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 kw...@wvgazette.com or 304-348-1702.