Appeals kept Montcoal mine operating
CHARLESTON, W.Va. -- Last year, federal regulators studied the safety record of Massey Energy's Upper Big Branch Mine to see if the operation should be put on a "pattern of violations" status, a move that would shut down mining sections each time inspectors found serious violations.
U.S. Mine Safety and Health Administration officials decided the company hadn't met the agency's complicated criteria for deserving such a stepped-up enforcement action.
Upper Big Branch met nine of MSHA's 10 criteria for a pattern of violations, said agency spokesman Carl Fillichio. It had at least 20 serious citations, it had two orders citing "imminent harm" to miner safety, and had violation rates worse than the national average.
But when MSHA did its review, in September 2009, Upper Big Branch did not meet a final standard: That it have at least one "withdrawal order" issued by MSHA inspectors for serious and substantial mine safety violations.
Upper Big Branch didn't have a single such order. It had 16 of them.
But Massey mine managers and lawyers challenged all 16, and those appeals were still pending. So Upper Big Branch didn't meet MSHA's requirement -- spelled out in an agency policy, not federal law or regulations that were subject to public comment -- for using one of the toughest tools given to the agency charged with protecting the lives of U.S. coal miners.
MSHA officials have complained that a huge increase in appeals of enforcement actions by coal operations nationwide has hampered their efforts to crack down on problem mines.
In the wake of last week's disaster at Upper Big Branch, MSHA released data that showed Massey's rate of challenging citations -- 74 percent, based on the amount of fines appealed -- was higher than the national industry figure, about 66 percent.
But the agency had not previously confirmed that the issue applied specifically to the Upper Big Branch Mine, where last week 29 miners died and two others were injured in a huge underground explosion.
For nearly a week, top MSHA officials were unable to explain to the media or inquiring congressional representatives why agency officials had not cited Upper Big Branch for a violations pattern. Fillichio provided the answer finally on Friday, in response to questions from The Charleston Gazette.
Under federal law, MSHA generally does not have broad authority to simply close a troubled coal mine, unless it seeks a federal court injunction to stop anything its inspectors believe "constitutes a continuing hazard to the health and safety of miners."
But on its own authority and without going to court, MSHA can issue what the law calls "withdrawal orders" that force all miners to be removed from areas until significant hazards are eliminated.
Citing a mine for a pattern of violations, though, kicks the operation into a much tougher enforcement bracket. Each time an additional serious citation is issued, that part of the mine is closed. Mines can only have the pattern of violations designation lifted if they go an entire quarterly inspection without a serious violation.
Obama administration officials have tried to deflect any potential criticism that MSHA chief Joe Main did not take tough enough action against the Upper Big Branch Mine by saying increased appeals by the industry are tying their hands.
"MSHA elevated its enforcement levels where repeat violations were noted and where the negligence of the operator suggested it do so," said a set of MSHA "talking points" distributed last week. "Even with the large number of violations at this mine site, MSHA lacked the legal authority to shut down the mine."
But, the complex "screening criteria" that MSHA said prohibited it from putting Upper Big Branch on "pattern of violation" status are not part of the federal mine safety law.
When lawmakers added the violations pattern language to the law in 1977, they simply said the status should apply "if an operator has a pattern of violations of mandatory health or safety standards ... which are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other mine health or safety standards."
The guideline was written internally by MSHA, when the Bush administration decided in 2007 that it would begin for the first time using the pattern of violations section of the mine law.
And while Main told a House Labor Committee hearing in February that appeals by industry of MSHA actions had skyrocketed because of heftier fines, creating a backlog that was stalling enforcement actions, that issue had been raised for two years with little action by anyone to resolve it.
In February 2008, then-MSHA chief Richard Stickler warned that mine operators were clogging up the appeals process by challenging nearly all of their serious citations, following an increase in tougher fines that followed the Sago disaster of 2006. And in June 2008, Sen. Jay Rockefeller, D-W.Va., criticized the industry during a Senate budget hearing for dramatically increasing its appeal rate.
Sen. Robert C. Byrd, D-W.Va., helped secure additional funding in the current year's budget to help litigate the appeals. Byrd said last week he is examining whether still more money is needed "to help shorten the amount of time to litigate these fines."
And in July 2009, the Obama administration was urged by the watchdog group Public Citizen to deal with the backlog of appeals cases that the industry had filed with the U.S. Mine Safety and Health Review Commission.
"Every day that these safety violations go unresolved, the chance that this nation will see another tragic mining accident grows," David Akrush, director of Public Citizen's Congress Watch division, said at the time.
"Congress rightly passed stricter mining safety regulations in 2006, but new rules and fines are useless if they are not enforced."
Reach Ken Ward Jr. at email@example.com or 304-348-1702.