By Kimberly Kindy and David A. Fahrenthold
Tuesday, October 12, 2010; A1
A high-priority Obama administration push to unclog a backlog of contested mine safety citations is backfiring.
After a West Virginia coal mine explosion in April exposed a weak link in a system designed to identify safety violations, the government has spent $23 million to reform the system. A key objective: reducing a two-year logjam of citations under appeal in order to ensure more effective industry responses to possible hazards.
Instead, the list of unresolved safety appeals has grown to 18,100 cases, from 16,600 at the time of the disaster at the Upper Big Branch mine. The explosion killed 29 men.
The increase has occurred, safety experts said, because more citations are being issued, and companies are fighting back harder than ever. The result is that instead of revolutionizing mine safety in the wake of the worst mining disaster in 40 years, some experts said government officials have succeeded only in generating increased litigation.
"They've made the problem worse, and the impact inspections are now kind of a meaningless threat," said Celeste Monforton, a senior Mine Safety and Health Administration (MSHA) official in the Clinton administration, who is part of West Virginia's investigation into the April 5 disaster.
Nine men have died in U.S. coal mines since the explosion at the Upper Big Branch mine, a toll that has revealed serious shortcomings in the Obama administration's attempt to rein in the nation's most dangerous mines.
Administration officials said that the crackdown has worsened the crisis in the short term but that a growth in staffing from increased funding should eliminate the backlog.
Because the recent inspection blitz by the Labor Department's MSHA has focused on mines the agency considers to be the most high risk, many of the violations that inspectors have cited in recent months have been "significant and substantial."
Serious citations of that kind carry fines of thousands rather than hundreds of dollars and are twice as likely to be contested before the Federal Mine Safety and Health Review Commission. Mine operators are required to immediately fix specific problems found by regulators when they are cited, even if they intend to fight the citation. But the one-time fixes do not address systemic problems.
Mining company officials say they are fighting the citations more than ever because, they said, many of them are faulty.
"The violations in the law are open to interpretation by the inspector. If we think there has been a misinterpretation of the law, of course we challenge it," said Nicholas Deluliis, chief operating officer for Consol Energy, which owns one of the mines where a worker died in July. "We're not trying to gum up the system."
Companies said that, when the government has agreed to settle their cases for reduced fines, it is often a sign that the inspectors who wrote the citations did so in error.
Critics disagree. Rep. George Miller (D-Calif.), who sponsored the Miner Safety and Health Act that passed the House in July, says that mining companies are not only clogging the system but also using their influence to prevent meaningful reforms from getting through Congress.
"Right now, mine operators are not paying much of a price for being a repeat violator. They created this system, and they are continuing to game it. They don't want it to change," he said. "Clearly, the process in Congress has broken down in favor of the mine owners, the lawbreakers."
The lag time has also caused many cases to go cold. New lawyers hired by the Labor Department to tackle the backlog are finding that some of the inspectors who issued the citations are retired or that their memories, along with those of other witnesses, have sometimes faded and become unreliable.
The concern of some is that settlement offers made by Labor officials, criticized as too generous by commission judges in recent months, will continue to erode if cases can't be effectively prosecuted.Kentucky deaths
Even when mine owners are cited for hazards that might have directly led to the death of a miner, they often fight them, a Washington Post review of hundreds of federal records showed.
In Kentucky, state and federal officials had shut down parts of the Dotiki mine at least six times in the months leading up to the deaths of Justin Travis and Michael Carter. Each time it was because bolts that hold the mine's roof together had been spaced too far apart, records show.
On April 28, Travis and Carter - miners in their 20s - died under a collapsed roof.
Kentucky authorities who investigated the incident concluded in July that the mine operator, Webster County Coal, had failed to properly stabilize its roof. Federal regulators issued three citations, with fines totaling more than $20,000, after the incident, alleging the same roof problem.
Each of these federal citations is being contested by Alliance Resource Partners, Webster's parent company.
Company officials did not return calls seeking comment. However, in its Securities and Exchange Commission filing, Alliance officials said that the company disagrees with state and federal regulators and that its investigation concluded the fatal incident was caused by "unpredictable and unforeseen geological conditions."
Travis's father, Philip Travis, works in safety at the same mine. He said that he agrees with the company's conclusion. "It wouldn't have mattered if [an inspector] had been standing right there beside of them," he said. "It still would have happened."
However, John Whitfield, the attorney for Justin Travis's widow, Sandy Travis, said that in his more than 20 years of representing miners' families, his clients have repeatedly expressed frustration over the mine owner's ability to tie the system into knots with little or no change.
"It's just frustrating to see that it's citation after citation that are being made on these companies, and it doesn't seem to register. And we still have these tragedies," Whitfield said.Coal companies
Massey Energy, owner of Upper Big Branch, is at the top among companies contesting safety violations issued by the MSHA. It is fighting 39 percent of the 5,880 citations and 83 percent of the $6.9 million in fines it received from January to July, MSHA records show. Massey officials said in a statement that their contest rate last year was close to the national average of 34 percent and that it fights only citations it "deems to be without merit."
Consol ranks second, with a contest rate of 31 percent of 3,290 citations and 75 percent of $3.5 million in fines in the same period. And Alliance ranks third, with a contest rate of 22 percent for 2,467 citations and 67 percent for $1.7 million in fines.
Altogether, the companies that own the eight mines where workers recently died are appealing nearly 5,000 citations worth more than $13 million.
But fines have been slashed by 80 percent and even 98 percent in some cases.
For example, a Consol-owned mine in Pennsylvania was cited for the accumulation of damp loose coal along a conveyer belt, a potentially dangerous condition that can cause explosions. The mine had been cited for the same hazard 180 times over the past two years, records show. But its $11,306 fine for the most recent citation was cut to $207.
Federal Judge William B. Moran, in a July 12 order, rejected the settlement, saying that given the mine's "significant history of this class of problem at the mine, the drastic reduction proposed, without more explanation or justification, cannot be accepted." The case has been kicked back for the Labor Department to explain the 98 percent reduction.
Labor Solicitor M. Patricia Smith defends the settlement offers her office is making, saying they are no more or less than what her legal staff thinks it would get if it moved forward with litigation. "What we are doing is evaluating on the basis of costs and litigation risks, which is what lawyers do."Pilot program
The MSHA is hoping to reduce the number of cases that come to the commission by resolving them at the district level with trained mediators. Results from a pilot program in two coal districts will be reviewed next month by agency officials.
Also, the $23 million in emergency funding that Congress approved in May should help with the existing backlog. It has allowed the commission to add six judges and support staff and the Labor Department to hire 70 lawyers. The new staff members will work exclusively on contested cases filed from October 2007 to February 2010, and it is expected to take three years to eliminate them from the commission's dockets.
One wrinkle, commission officials said, is that they have not been able to boost staff to deal with the new cases. When Congress passed the special funding, no one anticipated the sudden, rapid growth of the past six months. As a result, the goal of having a smaller backlog by next year has changed. Now, the commission hopes to get back to its record high of 16,600 by fall next year.
"I wouldn't say there is frustration at this point," said Michael McCord, general counsel of the commission. "The commission is very determined to take whatever steps it can to attack the backlog. To the extent the backlog and contest rate goes up, it will make it more difficult."
But some miners and their families are frustrated. "This isn't right. They need a system that works faster," said Joyce Brown, widow of miner Thomas Brown, 61, who was killed in a mining accident in July in the Willow Lake Portal mine in Illinois.
"Time is very important right now," Brown said. "The risk of explosions is much higher in the winter."