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Mines avoid crackdowns by challenging safety citations

By Kimberly Kindy, Steven Mufson and Ed O'Keefe
Washington Post Staff Writer
Saturday, April 10, 2010; A01

A surge in the number of challenges to mine safety citations has clogged a federal appeals process, allowing 32 coal mines to avoid tougher enforcement measures last year, government safety officials said Friday.

Five of those mines are owned by Massey Energy, which is contesting more federal safety fines than any other coal mining company in the nation, according to data and federal officials. By contesting the citations, the 32 mines were able to avoid falling into a "potential pattern of violation" category, which would have brought closer scrutiny and moved regulators a step closer to the ability to restrict or shut down operations.

In many cases, those mines would have been at greater risk of penalties if regulators at the Mine Safety and Health Administration (MSHA) later found even a single "significant and substantial" violation of safety standards. Massey's Upper Big Branch mine in West Virginia, where at least 25 miners died in an explosion on Monday, had an unusually large number of those violations, including 54 in the past 12 months, a rate 11 times the national average.

Federal regulators have never sought to shut down an entire coal mine, and all companies have the right under law to appeal mine safety citations. But lawmakers are taking a new look at the process and whether it is paralyzing the safety agency's ability to enforce standards and prevent accidents like the one this week.

The backlog of contested citations has grown since the 2006 Mine Improvement and New Emergency Response Act boosted the number of inspectors, stiffened fines and toughened safety regulations for the nation's coal mines, inadvertently overloading the Federal Mine Safety and Health Review Commission, which has a backlog of more than 16,600 contested cases. The commission's judges are each handling more than 900 cases a year, compared with the 175 a year typically handled by judges at the Occupational Safety and Health Administration, which oversees other workplaces. Two-thirds of penalties are being litigated, according to the House Education and Labor Committee.

In operators' favor

The logjam works to the advantage of mining operators. When weighing whether to put a mine in the pattern-of-violation category, federal regulators cannot count any contested violation, and they may consider only violations that have occurred within the past 24 months. Yet cases at the commission are taking an average of 27 months to resolve, according to data provided by MSHA to the labor committee.

The Miner Act also increased penalties to encourage safer practices, but the effort backfired because it increased the incentives for companies such as Massey to contest violations and reduce fines. The act instituted a new penalty formula that drives up the price of fines as the number of violations grows. The average cost for a fine in a company's commission dockets, which sometimes includes multiple violations, shot up from $5,172 in 2006 to $14,157, commission records show.

"The hope and expectation was that operators would comply, rather than leave themselves vulnerable to the increased penalties. Instead, a lot of operators have opted to contest every citation, leading to the backlog at the commission," said Judy Rivlin, associate general counsel of the United Mine Workers of America.

When the backlog started to grow, agency lawyers started negotiating with company attorneys to settle fines. Currently those talks result in a 47 percent reduction in fines on average. Records show that Massey has settled 676 violation cases, paying out $363,197 instead of the $427,795 that was originally assessed.

"From an economic standpoint, it makes more sense to contest the violations," said Michael McCord, commission general counsel.

Some coal experts said that Massey's Upper Big Branch mine still fits the pattern-of-violation test and that MSHA should have taken tougher enforcement measures. James Sharpe, editor of "Sharpe's Point," a mine safety newsletter, argues that the mine met the tests for such classification, including the number of significant and substantial violations, "elevated enforcement" actions and an unusually high rate of citations. "There were so many of these that they would meet the criteria," Sharpe said, singling out the mine's citations for failure to control combustible coal dust. "Obviously the ventilation system was inadequate," he said.

But sources involved in congressional oversight said Massey's Upper Big Branch mine failed to meet one criterion because of the citations it was contesting.

"If cases are stuck for months or years at the review commission, MSHA cannot impose stronger penalties for the worst mine operators," Rep. George Miller (D-Calif.), chairman of the labor committee, said at a hearing in February on the backlog issue.

Two more judges are scheduled to start working at the review commission April 26, and the commission has a budget to expand the number of judges to 18. But McCord said 28 would be needed to deal with the backlog.

J. Davitt McAteer, head of the Mine Safety and Health Administration during the Clinton administration, said the issue can create dangers at mines. "Right now the inspector walks in and says, 'I'm going to issue this paper,' " he said. "You are the mine foreman. You say, 'Issue anything you want. Won't make any difference; I'm turning it over to the lawyers, and they will jam it up in the system in Washington. You won't ever see a dime.' It goes into the paper-shuffle world away from safety."

Because companies don't pay fines for contested citations, Massey has not paid more than $1.1 million in penalties for the 352 violations it is challenging, records show.

The most challenges

Figures show that Massey tops the coal industry in challenging citations. Last year, Massey contested 34 percent of its alleged violations, compared with the national average of 27 percent that year. Massey is contesting violations valued at $10 million, a total of 11.2 percent of all the contested violations before the commission. The second-highest is CONSOL Energy, with violations totaling $7.3 million, representing 7.8 percent of contests before the commission.

Congressional sources said lawmakers seeking to reform the safety process would look again to the S-MINER Act, a measure proposed in 2007 that narrowly passed the House but did not come to a vote in the Senate. That bill would have given MSHA greater subpoena and enforcement powers, set stricter limits on combustible coal dust levels and made it harder for mine operators to avoid being labeled as having shown a pattern of violations.

In testimony to the House subcommittee on workforce protections, the National Mining Association said that "to impose further legislation before the full impact of the original MINER Act can be comprehensively measured is premature."

Staff writers David Fahrenthold in West Virginia and Lori Montgomery and staff researcher Lucy Shackelford contributed to this report.

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