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MSHA rule would crack down on repeat mine safety violators

CHARLESTON, W.Va. -- Coal operators whose mines repeatedly violate safety and health standards could more easily be hit with tougher enforcement actions under a new rule being finalized by the Obama administration.

U.S. Department of Labor officials released the final version of their long-awaited updated rules aimed at reforming the controversial "pattern of violations," or "POV," program at the federal Mine Safety and Health Administration.

The rules stop mine operators from using appeals of safety citations to avoid tougher enforcement and do away with MSHA warning letters that give companies additional time to improve before facing tougher enforcement.

MSHA announced the final rules on the same day that a federal judge in West Virginia sentenced the former superintendent of the Upper Big Branch Mine. Prior to the April 2010 explosion that killed 29 miners, Upper Big Branch had avoided being classified as a pattern violator by appealing hundreds of violations -- and because of MSHA inaction the agency later called a computer programming error.

"We think that this final rule will help prevent another tragedy such as occurred at the Upper Big Branch Mine," MSHA chief Joe Main told reporters during a news-conference call.

Rep. George Miller, D-Calif., said the rule closes key loopholes that "some mine operators exploited to the detriment of workers' lives and limbs." Sen. Tom Harkin, D-Iowa, called the rule "a substantial step forward that will help us address the problems at our most dangerous mines before disaster strikes."

Sen. Jay Rockefeller, D-W.Va., called MSHA's final rule "an important step forward for improving safety in mines across West Virginia and the country" and said he would continue to push for his "comprehensive mine safety bill" in Congress.

The National Mining Association criticized the final rule, saying it would deprive mine operators of "due process" by allowing MSHA citations that are under appeal to be counted as part of a violation pattern.

Federal Labor Secretary Hilda Solis said completing the rule has been among her agency's highest priorities. However, it's taken nearly two years -- MSHA proposed the rule in February 2011 -- for Obama administration officials to finalize their changes.

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.

Under the 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.

Even 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 mine owner Massey Energy Co. had aggressively appealed citations. A few days later, MSHA admitted that an agency "computer programming error" that missed eight final-enforcement orders was actually to blame for its lack of action at Upper Big Branch. Main said he believes MSHA's computer programming and other systems have been improved to avoid a repeat of what happened with the Upper Big Branch Mine.

Until 2011, in the more than 30 years since Congress created the POV program, MSHA had never successfully put a single mining operation on a pattern-of-violation status.

On Thursday, Main declined to say if future mine safety legislation should include further changes in the pattern-of-violation language now that MSHA has finalized its new rule.

"We believe we have crafted a rule that will better protect the nation's miners," Main said. "Whether or not Congress decides to take another look at that is another question."

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


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