“They should have made the cuts somewhere else. This was to make mines safer,” said Gary Quarles, whose son Gary “Spanky” Wayne died at Upper Big Branch in West Virginia. “Here we are, and it is about to be the third anniversary . . . . We thought something good might come out of it. This is wrong.”
After the explosion, legal teams were hired to deal with a backlog of contested mine safety citations. The number of unresolved appeals had grown to 16,600, and Massey Energy, then owner of Upper Big Branch, had the highest contestation rate of any coal mine in the nation.
By contesting citations from the Labor Department’s Mine Safety and Health Administration (MSHA), mine owners were able to avoid racking up high numbers of serious violations that would place them in the agency’s “pattern of violation” program. There they would be more closely scrutinized, and their operations could be restricted or even shut down.
And as long as citations are under appeal, the agency cannot issue the heavier fines allowed under the law for repeated violations of the same safety hazard.
In the five years leading up to the explosion, Massey Energy had received 1,422 citations for safety violations at the Upper Big Branch mine and was assessed $1.89 million in penalties.
Massey, which has since been sold to competitor Alpha Natural Resources, was contesting 25 percent of the citations at the time of the explosion.
But now two of the five offices of the legal effort — the Litigation Backlog Project — are being shuttered, and 30 of the 74 lawyers hired for the effort will be laid off by June 1.
Labor Department officials said the project was meant to be temporary and that sequestration cuts accelerated the timetable for “drawing down” the number of lawyers assigned to it. Department officials said the cuts will save $2.1 million.
Congress provided $22 million for the project, which included hiring additional judges and clerks.
The caseload before the Federal Mine Safety and Health Review Commission is down to 10,400, and the average wait time has been reduced by several months.
Robert J. Lesnick, chief judge of the review panel, said the commissions’s goal is to reduce the caseload to 5,500, with wait times closer to 180 days. Without the cuts, he said, it would have taken at least two years to get to that point.
“If litigation is the bite in any enforcement model, then [the Labor Department], in firing 30 attorneys, is pulling its teeth,” Lesnick said.
Members of Congress and the United Mine Workers of America (UMWA) are protesting the decision to cut the lawyers.
In a letter to Seth D. Harris, the Labor Department’s acting secretary, four members of Congress criticized the logic behind the department’s decision to make such severe cuts to a single program. In conversations with department officials, congressional staff have been told that the cuts were aimed at reducing the number of furlough days — forced by sequestration — that other attorneys would have to take from the department’s Office of the Solicitor.
“While the sequester is imposing hardships on multiple agencies within DOL, these staff cuts to the backlog effort are plainly disproportionate relative to other work carried out in the Solicitor’s Office,” the letter said. “We find this decision to be unacceptable and instead we believe the Solicitor’s Office should apply only proportional cuts to this program activity, so that efforts can be maximized to reduce the backlog of mine safety cases.”
UMWA officials said the cuts will unravel the gains that have been made.
“What it is going to mean is the companies that are already jamming up the system will be allowed to get away with that,” UMWA spokesman Phil Smith said. “This threatens to essentially bring the mine safety and legal system to a halt.”
Officials at the National Mining Association said they were unaware of the cuts and did not comment further.
However, Eric Silkwood, an attorney for the Elk Run Coal Co., which is appealing a number of citations at the commission, said he hopes the entire program will soon be phased out.
“Attorneys within the backlog project operate under strict parameters within which cases must be resolved, often without regard to the facts or the regulations governing assessment,” he said in a written statement. “There are many instances wherein these attorneys negotiate cases without ever speaking with the inspector that actually issued the citations to get their view of the counter-points provided by the operator.”
After the disaster, the MSHA began to work on new regulations to allow it to place mines in the “pattern of violation” program based on the number and severity of the citations that were issued — even if they are being disputed. The new regulations took effect Monday.
The National Mining Association and four other mining trade associations filed a lawsuit this month challenging the new program on legal grounds, saying mine operators are being denied “due process” rights when they are placed in the program based on citations that are under appeal at the review commission.
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