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MSHA targets two mines for repeated violations

CHARLESTON, W.Va. -- Federal regulators have targeted two coal-mine operators with tougher enforcement after serious safety violations became more frequent, despite a warning last year that the mines needed to improve.

U.S. Mine Safety and Health Administration officials formally issued "pattern of violations" notices to The New West Virginia Mining Co.'s Apache Mine in McDowell County and Bledsoe Coal Corp.'s Abner Branch Rider Mine in Leslie County, Ky.

The move means working sections of the mines will face closure orders for each additional serious violation.

Inspectors won't lift those closure orders until the violations that prompted them are fixed, and the mines won't be removed from this "pattern of violations" tract until they undergo a complete inspection without a serious violation.

"We're trying to send a message to the mining industry that you do not want to go down this path," said Joe Main, assistant labor secretary for MSHA. "We're going to change the culture of those who want to flout the law."

But Main said that one of the two operations, the Apache Mine, has already closed, at least temporarily. MSHA records indicated the mine hasn't produced coal since late January.

MSHA billed Tuesday's announcement as an "unprecedented enforcement action" and the first time in the history of the federal mine safety law that the agency has used its "pattern of violations" authority. But MSHA has tried to use the authority at least twice before, only to be forced to back down when citations used to establish a pattern were shot down on appeal.

The Obama administration has been scrambling to step up its mine safety enforcement in the last year, following the April 5, 2010, explosion that killed 29 miners at Massey Energy's Upper Big Branch Mine in Raleigh County.

Among MSHA's priorities has been to begin using the pattern of violations (POV) authority against mine operators that repeatedly violate the law, and to toughen the federal regulations that implement that authority.

In November and December, MSHA had warned 13 mine operators that they faced POV orders if they didn't improve their safety performance. Operators temporarily idled two of those mines and closed a third.

Eight of the remaining 10 mines improved the share of violations that were rated as serious by 39 percent to 97 percent, reaching goals set by MSHA for avoiding a POV order.

But the serious violation rate at Apache worsened by 6 percent and the rate at Abner Branch worsened by 5 percent, MSHA said. "I was highly disappointed when I saw the stats on these mines," Main said.

Congress created the pattern of violations program in 1977, after finding that repeated citations and fines by federal inspectors weren't enough to improve safety performance and prevent a series of explosions that killed 23 miners and three inspectors at the Scotia Mine in Kentucky in March 1976.

Before Upper Big Branch, Main and other MSHA officials were complaining to Congress that mine operators were thwarting the process by appealing most of their serious violations, taking advantage of a 1990 MSHA rule that exempted citations that were under appeal from consideration in the process.

After the disaster, MSHA pushed this narrative by going public with claims that the agency was unable to put the Upper Big Branch Mine on a pattern of violations order because Massey Energy had aggressively appealed citations. A few days later, MSHA admitted that an agency "computer programming error" that missed eight final orders was actually to blame for its lack of action at Upper Big Branch.

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


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