CHARLESTON, W.Va. -- Last year, federal regulators studied the safety record of Massey Energy's Upper Big Branch Mine to see if the operation should be put on a "pattern of violations" status, a move that would shut down mining sections each time inspectors found serious violations.
U.S. Mine Safety and Health Administration officials decided the company hadn't met the agency's complicated criteria for deserving such a stepped-up enforcement action.
Upper Big Branch met nine of MSHA's 10 criteria for a pattern of violations, said agency spokesman Carl Fillichio. It had at least 20 serious citations, it had two orders citing "imminent harm" to miner safety, and had violation rates worse than the national average.
But when MSHA did its review, in September 2009, Upper Big Branch did not meet a final standard: That it have at least one "withdrawal order" issued by MSHA inspectors for serious and substantial mine safety violations.
Upper Big Branch didn't have a single such order. It had 16 of them.
But Massey mine managers and lawyers challenged all 16, and those appeals were still pending. So Upper Big Branch didn't meet MSHA's requirement -- spelled out in an agency policy, not federal law or regulations that were subject to public comment -- for using one of the toughest tools given to the agency charged with protecting the lives of U.S. coal miners.
MSHA officials have complained that a huge increase in appeals of enforcement actions by coal operations nationwide has hampered their efforts to crack down on problem mines.
In the wake of last week's disaster at Upper Big Branch, MSHA released data that showed Massey's rate of challenging citations -- 74 percent, based on the amount of fines appealed -- was higher than the national industry figure, about 66 percent.
But the agency had not previously confirmed that the issue applied specifically to the Upper Big Branch Mine, where last week 29 miners died and two others were injured in a huge underground explosion.
For nearly a week, top MSHA officials were unable to explain to the media or inquiring congressional representatives why agency officials had not cited Upper Big Branch for a violations pattern. Fillichio provided the answer finally on Friday, in response to questions from The Charleston Gazette.
Under federal law, MSHA generally does not have broad authority to simply close a troubled coal mine, unless it seeks a federal court injunction to stop anything its inspectors believe "constitutes a continuing hazard to the health and safety of miners."
But on its own authority and without going to court, MSHA can issue what the law calls "withdrawal orders" that force all miners to be removed from areas until significant hazards are eliminated.
Citing a mine for a pattern of violations, though, kicks the operation into a much tougher enforcement bracket. Each time an additional serious citation is issued, that part of the mine is closed. Mines can only have the pattern of violations designation lifted if they go an entire quarterly inspection without a serious violation.