CHARLESTON, W.Va. -- Despite escalating safety concerns prior to the Upper Big Branch Mine Disaster, federal regulators never hit the Massey Energy operation with one of their toughest tools: fines of up to $220,000 each for "flagrant" safety violations, officials confirmed this week.
Congress gave the U.S. Mine Safety and Health Administration authority for the increased fines as part of the MINER Act, passed in 2006 following the Sago, Aracoma and Kentucky Darby mine disasters.
The idea was to more harshly punish chronic and serious mine safety violations as part of a strategy to force mine operators to follow federal regulations. MSHA has used the authority more than 125 times in the last five years to fine mine operators $19.5 million.
But MSHA never cited Upper Big Branch for a flagrant violation, and nearly a year after the April 5, 2010, explosion that killed 29 miners, agency officials still won't explain why.
MSHA spokeswoman Amy Louviere said only that the matter is one of the issues being examined by agency officials as part of an "internal review" of MSHA's performance at Upper Big Branch.
"It's a very good question, and one that will be ably answered by the internal review team," Louviere said in an email response to questions from the Gazette. "If they find anything amiss or any deficiencies on MSHA's part, they will appear in the report and MSHA will need to address them."
As part of the 2006 MINER Act, Congress created a new type of sanction for "flagrant" violations. They defined flagrant as "a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury."
Under previous law, the maximum fine MSHA could assess was $70,000 per violation. The MINER Act allowed fines for flagrant violations of up to $220,000 per citation.
Then-MSHA chief Richard Stickler issued the first flagrant violations in April 2007, fining R&D Coal Co. $795,600 in such penalties for six citations following the death of a miner in a methane explosion at a mine in Schuylkill County, Pa., in October 2006. Under Stickler, MSHA issued nine more flagrant violations in 2007 and then issued 70 such violations in an aggressive enforcement push against the coal industry in 2008.
"Congress gave us powerful new tools to strengthen mine safety, and we are going to use them fully," Stickler said at the time.
Industry officials reacted strongly, with mining company lawyers encouraging clients to forcefully fight MSHA whenever the agency invoked the flagrant penalties section of the MINER Act.
"Now that the agency is provided with such a draconian enforcement measure that generates not only large revenues but lasting publicity, flagrant violations are likely to play a large part in inspections, mine citation history, and perhaps even the issuance of potential pattern of violation notices," according to a paper delivered by F. Thomas Rubenstein and Heather A. Blandford of the firm Dinsmore & Shohl at a May 2009 industry gathering in Hilton Head, S.C. "To counter such an increased enforcement climate, mine operators must be prepared to avoid, address and advocate against the issuance of flagrant violations."