"I don't know the answer to that, but I will get that to you as soon as I can," Wagner said.
Nearly 30 years ago, Congress gave MSHA the pattern of violations authority when it rewrote federal mine safety laws in 1977. Lawmakers said the need for the provision was "forcefully demonstrated" during the investigation of the Scotia Mine Disaster, in which two explosions killed 23 miners and three federal inspectors in Kentucky in 1976.
But Oppegard said that MSHA wrote rules for the pattern of violations process that wrongly allow for the issuing of those warning letters -- instead of simply citing companies when they meet the criteria and immediately stepping up enforcement to protection miners.
"They are not only adding this step, they are, I think, violating the statute," Oppegard said. "It eviscerates the statute."
Wagner said that the new leaders at MSHA under the Obama administration hope to rewrite the pattern-of-violations rules, which date back to 1990. But he conceded that MSHA did not include such a proposal on regulatory agendas issued in May or in December.
National media reports since Monday's horrific explosion have focused on Massey Energy's safety record and evidence of growing problems over the last year at the Upper Big Branch Mine.
On Thursday afternoon, MSHA made public documents covering the mine's most recent quarterly inspection, which ended March 31. During that time, the operation was cited at least nine times for illegal accumulations of coal dust.
Mine safety experts have said this week that the Upper Big Branch explosion was extraordinarily large, a potential indication that coal dust was involved and made a methane ignition far worse than it otherwise might have been.
Coal dust -- especially very fine "float dust" like that found at the Upper Big Branch Mine -- is know to be potentially deadly, but regulators and experts have for years known it can be controlled by using proper amounts of "rock dust" or powdered limestone that dilutes the coal dust to safe concentrations.
"The evidence of large quantifies of float coal dust is an alarming discovery in light of what occurred at this mine on Monday," said mine safety advocate Davitt McAteer, who ran MSHA during the Clinton administration.
MSHA records indicate inspectors found unsafe buildups of coal dust in the Upper Big Branch Mine at least as recently as March 15.
"The longwall belt has accumulations of fine coal dust, black in color over top of previously rock dusted areas from the belt tail roller to the belt head," said that day's inspection report from MSHA.
Another inspection report from late January for another portion of the mine described "float coal dust along the entire beltline" and at least two others outlined laboratory analysis that showed inadequate "rock dusting" in parts of the mine.
More recent MSHA inspection reports for visits to the mine since April 1 have not yet been made available by the agency.
But last quarter's inspection also included repeated citations for improper rock dusting and violations of the mine's ventilation plan.
In describing MSHA's policing of the Upper Big Branch Mine, Wagner said, "I think we feel that we used the tools that we have available."
But Wagner said he did not know if MSHA ever sought increased fines from the Upper Big Branch Mine for "flagrant violations," as allowed under the 2006 MINER Act.
And he said MSHA did not use its long-standing legal authority to seek a federal court order against any condition at the mine that created "a continuing hazard to the health or safety of miners."
"We did not use that section of the act, no," Wagner said. "I'm really trying to get an opinion from our lawyers to explain to me really what constraints they felt really existed to keep us from going <t40>...<t$> I don't think that's ever been used, and I think there's some reason that people haven't and I need to find that out."
<I>Staff writer Gary Harki contributed to this report.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.