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 kw...@wvgazette.com or 304-348-1702.