 493.

72. “The appeal of federal action to union leaders

was that it offered a way to bypass the union’s

weak position on these issues in collective bar-

gaining.” Mendeloff, p. 16.

73. H.R. 95-312, reprint, p. 358.

74. U.S. Department of Labor, Bureau of Labor

Statistics, “Occupational Injuries and Illness in

the United States Industry, 1978,” p. 24. Chart 14

ranks the 10 three-digit SIC industries with the

highest injury incidence rate of lost workdays in

1976: water transportation, 452.6; sanitary ser-

vices, 274.6; loggers, 284.5; anthracite coal, 229.2;

private-sector average, 57.8.

75. “The powers not delegated to the United

States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively,

or to the people.” U.S. Constitution, Amendment

Ten.

76. “To regulate Commerce with foreign

Nationals, and among the several States, and with

the Indian Tribes. . . .” U.S. Constitution, Art. 1,

sec. 8.

77. Pub. L. 91-173, sec. 2(f).

78. S.R. 95-181, reprint, p. 590 (discussing federal

takeover).

79. H.R. 91-563 (“Coal is our most abundant fuel

resource. Right now, it supplies nearly a fourth of

our total energy demand and every forecast,

whether by Government or the private sector,

indicates that coal must continue to play a signif-

icant role if this country’s future energy require-

ments are to be satisfied.”).

80. 30 U.S.C. 801(b).

81. 30 U.S.C. 801(c); see also H.R. 91-563 (“it has

also frequently saddened our Nation with news of

crippled men, grieving widows, and fatherless

children.”) (quoting President Nixon).

82. 30 U.S.C. 801(a).

83. Mendeloff, pp. 25–31.

84. Former labor secretary Alexis Herman com-

mented that “Americans workers have a funda-

mental right to a safe and healthful workplace.”

Quoted in “Kaiser, MSHA Agree to $513,000

Settlement with New Safety Measures,” MSHA

News release 2000-1214, December 14, 2000,

www.msha.gov/MEDIA/PRESS/2000/

NR001214.HTM. Reich stated, “If Congress

enacts this legislation, it will be reneging on the

promise it made twenty-five years ago to

America’s workers: the right to a safe and healthy

workplace.” Quoted in “Labor Dept. Denounces

Attempt to Gut Safety Agencies,” MSHA News

release 95-021, June 14, 1995, www.msha.gov/

MEDIA/PRESS/1995/NR950614.HTM. See also

30 U.S.C. 801(a); and H.R. 95-312, reprint, p. 379.

85. “The organized labor movement is the

Department of Labor’s (and OSHA’s [and

MSHA’s]) chief client, and the department is

expected to show at least some partiality to the

interests of organized labor.” Mendeloff, pp. 73–74.

86. 30 U.S.C. 811(a).

87. 30 U.S.C. 813(a).

88. 30 U.S.C. 814(a); 820(a), (c), (d). See also 30

U.S.C. 814(b), (d); 817(a); 821 (authorizing MSHA

to issue orders closing all or part of the mine oper-

ator’s operation and to require the mine operator

to compensate certain miners idled by such

orders in cases involving unwarrantable noncom-

pliance, failure to correct or imminent danger).

89. S.R. 95-181, reprint, p. 596 (“The Committee

believes that there is great need to encourage young

people to go into the occupation of mining as the

need of our nation for the minerals and energy

sources extracted from the earth continues to

increase. It is the Committee’s feeling that the duty of

the Congress, if it is to encourage such employment,

is to make that employment as safe as possible.”).

90. Ibid., p. 593 (“Over the long run, improved

health and safety promotes greater productivity

through reduction of ‘downtime.’”).

91. Ibid. (“Lowered workers’ compensation premi-

ums which should result from improved safety and

health, can be expected to lower production costs.”).

92. 30 U.S.C. 801(d). Emphasis added.

93. J. Davitt McAteer, Testimony before the

Subcommittee on Workforce Protections of the

House Committee on Education and the

Workforce, September 14, 2000, http://edwork

force.house.gov/hearings/106th/wp/msha91400

/mcateer.htm. Emphasis added.

94. Metzgar has pointed out that “[t]he agency

never published analysis of why the fatality rate

declined because it didn’t know.” Carl Metzgar,

“The Map and the Territory: Why the Scientific

Method Is Vital in the Injury Prevention Effort,”

MSHN 3 (May 31, 1996): 296. But see J. Davitt

McAteer, Statement submitted to the

Subcommittee on Workforce Protections of the

House Committee on Economic and Educational

Opportunities on H.R. 1834, the Safety and Health

Improvement and Regulatory Reform Act of 1995,

August 9, 1995, p. 11 n. 2 (citing John Braithwaite,

To Punish or Persuade: Enforcement of Coal Mine Safety

(Albany: State University of New York Press, 1985);

on prior occasions McAteer cited Braithworth in

support of forced compliance even though

Braithwaith does not support the model.

95 McAteer, Testimony of September 14, 2000.

96. U.S. Department of Labor, MSHA, “Reich

Testifies on Proposed Legislation Affecting

OSHA, MSHA Agency Heads Defend Programs,”

Press release, June 28, 1995, www.dol.gov/

opa/media/press/msha/msh95246.htm.

Emphasis added.

97. “Congressman’s Proposal to End MSHA,

OSHA As We Know It,” MSHN 2 (May 5, 1995):

264.

98. McAteer, Statemeent of August 9, 1995, p. 7.

Emphasis added.

99. “Unions Denounce Ballenger Bill in ‘Seven

Days for Safe Jobs’ Protests,” MSHN2 (November

17, 1995): 621.

100. “Ballenger Says MSHA/OSHA Merger Bill Is

Dead—At Least for 1996,” MSHN 3 (March 8,

1996):118.

101. Graham, p. 623.

102. “Blasting Formally Studied and Funded at

University of Utah College of Mines,” MSHN 8

(August 3, 2001): 353; and “Nev. Mining School

Gets $100,000 Grant,” MSHN 6 (January 22,

1999): 46.

103. “Present consultive activities of MSHA

should be expanded. . . . However this technical

assistance should be furnished by a part of the

agency outside the normal inspection and

enforcement operations of MSHA.” National

Research Council, p. 20.

104. “UMW Launching Get-Out-to-Vote Drive in

Support of Clinton,” MSHN 3 (March 22, 1996):

144; and “Clinton Promises to Support Unions,

Fight for MSHA/OSHA Budgets,” MSHN 2

(October 6, 1995): 535.

105. U.S. Department of Labor, MSHA, “Reich

Testifies on Proposed Legislation Affecting

OSHA, MSHA,” Press release, June 25, 1995,

www.dol.gov/opa/media/press/msha/msh95246.

htm. “All workers should enjoy the gains in safety

and health achieved for miners by MSHA and the

Mine Act.” McAteer, Statement of August 9, 1995.

106 See, for example, Alcoa Alumina & Chemicals,

L.L.C., 23 FMSHRC 911(September 14, 2001)

(alumina plant); Kinder Morgan Operating LTD “C,”

23 FMSHRC 73 (January 26, 2001) (marine ter-

minal); Jim Walter Resources Inc., 22 FMSHRC 21

(January 31, 2000) (supply warehouse); Cox

Transportation Corp., 22 FMSHRC 568 (April 5,

2000) (public road); and Herman v. Associated

Electric Cooperative Inc., No. 98-1876 (8th Cir. April

20, 1999) (coal-fired electric generating facility).

107. U.S. Department of Labor, MSHA, “President

Clinton Signs International Convention to Raise

Mine Safety and Health Standards Worldwide,”

News release 2001-0110, January 10, 2001; see also

“Clinton Signs ILO Mine Safety Convention,”

MSHN 8 (January 19, 2001): 44.

108. Ibid.

109. McAteer, Testimony of September 14, 2001.

110. This paper, which is designed to bring the

Mine Act under scrutiny, focuses on MSHA’s data

on the number of miners and fatalities. It is impor-

tant to keep in mind, however, that MSHA’s data,

which presumably focus on miners under its juris-

diction, differ somewhat from the Standard

Industrial Classification and Occupational

Classification Systems used by the Bureau of Labor

Statistics. In addition, because of changes in the

manner in which state mining agencies, the Bureau

of Mines, MESA, and MSHA collected and classi-

fied such data throughout the 20th century, pre-

cise historical comparisons, while desirable, are not

always possible.

111. See, for example, McAteer, Statement of

August 9, 1995. The chart attached to the state-

ment depicts a decline in fatalities per work hour

from 1968 forward without showing a decline

prior to 1968.

112. “The questions of causation are subtle in the

extreme and can only be answered by a rigorous

application of the scientific method.” Metzgar,

“The Map and the Territory,” p. 295.

113. Michael Lewis-Beck and John R. Alford, “Can

Government Regulate Safety? The Coal Mine

Example,” American Political Science Review 74

(1980): 745. See also Braithwaite, pp. 81–82, indi-

cating the existence of two unpublished manu-

scripts that are “totally supportive” of the 1980

study; and McAteer, Statement of August 9, 1995,

p. 11 n. 2, citing Braithwaite as proof for the

proposition that “mine inspections save lives.”

114. Lewis-Beck and Alford, p. 749.

115. Ibid., p. 751.

116. Ibid., p. 752.

117. Ibid., p. 751.

118. U.S. Department of Energy, Energy

Information Administration, A Chronology and

Overview of the U.S. Coal Market, www.eia.doe.gov/

cneaf/coal/chron/chronc.html(mining timeline).

“By 1960, 546 U.S. coal mines were using bolts for

support of mine roof and 57 percent of the under-

ground coal product came from under roof sup-

ported in this manner.” Seth D. Woodruff,

Methods of Working Coal and Metal Mines (New York:

Pergamon, 1966), vol. 2, p. 169.

119. “Since this test and others fail to disaggregate

the overall injury rate, they lose a great deal of the

power they might have had.” Mendeloff, p. 165. See

also Carl Metzgar, who says, “The tiles of the injury

picture have to be looked at as individuals as well as

parts of the whole.” Carl Metzgar, “Politics and the

MSHA Statistics,” MSHN3 (June 14, 1996): 330.

120 Lewis-Beck and Alford, p. 752.

121. Ibid., p. 750.

122. See Whiteside, p. 212; Fishback, p. 122; and

Aldrich, Safety First, p. 251.

123. Lewis-Beck and Alford, p. 750.

124. “This strong association between fatality rate

and mine size could not be explained by any other

mine characteristics that we examined.” National

Research Council, p. 91. “Technological change

[especially the shift from underground to surface

mining] had as much or more to do with declining

death rates as did regulation.” Whiteside, p. 199.

125. MSHA’s data on the number of miners go back

to 1900, whereas the Bureau of Mines’ man-hour

data go back only to 1932. See U.S. Department of

Labor, MSHA Internet, Coal Fatalities for 1900

through 2001. See also Lewis-Beck and Alford,

p.748.

126. The trends for fatalities per man-hour and

fatalities per miner are not identical but closely

approximate each other. See, for example,

National Research Council, Figure 6, p. 39.

127. “As an old American folk song notes, an

underground coal miner once shoveled ‘sixteen

tons’ a day. In 1993, underground ‘longwall’ coal

miners in the Western United States produced an

average of 5.7 tons of coal per worker-hour.” J.

Davitt McAteer, “Don’t Undermine Mine Safety,”

Multinational Monitor 16, no. 10 (October 1995),

www.essential.org/monitor/hyper/mm1090.05.h

tml.

128. H.R. 95-312, reprint, p. 358 (“Studies have

shown that accelerated emphasis on production

tends to push up both fatality and injury rates

among miners.”). “Mechanization has frequently

been held responsible for heightening the risk of

death in the mines.” Lewis-Beck and Alford, p.

750. Lankton notes the importance of evaluating

fatalities in terms of number of miners and

amount of production. Lankton, p. 124.

129. While this is true for coal, it may not hold for

metal and nonmetal mining. For example, with

respect to gold, from a safety perspective, tons of

earth moved might be a better denominator than

ounces of gold produced because it would more

accurately estimate the exposure to hazards. On the

other hand, fatalities per ounce produced may be a

better social measure since it would indicate which

mines have the highest cost in terms of human lives.

Appropriate measures would have to be devised for

each of the metal and nonmetal groups.

130. “Essentially, the industry is right that the num-

ber of people who have to be killed and maimed to

produce a million tons of coal is the more important

statistic for public policy.” Braithwaite, p. 176.

131. “Thus if workers near the face are at a sub-

stantially greater risk than those away from the

face, large mines would tend to have smaller fatali-

ty rates simply because their workforces include a

greater proportion of low-risk miner than do those

small mines.” National Research Council, p. 91.

132. Sider presents an analysis of productivity

and job safety, measured by injuries per million

man-hours in underground coal mining in

Illinois between 1962 and 1976, using estimation

of an extended Cobb-Douglas production model

that incorporates work-related accidents as a joint

output. Sider, p. 225.

133. “The results indicate that movements along

the product transformation curve relating acci-

dents and marketable output do not account for

the decline in measured productivity. This decline

instead reflects a downward shift of this frontier—

a real decline in potential production of mar-

ketable output. The non-linear pattern in techno-

logical change parameters and differences in these

parameters across technologies indicate that a

variety of factors have influenced productivity

trends including CMHSA [the Coal Act] and the

1974 contract between union and management.”

Ibid., p. 232.

134. National Research Council, pp. 38–39 and

Figure 7, p. 59. Figure 7 shows that “productivity

(measured as output per employee-hour) dropped

substantially between 1970 and 1980.”

135. “The beginning of the downturn in mea-

sured productivity coincides with the implemen-

tation in 1970 of the Coal Mine Health and Safety

Act of 1969.” Ibid., p. 228.

136. In 1996 the rates were 7.29 for China, 0.66 for

Russia, 0.47 for India, 0.23 for South Africa, 0.23

for Poland, and 0.04 for the United States.

“Dangerous Coal Mines Take Human Toll in

China,” New York Times, June 19, 2000.

137. “During a period in 1992, from May 27 to

July 14, the coal mining industry did not experi-

ence any fatal accidents while producing many

million tons of coal—a period of rare length in

mining history.” U.S. Department of Labor,

MSHA Internet, “Injury Trends in Mining.”

138. Sider notes that trends in injuries per ton of

coal mined fell during the 1960s but rose quite

rapidly during the 1970s. Sider, p. 227.

139. “There is no discounting the fact that the

Mine Act and MSHA’s administration of the Act,

coupled with heightened operator awareness of

safety and health considerations, have served to

decrease the incidence of major mine disasters

that once plagued the American mining indus-

try.” Bruce Watemen, National Mining

Association, Testimony before the House

Oversight Hearing on the Federal Mine Safety

and Health Act of 1977, September 14, 2000,

http://edworkforce.house.gov/hearings/106th/w

p/msha91400/watzman.htm. The National

Mining Association “does not dispute the contri-

butions that the Mine Act has made to improved

miner health and safety.” “Regulatory Overhaul

and Cooperation Necessary for Industry, Says

NMA,” MSHN 2 (November 17, 1995): 618. But

according to Metzgar, “The combination of the

bias of the Act against operators and unenlight-

ened enforcement have potholed the road to

progress.” Metzgar, ”The Map and the Territory,”

p. 295.

140. Senate Record Vote Analysis, Vote no. 307,

104th Cong., 1st sess., Regulatory Reform/OSHA

and MSHA Exemption, S-99970 Temp. Record, July

14, 1995, www.senate.gov/~rpc/rva/1041/

1041307.pdf.

141. “There are good reasons to believe that OSHA

has had only a limited effect on the number of

industrial accidents and illnesses. Several econo-

mists have suggested that OSHA may not be

responsible for even the decrease in accidents that

has occurred. Worse, there are some indications

that workplaces are actually less safe today than

they were a few years ago.” McGarity and Shapiro,

pp. 10–11. But Braithwaite says that “it is beyond

dispute that, if there were 100 percent compliance

with mine safety laws, the majority of miners who

die in coal mines would be saved.” Braithwaite, p.

75. And the National Research Council asserts that

“enforcement of safety regulations and continuing

improvement of safety regulations are a necessary

part of the overall foundation of a national com-

mitment to improved underground coal mine safe-

ty.” National Research Council, p. 18.

142. Sider found “a small and statistically

insignificant negative decline in accidents during

1970–1976” following passage of the Coal Act.

Sider, p. 231 n. 16.

143. Mendeloff, p. 154.

144. “ALJ Dismisses MSHA Charges in Fatal Rail

Accident Case,” MSHN 8 (February 2, 2001): 66.

145. “Reflective Clothing Might Have Saved Prep

Plant Worker’s Life,” MSHN 7 (April 28, 2000):

197; and “Barrick Goldstrike Not Charged in

Employee Fatality from Fire,” MSHN 1

(September 23, 1994): 483.

146. See 30 C.F.R. 56/57.11001 (“A safe means of

access shall be provided and maintained to all work-

ing places.”); 30 C.F.R. 56/57.3200 (“Ground condi-

tions that create a hazard shall be taken down or

supported before other work or travel is permitted in

the affected area.”); 30 C.F.R. 56/57.12030 (“When a

potentially dangerous condition is found it shall be

corrected before equipment or wiring is energized.”);

and 30 C.F.R. 56/57.14100 (“Defects on any equip-

ment, machinery, and tools that affect safety shall be

corrected in a timely manner to prevent the creation

of a hazard to persons.”).

147. See, for example, Alabama by Products, 4

FMSHRC 2128, 2130 (December 1982)

(“Broadness is not always a fatal defect in a safety

and health standard. Many standards must be

‘simple and brief in order to be broadly adaptable

to myriad circumstances.’”).

148. The advantage of safety performance stan-

dards is that they permit the operator to select the

least costly means of compliance. Viscusi, Risk by

Choice, p. 131. “While some MSHA regulations are

prescriptive, the majority are performance-orient-

ed, which gives mine operators necessary and

desired compliance discretion.” National Stone

Sand & Gravel Association, Policy Papers, MSHA

Enforcement, www.nssga.org/publicpolicy/policy

papers.htm.

149. The 1977 Congress specifically rejected a

general duty clause because it “did not want such

a vague and general duty clause to possibly

become an inspector’s vehicle for harassing and

unjustifiably intimidating well-intentioned coal

operators.” Congressional Record, October 27, 1977,

pp. 11662–68.

150. See, for example, 30 C.F.R. 75.312, 75.332,

75.342, 75.350, 75.360, 75.364, 75.380, 75.503,

75.701, 75.804, 75.900, 75.901, 75.1002, 75.1100-

2, 75.1700, 75.1710-1, 75.1711-1, 75.1726,

75.1905, 77.214(a).

151. See 30 U.S.C. 811(c). “Leer criticized MSHA for

not approving new technologies that the industry

wished to introduce into the mines. ‘In the case of

proven technologies, such as continuous methane

monitoring and enclosed helmets which provide

purer air in intermittently dusty conditions, there

is no justification for retaining current procedural

hurdles to their use.’” “Mine Act, MSHA Changes

Are Needed, Arch Mineral’s President Tells

Institute,” MSHN2 (September 8, 1995): 485.

152. See generally 30 C.F.R. part 44, subpart B.

153. See, for example, Mettiki Coal, 1999-MSA-6 (ALJ

April 7, 2000) (two years); Freeman United Coal Mining

Co., 1998-MSA-10 (ALJ December 15, 1998) (more

than a year); and Consolidation Coal Company, 1993-

MSA-4 (ALJ April 22, 1994) (two years).

154. See, for example, International Uranium

Corporation, 1999-MSA-0003, -0004, -0009 (ALJ

March 2, 2000) (appeals of petition denials by

MSHA withdrawn due to mine closure); LEECO, Inc.,

1999-MSA-7 (ALJ December 1, 1999) (appeal of peti-

tion denied by MSHA withdrawn); and Rochester and

Pittsburgh Coal Company, 91-MSA-1 (ALJ August 12,

1994) (appeal of petition denied by MSHA with-

drawn due to mine ceasing production).

155. McGarity and Shapiro concede that “tech-

nology-based standards are not likely to induce

highly innovative changes in health and safety

technologies.” McGarity and Shapiro, p. 296. But

McAteer claims, “Technological advances—driven

in part, by the law—have reduced miners’ exposure

to some risks” McAteer, Statement of August 9,

1995, p. 7. Emphasis added.

156. See, for example, “Miner Was Warned Twice

in One Month about Going under Unsupported

Roof,” MSHN 1 (October 21, 1994): 532.

157. For a discussion of behavior-based safety the-

ory, see Steve Minshall, “An Opportunity to Get

Ahead of the Accident Curve,” MSHN 4 (May 2,

1997): 268.

158. “Current MSHA thinking would have you

believe that the worker has no role in the fatality

problem but that regulated training of the worker

is the complete solution to the fatality problem.

What a delicious bit of sophistry for seizing the

opportunity to inflict further enforcement where

there has not been a demonstrated success.”

Metzgar, “The Map and the Territory,” pp. 296–97.

159. “The safety program at a small mine is often

geared heavily towards regulatory compliance.”

Brooks, p. 454.

160. S.R. 95-181, reprint, p. 606 (“If the purposes

of this legislation are to be achieved, the effort

must be a joint one, involving the miner and his

representative as well as the operator.”).

161. Ibid.

162. 30 U.S.C. 801(e) (“The operators of such

mines with the assistance of the miners have the

primary responsibility to prevent the existence of

such conditions and practices in such mines.”).

163 Mine Safety and Health Administration, Office

of Assessments, Average Special Assessments,

www.msha.gov/PROGRAMS/ASSESS/Outreach20

01_files/frame.htm.

164. It should be noted that, among other things,

sec. 105(c) of the Mine Act protects employees who

report hazardous conditions to MSHA from adverse

actions, such as loss of job, and sec. 103(g) of the act

specifically authorizes miners to request inspections.

30 U.S.C. 815(c), 813(g). MSHA has a toll-free num-

ber and encourages miners to report hazards. See

U.S. Department of Labor, MSHA Internet, MSHA’s

Code-A-Phone, www.msha.gov/codeaphone/codea

phone.htm. Although a discussion of the merits of

the Mine Act’s whistleblower provisions is beyond

the scope of this paper, it is worth noting that even

though the employee initiates the process, he is still

relying on the federal government to address his

safety concerns. The obvious problems with this

approach are that (1) it can be ineffectual, (2) it can

be abused, and (3) it can be detrimental to the reso-

lution of safety issues by miners and mine operators.

165. 30 U.S.C. 813(a).

166. “Proposed Bill Would Endanger Miners,

Mine Safety Chief Says,” MSHA News release 95-

022, June 19, 1995.

167. Cyprus Cumberland Resources v. Secretary of

Labor, 20 FMSHRC 285, 288 (March 19, 1998)

(“These inspectors spend between 3 and 5 days a

week at the Cumberland Mine and normally take

the full quarter to complete the inspection. Thus,

in essence, there is a continuous presence at the

Cyprus’ Cumberland facility of at least two

MSHA inspectors who are performing quarterly

inspections. These two inspectors are assisted by

other inspectors from the Waynesburg field

office, which has two supervisors and approxi-

mately 15 inspectors. In addition, MSHA District

2 Office personnel may also inspect the mine site

during a given quarter. Therefore, there may be as

many as 6 or 7 inspectors at the site on any par-

ticular day.”).

168. McAteer, Statement of August 9, 1995, p. 12.

169. “Obviously, around-the-clock inspector pres-

ence is neither possible nor desirable.” Ibid.

170. “Former MSHA Inspector to Be Sentenced

May 14,” MSHN 3 (March 22, 1996)(bribery):

“Former Inspector Gets 18 Months,” MSHN 3

(May 31, 1996): 290(bribery); “Guilty Plea Replaces

Bribery Trial for Former MSHA Employee,” MSHN

2 (August 25, 1995): 448; “Conspiracy Charge Nets

Six Month Prison Term for Former MSHA

Inspector,” MSHN 2 (June 16, 1995): 324 (bribery);

“Mine Superintendent Says Bribing Inspectors Is a

Long-Time Practice,” MSHN 2 (June 2, 1995): 301;

“Trial Date Set for MSHA Inspector,” MSHN 2

(May 19, 1995): 281 (bribery); and “Fourth MSHA

Inspector Enters Guilty Plea,” MSHN 2 (March 24,

1995): 159 (bribery).

171. “After the accident, MSHA transferred Kirk to

its Denver office where his salary was raised $2,659

per year to $78,179.” Craig Harris, “Mining Official

Concedes Errors, Safety Complaints Had Been

Ignored,” Arizona Republic , August 9, 2000.

172. See, for example, “Inspector General’s Office

Targets MSHA, OSHA in Second Asbestos

Probe,” MSHN 7 (September 1, 2000): 364;

“Former MSHA Inspector Admits Falsifying

Reports; Other Charges Dropped,” MSHN2 (June

1, 1995): 324; and “Another Special Investigator

Fired, But One Gets Job Back,” MSHN 3 (October

4, 1996): 538.

173. “One example of these difficulties stems from

the assignment to precious metals operations of

MSHA inspectors who have little or no experience

with the new technology developed in recent years

by the gold mining industry. In other cases, MSHA

has sent inspectors to Western gold mining opera-

tions from coal mining areas in the eastern part of

the country. These MSHA inspectors often lack

even the most basic familiarity with and training in

modern gold extraction techniques.” William G.

Miles, director of loss control, Newmont Gold

Company, Elko, Nevada, Testimony at Hearing on

the Federal Mine Safety and Health Act of 1977

before the Subcommittee on Workforce

Protections of the House Committee on Education

and the Workforce, July 30, 1998, http://edwork

force.house.gov/hearings/105th/wp/msha73098/

miles.htm. See also “Coal ‘Loans’ Inspectors for FY

1998,” MSHN 5 (March 20, 1998): 137.

174. Rawl Sales & Processing Co., 23 FMSHRC 463,

466 (May 2001) (“Since I cannot discern what min-

ing danger threatens miners at home in their beds,

I will not support the Secretary’s gratuitous

demand that Rawl order miners underground for

several hours, who would otherwise be at home, to

conduct an ‘on-shift’ examination to protect

nobody from anything.”) (Commissioner Riley,

writing separately).

175. “He was just like hundreds of thousands of

other blue-collar workers. He never considered

himself exceptional. He was ‘just one of the boys.’

Charlie had more than 15 years experience on the

job, and he knew it well. He knew all the rules. He

knew all the safety regulations . . . and he knew all

the shortcuts around them too.” Phoenix Safety

Management Inc., Charlie’s [Morecraft] Story,

www.charlieonsafety.com/index.html.

176 Venita Branham, coal miner, “Mine Health

and Safety Protection: A Miner’s Views of Dying

Industry,” MSHN (February 9, 1996): 73.

177. Sheperd, p. 363.

178. See, for example, Fleming v. United States, No.

2:98-00215 (WV 1999); Ferguson v. United States,

No. 4:91-CV-83-M (KY 1996); Deel v. United States,

No. 94-0166-A (WV 1996); Estate of Denny

Bernaldes v. United States, No. 95-1905 (4th Cir.

1996); Lanny Belcher v. United States, No. 94-0240-B

(VA 1993); and Meyers v. United States, No. 95-5812

(6th Cir. 1994).

179. “Elkins, Brooks Sentencing Wraps Up

Government Case in Southmountain,” MSHN 2

(September 22, 1995): 506; “Smoking Materials, Not

Equipment Caused Day Branch Explosion,” MSHN

2 (July 14, 1995): 388; and “Butane Lighter and Lack

of Stoppings Led to A.A. & W. Explosion,” MSHN 2

(January 13, 1995): 16.

180. 30 U.S.C. 815(b)(1)(B), 820(i).

181. Mine Safety and Health Administration, Office

of Assessments, Average Regular Assessments,

www.msha.gov/PROGRAMS/ASSESS/Outreach20

01_files/frame.htm.

182. 30 C.F.R. 100.4 (establishing mandatory

minimum of $55 for non-significant-and-sub-

stantial violations that are abated in good faith).

183. “The ineffectiveness of fines as sanctions

against coal mining companies in the United States

is clear.” Braithwaite, p. 89. See also Lee Ann Benson,

“The Most Precious Product of A Mine,” Southeast

Ohio Magazine, Fall 1982, www.ohiou.edu/southeast

ohio/marchives/archivef1.html. “Many observers,

however, have expressed skepticism about OSHA’s

deterrent force.” Mendeloff, p. 87.

184. February 21, 2001, facsimile response from

MSHA to Freedom of Information Act request.

185. Viscusi estimated that compensating wage

differentials for all industries were near $70 bil-

lion in 1983. Viscusi, Risk by Choice, p. 3.

186. Mendeloff notes that the small size of the

deterrent may nevertheless generate substantial

compliance activity. Mendeloff, p. 93. But Viscusi

points out that an agency’s impact on safety and

health is a separate question from an agency’s

impact on an industry. Viscusi, Risk by Choice, p. 33.

187. After an explosion at Kaiser’s alumina facili-

ty that injured 29 employees, Kaiser paid

$513,000 to MSHA in fines but had to spend

$275 million to rebuild the plant. John Stucke,

“Kaiser Powers Up Gramercy Facility,” United

Steelworkers of America Local 329 Internet,

December 2000, www.uswa329.org/December_

2000/dec15b.htm.

188. See, for example, U.S. Department of Labor,

MSHA, “Magma Copper Co., Contractor Fined

over $2 Million in Mine Deaths,” MSHA press

release 94.387, August 5, 1994.

189. Mine Safety and Health Administration, Office

of Assessments, Average Special Assessments,

www.msha.gov/PROGRAMS/ASSESS/Outreach

2001_files/frame.htm.

190. For a discussion of injury taxes, see Mendeloff,

pp. 25–31.

191. Sunny Ridge Mining Company Inc., 19

FMSHRC 254, 276 (February, 1997) (“I am trou-

bled by the indecipherable criteria used to calcu-

late the appropriate sanction. The judge’s penalty

assessment is not based on any discernable math-

ematical formula nor supported by any compre-

hensible legal rationale and is therefore unreview-

able.”) (Commissioner Riley dissenting).

192. “There were no violations found in a recent

haulage accident.” “Reflective Clothing Might

Have Saved Prep Plant Worker’s Life,” p. 197; see

also “Barrick Goldstrike Not Charged in Employee

Fatality from Fire,” MSHN 1 (September 23, 1994):

483.

193. “The [administrative law judge] declined to

use the agency’s special assessment as a ‘guide-

line,’ because MSHA refused to explain its special

penalty assessment process. However, in its peti-

tion, the agency said it was improper for the ALJ

‘to coerce an inquiry into [MSHA’s] decision-

making process’ and added that an ALJ ‘has no

need to inquire into how, why, or by whom

[MSHA’s] penalty decision was made.’” “Trucking

Company Penalty before FMSHRC for Third

Time,” MSHN 9 (February 18, 2002): 75.

194. “The agency had initially proposed penalties

totaling $700,000 against Dynatec arising from a

fatal accident and has ended up accepting a

$20,000 penalty for a violation of the safe access

rule resulting from ‘moderate negligence.’”

“Dynatec, MSHA Settle Litigation Arising from

Fatal Chute Collapse,” MSHN 8 (December 10,

2001): 532.

195. “Interview of Davitt McAteer by Mine Safety

and Health News,” MSHN1 (February 11, 1994): 62.

196. Jerry Davidson, “Prince of Pork Grabs

Colorado Jobs,” MSHN 3 (August 9, 1996): 453;

and “GAO Asked to Investigate Denver Move:

Reich Told to Put Move on Hold,” MSHN 3

(September 20, 1996): 511.

197. “This technical assistance should be furnished

by a part of the agency outside the normal inspec-

tion and enforcement operations of MSHA.”

National Research Council, p. 19. Cf. “MSHA has

little or no interest in injury prevention. It is inter-

ested in enforcement and punishing operators. . . .

The statistical branch has to be separated from the

enforcement scheme.” Metzgar, “Politics and the

MSHA Statistics,” p. 328.

198. J. Davitt McAteer, “Remarks before the Eastern

Mine Law Foundation Special Institute,

Washington, D.C.,” MSHN1 (March 25, 1994): 145.

199. Attorneys warned mine operators about

MSHA’s police powers. See, for example, Michael

Heenan, Heenan, Althen & Roles, “Document

Requests by MSHA: Pitfalls for Operators,”

MSHN 3 (March 8, 1996): 119; Greg Ruffennach,

“Mine Accident Investigations: What Every

Operator Should Know,” MSHN 3 (June 1996):

356; and “What You Say Can and Will Be Used

against You, Attorney Warns Supervisors,” MSHN

2 (September 22, 1995): 510.

200. “Continued endorsement of the misguided

policies . . ., combined with selected zealous

enforcement indicates a continuance of an unrea-

sonably confrontational atmosphere.” Bobby

Jackson, “McAteer’s MSHA at the Mid-Term,”

MSHN 1 (September 9, 1994): 456. The Mine Act

“begs adversarial relationships between affected

parties.” Ford B. Ford, “Differences Can Be

Resolved at Mine; Leave Big Issues for the Court,”

MSHN 1 (April 8, 1994): 169.

201. “The threat of punishment can have a chilling

effect on the information-gathering process.”

Braithwaite, p. 99. “The insensitive, invective

enforcement of the laws and the creative develop-

ment of a legal theory to sustain a citation and

punish at all costs has dried up the very informa-

tion that would help prevent injuries.” Metzgar,

“Politics and the MSHA Statistics,” p. 331. See also

“Industry Calls for Cooperation at Congressional

Hearing,” MSHN 7 (September 15, 2000): 391.

202. “When there is a willingness to do the right

thing, across-the-board punishment is simply not

the best strategy for maximizing compliance . . .

this is the very mistake that the U.S. Mine Safety

and Health Act perpetuates.” Braithwaite, p. 99.

“An inappropriate focus on blame forces people to

be apprehensive and defensive.” Lauriski, p. 387.

203. “McAteer Says MSHA, Industry Can’t Rest

until Accidents Are Brought Down,” MSHN 3

(May 31, 1996): 296.

204. “Lauriski Open to New Ideas to Decrease

Fatalities and Accidents,” MSHN 8 (July 6, 2001): 307.

205. Number of U.S. coal fatalities plus number of

U.S. metal/nonmetal fatalities. Coal fatalities from

U.S. Department of Labor, MSHA Internet, Coal

Fatalities for 1900 through 2001, www.msha.gov/

centurystats/coalstats.htm; metal/nonmetal fatali-

ties from U.S. Department of Labor, MSHA

Internet, Metal/Nonmetal Fatalities 1900 [1911]

through 2001, www.msha.gov/centurystats/mnm

stats.htm.

206. “I do not believe the maxim that says all

injuries are preventable.” Minshall, p. 269. But see

“Mining Deaths Drop Overall in 2000,” MSHA

News release. 2001-0104, January 4, 2001.

207. U.S. Department of Labor, Department of

Labor Budget Overview 2002, www.dol.gov/_sec/

Budget2002/budgetfy2002.htm#msha.

208. Ibid.; compare Contractor’s Sand & Gravel Inc. v.

FMSHRC, 199 F.3d 1335 (D.C. Cir. 2000) (January

2000) (MSHA technical support personnel used as

expert witnesses to support MSHA’s enforcement

position); Dynatec Mining Corporation, 20 FMSHRC

1058 (September 1998) aff’d in part rev’d in part

23 FMSHRC (January 2001) (same).

209. Federal Mine Safety and Health Review

Commission, Fiscal Year 2001 GPRA Annual

Performance Plan and Fiscal Year 1999 Annual

Program Report, www.fmshrc.gov/plans/2002gpra.

html.

210. In FY 2000, $246 million was budgeted; there

were 20,000 inspections. U.S. Department of

Labor, MSHA, MSHA’s Statutory Functions,

www.msha.gov/MSHAINFO/MSHAINF1.HTM.

211. In FY01, $246 million was budgeted and

there were 132,000 assessed violations. U.S.

Department of Labor, Department of Labor

Budget Overview 2002

212. Ibid; U.S. Department of Labor, MSHA

Internet, Metal/Nonmetal Fatalities 1900 to

2001; and U.S. Department of Labor, MSHA

Internet, Coal Fatalities 1900 to 2001 ($246 mil-

lion budget, 350,413 miners in FY01).

213. Mendeloff notes, “The budget of the public

safety agency constitutes a small part of the

resources used in the effort to prevent injuries.

The largest component of these social costs is the

compliance costs incurred by employers.”

Mendeloff, p. 123. “MSHA estimates that the

yearly compliance costs (annualized costs plus

annual costs) resulting from the final rules will be

approximately $17.94 million, of which about

$16.55 million will be borne by the affected non-

metal mine operators.” Final Regulatory

Economic Analysis and Regulatory Flexibility

Analysis for the Final Rule on Training and

Retraining of Miners Engaged in Shell Dredging

or Employed at Sand, Gravel, Surface Stone,

Surface Clay, Colloidal Phosphate, or Surface

Limestone Mines, September, 1999,

www.msha.gov/ REGS/FLEX/99-25273.pdf.

214. Melinda Pon, chairman, NMA’s Occupational

Health Subcommittee, quoted in “Regulatory

Overhaul and Cooperation Necessary for Industry,

Says NMA,” MSHN 2 (November 17, 1995): 619.

215. “The impact of this sort of presence cannot

be ignored because it also means that hourly

employees and management employees are taken

away from their normal duties every day to

accompany the inspectors. . . . Present inspection

procedures are disruptive and time-consuming.”

Wateman.

216. 30 C.F.R. 77.701; and San Juan Coal Company, 13

FMSHRC 1688, 1692-1700 (October 21, 1991) (cita-

tions vacated after trial).

217. Federal Mine Safety and Health Review

Commission.

218. “[A]fter three years and nearly a million dol-

lars in legal defense fees, MSHA’s unjustified pol-

icy change remains pending before the MSHA

Review Commission.” Miles.

219. S.R. 95-181, reprint, pp. 632–33 (“the need to

save litigation and collection expenses should play

no role in determining settlement amounts”); see,

for example, Contractor’s Sand & Gravel Inc. v.

FMSHRC, 199 F.3d 1335 (D.C. Cir. 2000) (January

2000)(MSHA paid more than $100,000 to cover the

mine operator’s attorney fees pursuant to the Equal

Access to Justice Act.).

220. “The net result is an enormous drain on the

resources of the agency for the imposition of what

are puny fines.” Braithwaite, p. 111.

221. Executive Order no. 12866, 58 FR 51735,

1993 WL 388305 (President Clinton) (requiring a

Regulatory Economic Analysis for any rule having

major economic consequences); see, for example,

Final Regulatory Economic Analysis and

Regulatory Flexibility Analysis for the Final Rule

on Training and Retraining of Miners Engaged in

Shell Dredging or Employed at Sand, Gravel,

Surface Stone, Surface Clay, Colloidal Phosphate,

or Surface Limestone Mines.

222. Joseph M. Johnson, “A Review and Synthesis

of the Cost of Workplace Regulation,” George

Mason University, Mercatus Center, August 30,

2001, p. 21, www.mercatus.org/ Workplace.pdf.

223. Ibid. Compare S.R. 195-181, reprint, p. 645

(the 1977 Congress operated under the assump-

tion that it would cost the mining industry $69.15

million per year [1977 dollars] to comply with the

Mine Act). But see also Senator Schmitt stating

that there was not agreement regarding the “accu-

racy” of the estimate. “Floor Debate on Federal

Mine Safety and Health Act of 1977,” Congressional

Record, June 20, 1977, pp. 10203-38.

224. For total contractor and operator NFDL

injuries for both coal and metal/nonmetal, see U.S.

Department of Labor, MSHA Internet, Mining

Industry, Accident, Injury and Employment

Statistics, www.msha.gov/ACCINJ/accinj.htm.

225. “Each time I approve a major fine against a

company—for safety violations that were discov-

ered after an accident that cost the life of an

employee—I can’t help but feel a twinge that if we

had just worked harder on prevention, we wouldn’t

be in the impossible position of trying to calculate

the value of a lost human life.” Elaine L. Chao, sec-

retary of labor, Remarks at Welcoming Ceremony,

U.S. Department of Labor Francis Perkins

Building, March 6, 2001, www.dol.gov/_sec/med

ia/speeches/000306chao.htm.

226. For example, “The Agency does not have much

experience in quantifying benefits in the case of a

proposed health standard. . . .” Department of

Labor, MSHA, Proposed Rule, Preliminary Regula-

tory Economic Analysis Health Standards for Diesel

Particulate Concerning: 30 CFR, parts 70 and 75,

Underground Coal Mines, March 1998, www.msha.

gov/REGS/FLEX/PARTIC.HTM#03.

227. For a discussion of various valuation meth-

ods, see McGarity and Shapiro, pp. 270–72.

228. McGarity and Shapiro specifically refer to

health regulations. Ibid., p. 297.

229. “What worries me is that we are becoming an

uncaring nation. We are making lack of compas-

sion acceptable in this country. I just cannot sit

up there and diminish safety of the workplace.”

Rep. Frank Mascara (D-Pa.), quoted in “Ballenger

Unclear on Some of His Own Bill’s Regulatory

Provisions,” MSHN2 (July 28, 1995): 415.

230. McGarity and Shapiro, p. 278.

231. Ibid., p. 295.

232. “There are good reasons why OSHA should

not be restricted by a cost-benefit test, the most

important of which may be that cost-benefit

analysis ignores the distributional consequences

of regulatory policy.” Ibid., p. 294.

233. Sowell, p. 10.

234. “Truck drivers have more work-related fatalities

than any other occupation, accounting for 14% of all

job-related fatalities in 1988.” Peggy Suarez, “The

Unforgiving Road: Trucker Fatali-ties,

Compensation and Working Conditions,” Bureau

of Labor Statistics, Winter 1999, www.bls.

gov/opub/cwc/1999/Winter/art4full.pdf. Fatali-ties

per 100,000 workers (based on Occupational

Classification System) in 1998 were as follows: tim-

ber cutters, 141.6; fishers, 137.3; structural metal

workers, 82.5; aircraft pilots, 80.5; extractive occupa-

tions, 48.0; truck drivers, 29.2.

235. For unintentional injuries to persons aged 1–14

years, see Centers for Disease Control, National

Center for Injury Prevention and Control Home

Page, www.webapp.cdc.gov/ sasweb/ncipc/mor

trate.html.

236. “The simplest accurate statement about the

beneficiaries of OSHA’s programs is that they are

overwhelmingly blue collar workers, mostly

unionized, and mostly men. Support for OSHA

based on a concern with income distribution and

improving the lot of the least fortunate does not

seem well grounded.” Mendeloff, p. 35.

237. “Few people think about using up society’s

resources; they ask who will pay.” Ibid., p. 31.

238. 30 U.S.C. 801(e), (d).

239. Mendeloff notes “the strong likelihood that

least some and perhaps all of the added costs will

be passed on to consumers.” Mendeloff, p. 57.

“We have seen that in the United States, fines are

. . . generally passed on in higher energy costs to

the community as a de facto royalty on the cost of

each ton of coal.” Braithwaite, p. 165.

240. National Mining Association, “Facts about

Mining,” www.nma.org/fastfacts.html.

241. “MSHA Questioned about Possible

Lobbying Efforts by Career Employees,” MSHN2

(June 30, 1995): 359; but see “Hugler, Other

MSHA Employees Cleared of Charges of Illegal

Lobbying,” MSHN2 (December 1, 1995): 647.

242. “The average grade and salary of a mine

inspector is GS 12/5, at $58,031 per annum or $28

($27.90) per hour.” U.S. Department of Labor,

MSHA Internet, 1219-0103 Supporting Statement,

www.msha.gov/regs/fedreg/paperwork/2000/00-

8243.htm.

243. MSHS employees represent 2,310 full-time

equivalents. U.S. Department of Labor, Department

of Labor Budget Overview 2002.

244. Davidson, p. 453; and “GAO Asked to

Investigate Denver Move.”

245. “Unions Denounce Ballenger Bill in ‘Seven

Days for Safe Jobs’ Protests.” A UMTA leader has

stated that “without it [i.e., the Mine Act] there’s

no reason to believe that the mining industry

won’t revert back to the bad old days when it was

common for miners to pay for their jobs with

their lives.” “Assaults on MSHA Play Fast and

Loose with Miners’ Lives,” MSHN 2 (May 19,

1995): 286

246. Richard Trumka, quoted in “Ballenger

Unclear on Some of His Own Bill’s Regulatory

Provisions.”

247. Bastiat, p. 8.

248. “[T]he appeal of federal action to union lead-

ers was that it offered a way to bypass the union’s

weak position on these issues in collective bar-

gaining.” Mendeloff, p. 16.

249. Compare “UMWA Call for MSHA

Investigation into Massey Energy’s Health and

Safety Record,” MSHN 8 (July 20, 2001): 334, with

“UMWA Miners Renew Campaign against

Massey Energy,” MSHN 8 (May 25, 2001): 244.

250. Brooks, p. 454.

251. “The Kentucky Coal Assn., Coal Operators and

Associates (Ky.), Lignite Energy Council (N.D.),

Pennsylvania Coal Assn., Texas Mining &

Reclamation Assn., West Virginia Mining and

Reclamation Assn., West Virginia Coal Assn.,

Alabama Coal Assn., Indiana Coal Council, Coal

Producers Committee of Assn. of Oklahoma

General Contractors and the Ohio Mining and

Reclamation Assn . . . stated that the ‘federal govern-

ment has gotten too large and too intrusive in our

day-to-day affairs’ and that MSHA ‘is a clear case in

point.’” “Support for Ballenger Bill Keeps Growing

As Groups Rally for MSHA Overhaul,” MSHN 2

(November 17, 1995): 620.

252. “The American Iron Ore Assn., American

Portland Cement Alliance, Institute of Makers of

Explosives, National Aggregates Assn., National

Industrial Sand Assn., National Mining Assn.,

National Stone Assn., and the Sorptive Mineral

Institute . . . state that they support making MSHA

and OSHA ‘more helpful and effective and less puni-

tive.’” “BCOA Silent on H.R. 1834 Position; Other

Groups Go on Record,” MSHN2 (October 20, 1995):

554. “The National Stone Assn. said while it endors-

es the Ballinger bill, it wants to see its own provisions

included, and the group said it will follow the bill

through the mark-up process to determine whether

continued support of the legislation is appropriate.

The NSA has recommended 13 changes to the bill.”

“Support for Ballenger Bill Keeps Growing As

Groups Rally for MSHA Overhaul,” p. 620.

253. “While staff of the National Mining Assn.

have been meeting with members of the Heritage

Foundation and discussing the possibility of

merging MSHA and OSHA, NMA President

Richard Lawson said the association does not

support any merger of the two agencies at this

time.” “Mining Association Not Supporting

MSHA/OSHA Merger at This Time,” MSHN 2

(February 24, 1995): 111.

254. “The U.S. mining industry is subject to one of

the most burdensome mine safety laws in the

world. As a consequence, our mining is at a com-

petitive disadvantage with foreign operators that

are not subject to command and control health

and safety standards.” Melinda Pon, quoted in

“Regulatory Overhaul and Cooperation Necessary

for Industry, Says NMA,” MSHN 2 (November 17,

1995): 618.

255. “One NMA staffer said that the association’s

position never changed. That the Ballenger bill is

a start for reform but a repeal of the Mine Act is

not appropriate.” “NMA Swings into Action for

MSHA Reform; Some Members Unhappy with

Campaign,” MSHN2 (September 22, 1995): 511.

256. “The seven groups do not oppose an

MSHA/OSHA merger and should a merger take

place, they want mining regulations separate from

general industry OSHA regulations. They would

like to see a separate office for mine safety and

health in OSHA with employees having significant

mine-related experience and training.” “BCOA

Silent on H.R. 1834 Position; Other Groups Go on

Record.” “Like the coal industry groups, NSA sup-

ports a separate mine division of OSHA, but also

wants language whereby there will be a separate

coal division and metal/nonmetal mining divi-

sion.” “Support for Ballenger Bill Keeps Growing

As Groups Rally for MSHA Overhaul.”

257. “A third NMA member said ‘the system

works.’” “NMA Swings into Action for MSHA

Reform,” p. 511.

258. “On its face the [BCOA] ‘position paper’ seems

to take a position, without taking a position.”

“UMW Vice President for Health and Safety Joe

Main said . . . the BCOA position that was represent-

ed to us was one of non-support for the Ballenger

legislation and one of addressing reforms through

the administrative versus legislative process.”

“BCOA Silent on H.R. 1834 Position,” p. 555.

259. “Responsible, health and safety conscious

operators will be forced out of business by price

competition from undercapitalized, irresponsible

operators who will sacrifice the health and safety

of their workers in order to cut their production

costs. . . . Substantial penalties should be applied

regardless of the mine capitalization choices

made by that operator.” Representative of

Westmoreland Coal Company, quoted in

“Westmoreland, American Electric Power

Support MSHA in Letters to Congress,” MSHN2

(June 30, 1995): 360. “National Mining Assn.

President Richard Lawson . . . said that NMA wor-

ries that merging the two agencies could reduce

inspection and enforcement activities, allowing

for the proliferation of fly-by-night operators who

don’t invest in worker safety and health.”

“Ballenger Unclear on Some of His Own Bill’s

Regulatory Provisions,” p. 415.

260. Brooks, p. 454.

261. Because work-related accidents are an eco-

nomic bad, reallocating inputs from output-pro-

ducing to accident-reducing activity does not nec-

essarily decrease and may actually increase total

marketable output. Sider, pp. 225–27. “The bot-

tom line is that to remain competitive, safety and

health must be a company value.” Carlson, p. 51.

262. “NMA Accuses National Safety Council of

Not Reaching Consensus on H.R. 1834,” MSHN2

(December 1, 1995): 646.

263. Ibid.

264. Ibid.

265. “The safety director felt that ‘in a direct way

OSHA hasn’t done anything to improve our safe-

ty record—we already had a first-rate program—

but it helped me . . . if the expenditure is necessary

to comply with OSHA, I don’t need to show what

the benefits will be. If it’s just something that I

think we ought to have, then I have to review past

accidents and show how it will prevent reoccur-

rences.’” Mendeloff, p. 91.

266. Carlson, p. 51.

267. Branham, p. 73.

268. Sheperd, p. 362.

269. Branham, p. 74.

270. Ibid.

271. Sheperd, p. 361.

272. Ibid., p. 262.

273. Branham, p. 74.

274. “The scientific method and the rigor and

integrity it demands is terribly embarrassing and

inconvenient to the politician, regulator and dem-

agogue.” Metzgar, “The Map and the Territory,”

p. 294.

275. Branham, p. 73.

276. Sheperd, p. 363.

277. See generally Fishback; and Lankton.

278. Jason Schachter, “Current Population Reports,”

Geographical Mobility: Population Characteristics, March

1999 to March 2000, U.S. Bureau of the Census, May

2001, www.census.gov/prod/ 2001pubs/p20-

538.pdf.

279. Federal Reserve System, “The Exceptional

1990s,” National Economic Trends, March 2000,

www.stls.frb.org/docs/publications/net/2000/co

ver3.pdf.

280. “A Shortage of Trained Miners May Make

Bust of Possible Boom,” MSHN 8 (April 13, 2001):

176; and “Company Looking for Coal Market

Could Employ Up to 300,” MSHN 7 (September

15, 2000): 399.

281. “Since risky jobs become unattractive the

higher one’s income class, we should expect that

many of those who are most outspoken on policy

issues will consider the jobs of workers in haz-

ardous industries abhorrent.” Viscusi, Risk by

Choice, p. 80. “Without being easily able to rely on

their own personal appraisal of the risk, they are

placed in a more paternalistic position.”

Mendeloff, p. 160.

282. “There are no mines inside the Washington,

D.C. Beltway.” McAteer, “Don’t Undermine Mine

Safety.”

283. See generally Aldrich, Safety First, pp. 224–29,

237, 251–55; Whiteside, p. 204; and Lankton, pp.

93–125.

284. “It is common to hear employees at all levels

of an organization talk about their safety rules

and procedures as MSHA or OSHA mandates or

regulations. Their language implies that the

‘stuff’ that they do for safety is more for MSHA or

OSHA than for themselves.” E. Scott Geller,

“Behavior Change Tools to Achieve a Total Safety

Culture,” MSHN 2 (March 24, 1995): 164.

285. “The owners, management and miners of

this mine speak as one. Miners and management

feel MSHA has kept them off guard, that MSHA

is an agency which is actually bringing about poor

safety at the Sixteen to One because of its behav-

ior.” Original Sixteen to One Mine, Inc,

International California Mining Journal: Original

Sixteen to One Goes to Court-Challenges MSHA

Citations, May 13, 2002, www.origsix.com/

mag.asp?id=50.

286. “Efforts to promote present risk regulations

on the basis that they enhance worker rights are

certainly misguided.” Viscusi, Risk by Choice, p. 80.

“Other losers are workers who prefer facing job

hazards . . . [and] workers who have to surrender

risk premiums.” Mendeloff, pp. 32–33.

287. “Convention 176 enhances the ability of the

U.S. mining industry to compete on a more level

playing field in the global economy.” “President

Clinton Signs International Convention to Raise

Mine Safety and Health Standards Worldwide,”

MSHA News release 2001-0110, January 10, 2001.

288. Viscusi concludes, “Penalizing workers in

less-developed countries by not buying their

products will not boost their welfare.” Viscusi,

Risk by Choice, p. 52.

289. McAteer, Statement of August 9, 1995, p. 7.

290. “As Americans become wealthier, risk levels

of all kinds have declined.” Viscusi, Risk by Choice,

p. 28.

291. McGarity and Shapiro, p. 296.

292. Sowell, p. 307.

293. McAteer, Statement of August 9, 1995, pp.

3–4; see also Richard L. Trumka, president,

United Mine Workers of America, “Assaults on

MSHA Play Fast and Loose with Miner’s Lives,”

MSHN 2 (May 19, 1995): 286.

294. Viscusi, Risk by Choice, p. 168.

295. In contrast, Braithwaite contends, “The best

approach . . . would be to have a reverse sunset clause

for all deregulatory initiatives. That is, a set of regula-

tions would be placed in abeyance for, say, five years.

If during that five years, industry demonstrated good

faith in making self-regulation work, the regulatory

agency would permanently repeal the regulations; if

not, they would automatically come back into force

after the trial period.” Braithwaite, p. 124.

296. “Providing job risk information to workers

to enable them to select jobs that are appropriate

for their own risk preferences is a promising strat-

egy for augmenting market forces and promoting

outcomes that are responsive to the diversity of

attitudes towards risk.” Viscusi, Risk by Choice, p. 4.

297. The National Research Council suggests that

the government “encourage publication of annu-

al rankings of companies by injury rates.”

National Research Council, p. 15.

298. MSHA Internet, Data Retrieval System,

www.msha.gov/drs/drshome.htm.

299. “Individual facts are as important as the accu-

mulated numbers which make up the statistical

abstraction.” Metzgar, “Politics and the MSHA

Statistics,” p. 329; see also Viscusi, Risk by Choice, p.

158.

300. At present, mine operators report injuries

under existing MSHA regulations. 30 C.F.R. part 50.

Moreover, there are already strong federal laws in

place that prohibit false reporting. See, for example,

30 U.S.C. 820(f). To avoid reporting controversies

altogether, the federal government might collect

such injury information directly from the various

states’ workers’ compensation programs. Under

such a scheme, no injury would count against a

mine operator’s safety record unless an award of

medical or death benefits had been made by the

state agency. Although state workers’ compensation

programs are far from perfect and vary considerably

among the states, they do provide forums in which

mine operators can challenge the veracity and work-

place relatedness of injury claims made by employ-

ees. Placing additional significance on the findings

of the state workers’ compensation programs may

create incentives to reform and improve those pro-

grams as well.

301. “Mining Operations Recognized for

Outstanding Safety Records in 2000,” MSHN 8

(August 31, 2001): 374.

302. “Granting companies a tax credit for

approved safety expenditures might be an addi-

tional inducement for them to make the invest-

ments needed to improve safety.” National

Research Council, p. 120; for an example of a suc-

cessful incentive, see Aldrich, “Preventing ‘the

Needless Peril of the Coal Mine,’” pp. 513–14.

303. See Mendeloff, pp. 28–31.

304. 30 U.S.C. 820(c), (d).

305. Secretary of Labor v. Shirel, No. 94-1030, (D.C. Cir.

March 29, 1995), unpublished disposition reported

at 52 F.3d 1123, 1995 U.S. App. LEXIS 41129.

306. 30 U.S.C. 955(a).

307. See, for example, “Raymond Granite Co.

Settles Civil Case; D.A. Drops Criminal Charges,”

MSHN 7 (June 23, 2000): 274.

308. See, for example, “MSHA Inspectors Bar

Arizona Inspectors, Sheriff from Accident Scene

at BHP,” MSHN2 (May 2, 1997): 265.

309. 30 U.S.C. 820(c); see Roy Glen, 6 FMSHRC

1583 (July, 1984)(“Accordingly, we hold that a

corporate agent in a position to protect employee

safety and health has acted ‘knowingly’ in viola-

tion of Section 110(c) when, based on the facts

available to him, he either knew or had reason to

know that a violative condition or conduct would

occur, but he failed to take appropriate preventa-

tive steps.”).

310. David Hawpe, “What about a Miner’s

Expectation of Living?” MSHN 8 (February 16,

2001): 88. See also “Mine Foreman Gets Light

Sentence for Smoking, Ventilation Violations,”

MSHN3 (October 18, 1996): 562; and Braithwaite,

p. 152.

311. “A federal judge ordered prison time for two

brothers who operated a Wyoming County, W.Va.,

coal mine in violation of mine safety laws, leading

to the death of an employee in 1992. . . . The court-

room was half-filled May 14 with family and

friends of the Addairs, may of whom wrote letters

to the court asking for leniency and citing the

brothers’ involvement in their respective commu-

nities.” “Judge Criticizes ‘Cavalier Attitude’ of

Brothers She Sentenced to Jail,” MSHN 4 (May 31,

1997): 285. “In small mining communities it is

hard for city dwellers to imagine the stigma that

attaches to those perceived as responsible for disas-

ters.” Braithwaite, p. 140.

312. Johnson, p. 21.

313. McAteer, “Farmington Victims Left Legacy

to Nation’s Miners.”

314. “McAteer Says MSHA, Industry Can’t Rest

until Accidents Are Brought Down,” p. 295.

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