By Steven Mufson, Kimberly Kindy and Ed O'Keefe
Washington Post Staff Writers
Friday, April 9, 2010; A01
The U.S. Mine Safety and Health Administration has ordered the evacuation of miners from parts of the Upper Big Branch coal mine 64 times since the beginning of 2009 because of safety violations, but federal regulators said the mine did not show the "pattern of violation" that would have allowed them to take harsher measures.
The orders to withdraw miners from the site, where at least 25 workers died in an explosion this week, included one for "imminent danger" because miners had to wade through 48 inches of water in one section, records show.
Tony Oppegard, a former federal regulator, said the number of safety violations is "off the charts." Oppegard, who represents miners dismissed for refusing to do unsafe work, added: "You're past the point of a red flag and you're really in a crisis situation." Last night, MSHA said that in the past year, the Upper Big Branch mine exceeded national averages in eleven citation categories and that for the most serious type of safety violation the mine had more than 11 times the national rate.
There were also problems with the mine's four-mile-long ventilation system. Even though it won the approval of federal regulators last October, it was shown in a test in March to be circulating less than half the volume of air intended to keep levels of combustible coal dust and methane within a safe range.
In an incident in January, the federal safety administration found that for three weeks a foreman did not take action after a citation noted that air was flowing the wrong way in the ventilation system.
The new details about the troubled safety record of the West Virginia mine emerged as experts sought to explain what might have caused the explosion Monday -- and why the Mine Safety and Health Administration did not take tougher action given the rising number of citations there.
President Obama will meet next week with Labor Secretary Hilda Solis and Mine Safety and Health Administrator Joe Main to get their assessment of the cause of the nation's worst coal mining disaster in more than a quarter-century and their recommendations on preventing accidents.
At the mine, owned by Massey Energy, rescue workers waited most of Thursday for holes to be drilled to vent explosive gases so that teams could resume their search for the four miners still unaccounted for.
"This is still a rescue mission to us," said Massey's chief operating officer, J. Christopher Adkins.
The time spent by MSHA inspectors at the Upper Big Branch mine has increased every year since 2007, the agency said. Although the law requires MSHA to inspect underground coal mines at least four times a year, it can boost the frequency if needed.
This year, MSHA enforcement personnel have already spent 51 days and have logged 803 hours inspecting the Upper Big Branch site. In 2009, MSHA enforcement personnel logged 180 days and 2,999 hours at the Upper Big Branch mine.
"It's not only not normal, it's not acceptable," Oppegard said. "In my view, that mine should have been subjected to more aggressive enforcement actions than were taken by the agency."
But the safety administration said Massey Energy took enough corrective actions to keep the mine from more severe disciplinary action. In the instances of ventilation problems earlier this year, for example, "corrective action was taken by the mine operator to abate the violations," a spokesman for MSHA said.
In 2007, the agency had declared that the Upper Big Branch mine had fit into a "potential pattern of violation," a prelude to tougher enforcement measures, including a shutdown or court injunction.
But it said the mine "met the legal criteria to be removed from that status by reducing their number of serious violations shortly after being placed in that category."
Main said Wednesday after a news conference that he had not looked in detail at the Upper Big Branch violations but that there were mines with more violations.
"One would expect the large mines to have more potential for violations," Main said. He said the mine's number of citations might be related to an increase in federal inspectors. The number of inspections has gone up 20 percent in the past few years.
Asked whether Upper Big Branch is a particularly worrisome mine, Main said, "There's a lot of mines with a lot of violations, and all of them worry me."
But many mine experts said the Upper Big Branch's record is much worse than the records of comparable mines. Ellen Smith, owner and managing editor of Mine Safety and Health News, said that she compared its record of serious violations -- 48 in 2009 and 10 this year -- to three other mines, and that Upper Big Branch was by far the worst.
The well-regarded Deer Creek mine in Utah had one such violation in the past 15 years; the West Ridge mine in Utah, whose owner has complained about MSHA inspections, had six last year; and the Jim Walters Resources Number 7 mine in Alabama, with three times as many miners underground, had two such citations.
The MSHA said Thursday night that the Upper Big Branch's most common citations were for faulty mine ventilation, high accumulation of combustible materials and inadequate protection from underground roof falls.
The agency has the power to seek federal court orders or injunctions against mines showing a pattern of violation and posing a hazard to the health and safety of miners. The agency has never used that authority, officials said.
Sen. John D. Rockefeller IV (D-W.Va.), who has referred to Massey as a "rogue" operation, said Thursday that he would push for legislation to crack down on "repeat offenders" with a high number of violations. His greatest concern is what he called a loophole in the law that allows mining operators to contest violations for years, allowing them to avert being placed into a "pattern of violation" category.
Although the Upper Big Branch Mine was placed into a "potential pattern of violation" category in 2007, it met the legal criteria to be removed from this status within months, in part because contested violations had not been resolved. Massey is still contesting 352 alleged violations at the Upper Big Branch mine, some dating to 2007. Late Thursday, agency officials could not yet give an average number, but Rockefeller and mining experts said Upper Big Branch's is unusually high, as much as double the typical number for an operation of its size.
"It's simply playing with the lives of coal miners in a very cynical way and yet, it's our fault in Congress that we have not foreseen that loophole," Rockefeller said Thursday on MSNBC.
On average, about 2,200 violation contests are filed annually, but the Federal Mine Safety and Health Review Commission has a backlog of more than 16,000, records show.
The number of citations rose after the accident at the mine in Sago, W.Va., and the passage of the 2006 Miner Act, which increased penalties and triggered an uptick in contests from about 200 a month to 900 now.
Staff writer David Fahrenthold in Montcoal, W.Va., contributed to this report.