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MSHA never hit Upper Big Branch with major fines

CHARLESTON, W.Va. -- Despite escalating safety concerns prior to the Upper Big Branch Mine Disaster, federal regulators never hit the Massey Energy operation with one of their toughest tools: fines of up to $220,000 each for "flagrant" safety violations, officials confirmed this week.

Congress gave the U.S. Mine Safety and Health Administration authority for the increased fines as part of the MINER Act, passed in 2006 following the Sago, Aracoma and Kentucky Darby mine disasters.

The idea was to more harshly punish chronic and serious mine safety violations as part of a strategy to force mine operators to follow federal regulations. MSHA has used the authority more than 125 times in the last five years to fine mine operators $19.5 million.

But MSHA never cited Upper Big Branch for a flagrant violation, and nearly a year after the April 5, 2010, explosion that killed 29 miners, agency officials still won't explain why.

MSHA spokeswoman Amy Louviere said only that the matter is one of the issues being examined by agency officials as part of an "internal review" of MSHA's performance at Upper Big Branch.

"It's a very good question, and one that will be ably answered by the internal review team," Louviere said in an email response to questions from the Gazette. "If they find anything amiss or any deficiencies on MSHA's part, they will appear in the report and MSHA will need to address them."

As part of the 2006 MINER Act, Congress created a new type of sanction for "flagrant" violations. They defined flagrant as "a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury."

Under previous law, the maximum fine MSHA could assess was $70,000 per violation. The MINER Act allowed fines for flagrant violations of up to $220,000 per citation.

Then-MSHA chief Richard Stickler issued the first flagrant violations in April 2007, fining R&D Coal Co. $795,600 in such penalties for six citations following the death of a miner in a methane explosion at a mine in Schuylkill County, Pa., in October 2006. Under Stickler, MSHA issued nine more flagrant violations in 2007 and then issued 70 such violations in an aggressive enforcement push against the coal industry in 2008.

"Congress gave us powerful new tools to strengthen mine safety, and we are going to use them fully," Stickler said at the time.

Industry officials reacted strongly, with mining company lawyers encouraging clients to forcefully fight MSHA whenever the agency invoked the flagrant penalties section of the MINER Act.

"Now that the agency is provided with such a draconian enforcement measure that generates not only large revenues but lasting publicity, flagrant violations are likely to play a large part in inspections, mine citation history, and perhaps even the issuance of potential pattern of violation notices," according to a paper delivered by F. Thomas Rubenstein and Heather A. Blandford of the firm Dinsmore & Shohl at a May 2009 industry gathering in Hilton Head, S.C. "To counter such an increased enforcement climate, mine operators must be prepared to avoid, address and advocate against the issuance of flagrant violations."

After the Obama administration took office in January 2009, MSHA's assessment of flagrant penalties appears to have dropped off significantly, from 70 such assessments in 2008 to 19 each year in 2009 and 2010, according to agency data. So far in 2011, MSHA has issued three flagrant violations to coal operations, the data show.

None of the Obama administration's flagrant violations were issued to coal-mining operations inspected by MSHA's District 4 office in Southern West Virginia, agency records show.

District 4 has the most employees of all MSHA districts, as well as the most extensive workload. It is responsible for 27 percent of coal-mining units in the nation, compared to 14 percent in the next closest district. Because of its size, MSHA has sought more than $600,000 from Congress to split district 4 into two districts that agency officials argue will be easier to manage.

In an April 15, 2010, preliminary report to President Obama, Labor Secretary Hilda Solis described a "marked spike" in violations and an "alarming increase" in more serious problems at the mine. MSHA warned Massey Energy it might put Upper Big Branch on a "pattern of violations" track that would prompt tougher enforcement. But when the mine improved in 2007, MSHA backed off that approach.

Upper Big Branch again experienced a "significant spike in safety violations" in 2009, according to that report. Only because of a computer programming error did MSHA not again warn the company about a potential pattern of violations.

During a May 2010 Senate subcommittee hearing, MSHA chief Joe Main said the history at Upper Big Branch "demonstrates the kind of heavy presence that a beefed-up inspection corps allows MSHA to have at a troublesome mine.

"MSHA engaged in a multi-year effort to use the tools we had available to force Massey Energy to comply with the law and turn around its extensive record of serious safety and health violations at the Upper Big Branch Mine," Main told lawmakers.

But from 2008 through April 2010, the average penalty assessed for a violation at Upper Big Branch was just a little more than $1,800. The mine was fined more than $10,000 per violation in only two dozen out of more than 800 citations and orders, according to MSHA records.

MSHA fined Upper Big Branch the maximum allowed for nonflagrant violations -- $70,000 -- only once during that time.

That was for a Jan. 7, 2010, violation in which MSHA inspectors alleged the flow of fresh air underground was going the wrong way, pushing potentially dirty air into the mine's primary emergency escape route. MSHA alleged a mine foreman knew of the problem for three weeks, but didn't fix it.

Davitt McAteer, who was appointed by former Gov. Joe Manchin to conduct an independent investigation at Upper Big Branch, said his team's report will include some discussion of potential failings of government regulators charged with enforcing mine safety rules.

"You have these checks and balances in company safety reviews, MSHA enforcement, state enforcement," McAteer said. "They are there to be sure that people don't forget. You have not just a singular failure, but multiple failures of the entire system."

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


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