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Mine appeals clog MSHA enforcement process

CHARLESTON, W.Va. -- Mine operators have tripled their appeals of safety citations and fines in an effort to block tougher enforcement actions for repeat violations, members of a congressional hearing were told Tuesday.

Companies formally challenged about 9,200 citations or fines issued by the U.S. Mine Safety and Health Administration in 2009, up from 2,400 new appeals in 2005, according to testimony at a hearing of the House Education and Labor Committee.

Committee Chairman George Miller, D-Calif., called the hearing to study and hear possible solutions to a growing case backlog at the Federal Mine Safety and Health Review Commission.

"Perhaps this process is protecting those with the worst records and the most serious violations," Miller said.

Congress mandated stiffer fines and MSHA implemented tougher enforcement policies following a series of coal-mining disasters in 2006 and 2007 that killed 28 workers. Since then, annual violations cited by MSHA have increased 35 percent to 174,000. Fines have skyrocketed from $25 million to $194 million.

Joe Main, assistant labor secretary for MSHA, said the increased enforcement helped lead to a record low number of mining deaths -- 35 in all sectors -- in 2009.

But, Main said, the unresolved backlog at the Review Commission has grown to include 82,000 violations and $210 million in penalties.

Main explained that the backlog means more cases aren't reaching their final resolution, the point at which MSHA can count citations toward a "pattern of violations" by renegade operators. Once MSHA cites an operator for a "pattern of violations," inspectors can step up enforcement to include shutting down production until compliance improves.

In his prepared testimony, Main said MSHA believes "some operators" are appealing nearly all of their citations and fines "because it delays the finding of a pattern, adding to the backlog and delaying MSHA from using this enhanced enforcement at their mines."

MSHA data cited by Miller showed that 47 mines that employ nearly 6,000 workers would likely face such tougher sanctions if not for the holdup of cases at the Review Commission.

"Having delay in the resolution of alleged violations diminishes MSHA's ability to use the full panoply of its enforcement tools," Roberts told committee members.

Bruce Watzman, lobbyist for the National Mining Association, told lawmakers the backlog is MSHA's fault for eliminating a process for mine operators to informally challenge citations and fines in "conferences" with agency district staff.

Watzman testified the MSHA action "created an irrational process which increased the number of citations at the same time it eliminated an informal procedure for contesting them."

But a chart Watzman included with his prepared testimony indicated the largest increase in appeals came after tougher penalties were instituted by MSHA, but before then-agency chief Richard Stickler did away with informal appeals in February 2008.

Main told lawmakers he plans to reinstitute a form of the informal appeals process as part of a plan to deal with the case backlog. But Main said the best way to cut back on time-consuming and costly appeals would be for mine operators to not violate safety rules.

"If MSHA inspectors can inspect workplaces and find these conditions, mine management should be finding them as well," Main said. "If mine operators would take greater ownership of mine safety and health, it would be beneficial for all involved.

"Workers will be safer, the number of violations will be reduced, and penalties will go down," Main said. "Instead of paying fines to the government, companies can invest that money back into ensuring the optimum health and safety at their mining operations."

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


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