POLITICS
07/07/2010 05:12 am ET | Updated May 25, 2011

Gulf Oil Rig Disaster And Mine Explosion Highlight Weak Safety Regulations

"I have here before me a pile of news clips collected over the last couple of weeks describing workers, men and women, young and old who have been crushed, electrocuted, burned, or who have died in falls, trench collapses and forklift accidents. These are the invisible relentless daily tragedies of the American workplace." -- OSHA Administrator David Michaels, April 27

Coal miners and oil drillers may not have been on T.S. Eliot's mind when he penned "The Wasteland," but April was surely the cruelest month for those who work in two of the most dangerous jobs in America. Last month saw the two biggest disasters in those industries in decades, with 29 miners dying in the Upper Big Branch mine explosion on April 5 and 11 workers killed in the oil rig explosion in the Gulf of Mexico on April 20.

In the wake of the tragedies, headlines have been dominated by searing accounts of these workers' last moments, lawmakers are demanding investigations and the public is looking for heads to roll at the mining conglomerate, Massey Energy, and the oil giant BP.

In addition, many have blamed the government agencies that are supposed to regulate these industries for letting the companies get away with safety violations and for not mandating better safety procedures.

On a larger scale, these tragic accidents reflect the failure of our regulatory system to protect worker safety and health, according to safety experts and former regulators.

In the face of a corporate backlash and lack of media coverage, the current system has been progressively weakened over the last few decades and safety advocates fear that the Obama administration is not doing enough to strengthen such protections.

Since it was established almost 40 years ago, the Occupational Safety and Health Administration, which guarantees every American a safe and healthful working environment, has had an immeasurable impact -- the job fatality rate has fallen 80 percent since 1970 and injury rates have also fallen dramatically.

But many workers are still killed on the job -- 5,214 died in 2008, which doesn't count the number who died from occupational diseases -- and the agency has been blamed for failing to keep up with the times. Safety standards for some serious hazards -- such as exposure to toxic chemicals -- have not been updated since 1971. In addition, the understaffed agency only has 2,218 inspectors for over 130 million workers in the country.

"The safety and health prevention system for workers is a dinosaur," says Celeste Monforton, Assistant Research Professor at GWU School of Public Health. "It hasn't been updated in 40 years. There is a very strong anti-regulatory bent in this country, and when these types of tragedies take place, people say, "How could this happen?" People don't realize that without safety and health protections for workers -- and an appreciation for what they can do -- it's no wonder that these things happen."

Monforton, who previously worked at OSHA, says that the agency has not been successful over the last 20 years in issuing regulations; the last rules covering refinery workers, for instance, haven't been updated since 1989. Monforton also cites the agency's reaction to the 2008 Imperial Sugar refinery explosion, which killed 14 workers and injured over 40 when sugar dust ignited, prompting recommendations to regulate exposure to combustible dust. "There hasn't been any change," she says, adding that the firm "hasn't paid a dime in their penalty."

A spokesman for OSHA did not return an email for comment regarding Imperial Sugar and the combustible dust issue in time for publication.

These problems are exacerbated by resistance from many businesses to safety regulations -- as HuffPost first reported last week, BP and other oil producers have fought proposed safety regulations for years and Massey Energy challenged hundreds of violations cited by federal inspectors.

Describing workers "who have been crushed, electrocuted, burned, or who have died in falls, trench collapses and forklift accidents" as "the invisible relentless daily tragedies of the American workplace," OSHA director David Michael, in testimony before Congress, blamed businesses that ignore safety regulations. "Too often, we see employers who assess the benefits of refusing to comply with the law and compare them to the costs of complying with the law. If they find that the costs of compliance outweigh the penalties they will face if caught, they opt to gamble with their workers' lives. This is a "catch me if you can" approach to safety and health. It is what we saw in action at Upper Big Branch and what we at OSHA see far too often in the workplaces we visit."

Michaels conceded that OSHA is hamstrung, since the law has not been updated and penalties haven't been increased in 20 years, announcing that the agency just launched a new enforcement strategy requiring each employer to implement an injury and illness prevention program.

* * * * *

Both disasters illustrate unique weaknesses of the regulatory system, according to safety experts and former regulators.

Though the Deepwater Horizon oil rig disaster is still being investigated, the rig's lack of a backup device used in Norway and Britain to prevent blowouts and possible faulty cementing work have been criticized by oil drilling experts. In addition, there has been widespread concern about MMS and its ability to effectively regulate the industry, especially when it comes to worker safety and health issues.

Most workplaces are regulated by OSHA -- offshore drilling operations are one of the few exceptions. And MMS, which primarily is responsible for collecting royalties from oil and gas producers that drill on federal land and water, seems ill-equipped to deal with safety and health issues, as well as environmental risks.

As HuffPost reported last week, MMS did not require BP to file a blowout plan when the company filed its exploration plan for the Deepwater Horizon rig last year and the agency underplayed the impact of a potential spill in its environmental impact statement on that region of the Gulf of Mexico.

The agency has been faulted for assessing inadequate penalties, averaging $45,000 over the last 12 years, as reported by ProPublica. In addition, MMS has referred very few potential criminal violations to the Interior Department's Inspector General, reports the Project on Government Oversight.

In general, the oil industry has been allowed to police itself by MMS, with producers and drilling contractors voluntarily abiding by a safety management program devised by the American Petroleum Institute, an industry trade group. When the agency sought to require audits every three years to make sure that oil companies were abiding by the program, the industry fought back and the proposal has yet to take effect.

The regulatory system for offshore oil rigs is considered more rigorous in Norway, Britain and other major oil producing countries. The safety record of U.S. offshore drilling does not compare well with overseas companies -- over the past 5 years, an offshore oil worker in the U.S. was more than four times as likely to be killed than a worker in Europe, and 23% more likely to sustain an injury, according to a Wall Street Journal analysis of data.

"We have seen platforms in the Gulf of Mexico that would never have been allowed in Norway," says Dr. Urban Kjellén of the Norwegian University of Science and Technology. The safety philosophy for the design of these installations is very different in Norway -- one of the things is that you segregate hazardous areas from non-hazardous areas by distance or explosion walls. That way, if you get leakage, if you get gas clouds and if they ignite, you are likely to limit the consequences and avoid a total loss of the platform. It's a barrier."

Both the oil rig disaster and the mining tragedy illustrated the weaknesses of the US regulatory approach, which involves a checklist of prescriptive requirements, as compared to the European approach, which is more oriented towards reducing the risk to a tolerable level, focusing on making sure that workplaces are designed to function in an optimal way and to minimize human errors.

One interesting difference is that the Norwegian system actually involves a more self-regulatory approach on the part of companies, but the enforcement is very strict with frequent audits.

Former MMS head of regulatory affairs, Elmer Danenberger, disputes those criticisms, calling it a "cheap shot" in an interview with HuffPost and claiming that the agency is qualified to regulate the industry.

"I think that MMS has done a pretty good job in that regard, it's a quality organization," he says adding that the job involves "waking up every day knowing that I may have had 5,000 perfect days but anything can happen today, every little operation, this could be the one that takes the whole company down, takes the whole offshore thing down." He added that part of his job - and part of the rationale for the proposed safety regulations -- is to "hold bad players accountable."

Danenberger also disputed the idea that a performance-based system is necessarily preferable to prescriptive regulations when it comes to safety regulation of workplaces. He notes that the Piper Alpha incident, the worst offshore oil disaster in the world in which 167 people died in an explosion and fire on a production platform in the North Sea in 1988, prompted recommendations for Britain to change from a rules-based system to a performance-based one. Yet, Danenberger adds, last year's oil spill off the coast of Australia was blamed on a performance-based program. "So, you have the worst of both worlds."

One longtime safety and health official in the oil industry says that regulations would not have prevented the Deepwater Horizon explosion and oil spill, contrasting the industry with mining operations, "where disasters are a hell of a lot more common."

"This thing happened in an area where the industry is applying the best-available technology, the regulatory agency has some influence, but I think the influence on the big companies is limited to the extent that for these companies, it's in their vested interest not to let this happen - look at how many billions BP will lose."

The former industry official, who declined to be named, dramatically pronounced that the oil rig disaster could have the impact that Chernobyl did on the nuclear power industry, freezing new projects for years to come. "More stringent regulations wouldn't help prevent this from happening again -- unless you said, 'Don't drill.'"

* * * * *

One of most-cited problems with the Upper Big Branch mine was that Massey Energy had racked up thousands of violations, including withdrawal orders for serious violations, yet none of them resulted in the closure of the mine.

After Congress raised penalties for safety violations in 2006, the mining industry reacted by contesting more and more violations in order to delay the fines and prevent regulators from establishing the "pattern of violations" that might lead regulators to shut down unsafe mines. The number of citations contested has skyrocketed, from 7,200 in 2005 to 46,526 in 2009, creating a massive backlog for the Mine Safety and Health Administration.

Massey Energy contested nearly all major citations issued against the Upper Big Branch Mine in 2009 and paid less than 20% of the fines levied against it. The company's combative CEO, Don Blankenship, has butted heads with MSHA, saying that safety rules are "difficult to comply with" and "nonsensical."

Like its sister agency, MSHA also has had difficulty with its enforcement operations -- 14% of the country's underground coal mines were not inspected in 2006, according to a report by the Department of Labor's inspector general.

Monforton, who used to work at MSHA, says that the agency does not enforce its violations enough and that its financial penalties are minimal -- for mining companies like Massey Energy, it's just cheaper to pay those fines that to come up with a real plan [for worker safety and health]."

The current regulations are essential, she argues. "We see deaths in all kinds of mines and 95% of the time, when the probe is done, what the agency finds is that the regulations were not followed. Regulations are designed to prevent these types of things, whether it's certain amount of ventilation in a coal mine - it's violating those things that lead to these deaths."

Critics of MSHA cite the fact that agency has only used the "pattern of violations" rule once since 1977 to shut down an unsafe mine. "They have institutionalized the concept that violations of law, whether serious or minor, are acceptable," says Patrick McGinley, a professor at the West Virginia School of Law.

In particular, he is troubled that after the Sago mine disaster in 2006, the agency failed to follow through on its promise to enforce the "pattern of violations" rule but instead allowed mines that improved their safety records to avoid penalties.

"The goal should be compliance and not embracing operations that violate or rewarding the least-bad operator -- just because you're better than average doesn't mean you're good."

MSHA, which recently announced that it is expanding its investigation into the Upper Big Branch disaster, has vowed to improve its enforcement program.

At a congressional hearing last week, MSHA director Joe Main admitted that the agency "has limited tools to hold bad actors accountable and to try to force them to change their behavior."

Both disasters highlight the fact that these high-risk resource-extraction industries have taken a high toll and that their unique regulatory cultures may need to be reexamined and updated to protect the safety and health of workers.

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