MSHA proposes to beef up 'pattern-of-violations' rules
CHARLESTON, W.Va. -- The Obama administration moved forward with a major toughening of its rules to crack down on coal companies that repeatedly violate standards meant to protect the health and safety of the nation's coal miners.
U.S. Mine Safety and Health Administration officials proposed the first changes in nearly 20 years to agency regulations that govern its "pattern-of-violations" enforcement process that's been under increasing scrutiny since the April 5, 2010, Upper Big Branch Mine Disaster.
The rules would stop mine operators from using appeals of safety citations to avoid tougher enforcement, do away with MSHA warning letters that give companies an additional chance to improve, and require regulators to more frequently check mine safety records looking for scofflaws.
"We're trying to craft a rule here that has the industry constantly monitoring its health and safety performance so they don't reach the point of a pattern-of-violations order," said Joe Main, assistant labor secretary in charge of MSHA.
But the main tool for operators to do that monitoring -- an online MSHA database that specifically tracks the enforcement actions used to determine a pattern of violations -- is yet to be designed and is not mandated or even described in the rule proposed by the agency.
And it's not clear from the MSHA proposal how the new administrative rules would be enforced in relation to separate legal authority agency officials have resurrected for taking mine operators to federal court when they repeatedly violate safety and health standards.
Carol Raulston, spokeswoman for the National Mining Association, said the industry had a variety of questions about the proposal that MSHA was not able to answer during a private phone call with stakeholders.
Raulston said mine operators are especially concerned about changes allowing MSHA to consider violations that are still under appeal in determining a company should receive a POV order, and about eliminating the warning notice in favor of the computer tracking system.
The United Mine Workers issued a statement in strong support of the MSHA proposal, but also cautioned that details need to be carefully included in the rule so they ensure consistent enforcement under varying political administrations.
"Regulations are just words written on paper," said union President Cecil Roberts. "To become something that is followed -- something that saves lives -- they have to be enforced.
"We believe the current leadership of the Department of Labor and MSHA will use these tools," Roberts said. "But who's to say what may happen under a future leadership?"
MSHA projected that its proposed changes would help avoid 150 mining injuries per year, at an estimated economic savings of $9.3 million annually. That's compared to estimated costs to the industry and the agency of $5.1 million per year.
Congress created the pattern-of-violations program in 1977, after finding that repeated citations and fines by federal inspectors weren't enough to improve safety performance and prevent a series of explosions that killed 23 miners and three inspectors at the Scotia Mine in Kentucky in March 1976.
Under the program, mines with a history of serious safety problems are kicked into a tougher enforcement bracket. Each time an additional serious citation is issued, that part of the mine is closed. Mines can have the pattern-of-violations designation lifted only if they go an entire quarterly inspection without a serious violation.
Even before Upper Big Branch, Main and other MSHA officials were complaining to Congress that mine operators were thwarting the process by appealing most of their serious violations, taking advantage of a 1990 MSHA rule that exempted citations that were under appeal from consideration in the process.
After the disaster, MSHA pushed this narrative by going public with claims that the agency was unable to put the Upper Big Branch Mine on a pattern-of-violations order because Massey Energy had aggressively appealed citations. A few days later, MSHA admitted that an agency "computer programming error" that missed eight final enforcement orders was actually to blame for its lack of action at Upper Big Branch.
In the more than 30 years since Congress created the POV program, MSHA has never successfully put a single mining operation on a pattern-of-violations status. Late last year, lawmakers in Congress declined to move forward with Obama administration-backed legislation for a more detailed overhaul of the POV statute.
Reach Ken Ward Jr. at email@example.com or 304-348-1702.