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While cutting back enforcement, MSHA asked for no new money

CHARLESTON, W.Va. -- While federal mine safety regulators last year were curtailing tougher enforcement actions because of "resource limitations," the Obama administration was telling Congress it had adequate funding to do its job.

Last week, the Department of Labor Inspector General revealed that the federal Mine Safety and Health Administration excluded some potentially dangerous mines from review for "pattern of violation" enforcement orders.

In March 2009, MSHA coal administrator Kevin Stricklin instructed his staff to consider only one mine per field office and three per district office for those orders, which put operators in line for tougher sanctions. As a result, at least 10 mines with a history of repeated violations were not examined more closely and considered for these tougher sanctions.

Inspector General Elliott Lewis said his investigators discovered that MSHA officials believed "this guidance was necessary to address resource limitations."

But two months later, President Obama proposed a modest budget increase for MSHA and Labor Secretary Hilda Solis said publicly that the president's budget proposal was adequate for MSHA to do its job.

"The request level will allow MSHA to enforce safety and health laws vigorously and complete its inspection mandate," Solis said in an online chat hosted by the labor department.

Then earlier this year, President Obama proposed a slight cut in MSHA's spending on coal industry safety and health enforcement. In testimony to Congress on March 23 -- less than a month before the Upper Big Branch Mine Disaster -- Solis specifically told lawmakers that MSHA had plenty of money to run its pattern of violations program.

"The budget will ensure a 100 percent completion rate for all mandatory safety and health inspections, support MSHA's enhanced enforcement initiatives, which target patterns of violations, flagrant violators, and scofflaws," Solis told a House appropriations subcommittee.

Two weeks after that, on March 23, Solis repeated the same statements in a hearing before a Senate appropriations subcommittee.

On Friday, Sen. Robert C. Byrd, D-W.Va., questioned why the administration had not previously asked Congress for additional funding to deal with the pattern of violations "resource limitations."

"If there are resource limitations inhibiting mine safety enforcement, I am anxious to know why the Labor Department had not asked for additional funds, or utilized its reprogramming and transfer authorities," Byrd said. Byrd noted that MSHA has a week to respond to the Inspector General's report, and that he hoped the agency's response "would provide the necessarily clarity."

In large part because of Byrd's efforts, MSHA's budget for coal enforcement has increased by 36 percent since 12 miners died in the Sago Mine Disaster in January 2006. Funding acquired by Byrd has helped MSHA hire more than 400 new inspectors, in response to Gazette-Mail findings in 2007 that the agency was not completing required quarterly inspections at underground coal mines.

MSHA's pattern of violations program has come under increasing scrutiny since 29 miners died in the massive April 5 explosion at Massey Energy's Upper Big Branch Mine.

Under this program, mines with a history of serious safety problems are kicked into a tougher enforcement bracket. Each time an additional serious citation is issued, that part of the mine is closed. Mines can have the pattern of violations designation lifted only if they go an entire quarterly inspection without a serious violation.

After the disaster, MSHA officials complained publicly that they had been unable to put Upper Big Branch on a pattern of violations order because the company had aggressively appealed citations, delaying final enforcement decisions required by the agency's internal pattern of violations guidelines.

But a few days later, top MSHA officials revealed that Upper Big Branch had actually avoided the pattern of violations system because a "computer programming error" had missed eight final enforcement orders that would have constituted the basis for such an action.

So far, MSHA chief Joe Main and his staff have refused requests for interviews about the Inspector General's findings about the pattern of violations program.

@tag:Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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