The warning letters give the mines 90 days to improve or face receiving the actual pattern of violation orders. Upper Big Branch had received a warning letter two years earlier, in 2007, but improved its record and avoided a formal enforcement order.
If a warning letter had been issued following the 2009 review, Massey would still have avoided a formal order because the company cut its serious safety violations by 65 percent during the next 90 days, Wagner said.
"Even if the pattern of violation had been discovered, the Upper Big Branch Mine would not have been placed on a pattern of violations," Wagner said during a phone interview Tuesday afternoon.
For several years, mine safety advocates have argued against the use of the warning letters -- which are not required by federal law or formal regulations -- saying MSHA should not give operators so many chances to avoid mine closures.
On Monday evening, Kentucky mine safety lawyer Tony Oppegard and Wes Addington of the Appalachian Citizens Law Center wrote a letter that urged MSHA chief Joe Main to revoke the agency's current policies.
"Indeed, the extensive and flagrant violation history of the Upper Big Branch mine makes clear that that mine should have been "placed on a pattern" long before the recent disaster," Oppegard and Addington said.
"Had MSHA used this enforcement tool as Congress intended, the mine would have received the stricter scrutiny that might have prevented the disaster."
On Tuesday, Rep. Nick Rahall, D-W.Va., joined House Labor Committee Chairman George Miller, D-Calif., in seeking a Labor Department Inspector General review of MSHA's use of its "pattern of violations" order authority and of the computer glitch cited in the Upper Big Branch case.
In a statement, Rahall, Miller and House Workforce Protections Subcommittee Chairwoman Lynn Woolsey called the MSHA announcement of the computer problem "deeply disturbing."
"In light of this disclosure, we will be asking the Labor Department's Inspector General to examine issues surrounding this disclosure," the statement said. "The miners who died so tragically at the Upper Big Branch Mine, their families, and all the men and women who go to work in our mines each day deserve nothing less."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.