By Kimberly Kindy
Washington Post Staff Writer
Tuesday, January 4, 2011; A01
When Labor Secretary Hilda L. Solis appeared before a gathering of coal mine owners in the fall, she signaled a sharp change in the relationship between the mining industry and the federal agency charged with protecting workers.
Inspectors from Labor's Mine Safety and Health Administration, she said, will serve as "cops on the beat," patrolling mines to find safety violations. New regulations will force "bad actors to clean up their act." And owners who fail to clean up safety problems will face federal shutdown under a 33-year-old provision that has never been used before, Solis said.
With memories of the nation's worst coal mining accident in decades still fresh - 29 miners died at the Upper Big Branch site in West Virginia in April - the administration is challenging coal companies to either change their tactics and voluntarily improve safety or face the harshest sanctions the government can impose.
The new push to strengthen enforcement is already encountering resistance, according to longtime watchers of the coal industry, as companies employ the same legal and political strategies they've honed over decades to block federal reforms.
In November, the MSHA went to court to try to force Massey Energy, owner of Upper Big Branch, to fix problems at another mine, which had accumulated 1,952 safety violations. The case was the first in which the MSHA had tried to shutter a mine and force a safety overhaul by using the "pattern of violations" provision (POV) approved by Congress in 1977.
But before the court ruled, Massey once again sidestepped the MSHA, saying it would idle the mine on its own, thus keeping the federal government from taking control of the mine and from interfering with the company's day-to-day operations.
The MSHA says the legal action against Massey is a sign of things to come. Last month, the agency listed 13 mines in danger of shutdown under the POV provision. Massey owns three of them, more than any other operator.
After every major mining accident, said Rep. George Miller (D-Calif.), author of a now-stalled coal safety bill, "there is great emotion that pours out for families, for their tragedy, their children and their community. Everyone pledges they will make it safer. But the mine owners, they just wait and let time work and let time erode emotion, and then they come to Washington. They tell members they can't do business this way. They can't make profits this way."
Solis challenged mine owners to stop their long history of resistance. "It's easy to dig in your heels and say it's 'us against them,' the united front of the mining industry against the legislators and the regulators," she said. "It's what we've seen repeated, time and time again - a disaster happens, the public is outraged, Congress and the regulators propose reform, and industry fights back."
Joseph A. Main was still awaiting Senate confirmation as President Obama's MSHA director in February 2009 when Don Blankenship, then president of Massey, the nation's sixth-largest coal company, asked for a meeting.
An industry stalwart who took the helm of Massey in 1992, Blankenship had effectively guided his company through serious accidents and the regulatory crackdowns that followed. In most tangles with federal regulators, Blankenship - a modern-day version of the old-fashioned coal baron - had held the upper hand.
Blankenship said he met with Main to show the company's willingness to cooperate.
"We discussed the fact that we wanted to be open with them and be their safest coal company, and we wanted to work together," Blankenship said in an interview at Massey offices near Charleston, W.Va., "Nothing came out of that meeting. It was disappointing."
Main, a former miners union executive and mine safety consultant, knew of Massey's troublesome safety record and its reputation for resistance. Two months later, after the explosion at the Upper Big Branch mine, the regulator and the company executive found themselves on a collision course.
The Upper Big Branch explosion led to the usual calls in Congress for mine safety reforms, with hearings documenting Massey's long record of violations at the mine and the ineffectiveness of the MSHA's regulation. Main ordered his inspectors to go into mines for unannounced inspections and liberally cite owners for safety issues.
Main found Massey's mines especially worrisome.
"As we moved forward after Upper Big Branch, and we started to identify mines that were of concern, a lot of Massey mines showed up on the list. It numbered in the teens," Main said in an interview. "We went into one of these mines recently, and the air was so thick with coal dust, you couldn't see the miners who were working there."
With Massey, Main inherited a regulatory challenge that had been building for years. The company's influence had peaked during the presidency of George W. Bush, whose campaign had substantial financial backing from Massey executives. It won a major concession when Bush lifted restrictions on mountaintop removal - the practice of blowing off mountain tops to expose coal seams. Massey is the nation's largest producer of coal through the controversial technique.
Bush's MSHA chief, Dave D. Lauriski, cut the number of mining inspectors by 9 percent and trained the remaining inspectors to think of themselves as "compliance assistance specialists." Citiations for major safety issues plummeted.
Massey's approach to federal regulation has been notable for two tactics that, according to critics, allow the company to thwart or skirt safety requirements. First, Massey has persuaded regulators to forgo safety rules on a case-by-case basis. Second, the company routinely contests federal citations in a manner that makes it virtually impossible for the government to force quick safety overhauls in the nation's most hazardous mines.
Under Blankenship, Massey had mastered the art of the regulatory waiver, a way to legally circumvent federal mining laws. The MSHA has approved 30 petitions from Massey to operate its mines outside of safety mandates, more than for any other company. Most were in the past decade.
Eighteen were granted during Blankenship's tenure, five under the Obama administration.
The waivers allow Massey to mine through gas wells, to construct escapeways lower than the legally-mandated five feet and to create fewer ventilation channels to provide miners with clean air.
Massey officials say that many of their mines are old and that different approaches are needed to continue operation. In each petition, Massey used the same language to assure the MSHA "that the proposed alternative method would provide at least the same measure of protection as the mandatory standard."
But the United Mine Workers' safety director, Dennis O'Dell, and President Bill Clinton's MSHA director, J. Davitt McAteer, said the waiver system is one of most dangerous and most exploited loopholes in mine safety law. MSHA mine inspectors and district managers do the on-the-ground reviews of the requests and make the recommendations to agency headquarters. Most of the inspectors and managers come from the industry, O'Dell and McAteer said.
"These are their friends who are coming to them," McAteer said. "And these districts have been run as fiefdoms since the 1920s. You are in Washington, and you don't know the condition of the mine. It's difficult to call things off by the time it arrives on your desk."
Adding to the pressure, he said, members of Congress and their staffs also call and push for the waiver petitions to be approved.
After two men died in 2006 as the result of a conveyor belt catching fire in Massey's Aracoma Alma Mine in Logan County, W.Va., members of Congress questioned why the MSHA had not used its toughest enforcement tool - beginning a crackdown that could close resistant mines after a POV finding.
The reason was fairly simple, although Congress might not have been aware of it. Years earlier, the industry had made it almost impossible to enforce.
In a 1989 hearing in Denver, where the MSHA took testimony from stakeholders to finalize enforcement rules for the POV, representatives of the coal workers union and the industry butted heads over how safety violations should be counted in establishing a pattern under the law.
The union argued that the MSHA should count against a company all "significant and substantial (S&S) citations" - including those still under appeal. Linda Raisovich-Parsons, a UMW safety director, warned that "legal challenges can drag on for years" as companies resist paying fines.
The industry pleaded for fairness. John Caylor, then a safety manager with Cypress Coal, said there was no attempt by companies "to avoid a pattern. Such comment is not realistic." (Caylor later became Lauriski's deputy at the MSHA.)
The MSHA sided with industry. Contested citations would not count toward the pattern. As long as they were still in the contested category, the government would have a much harder time proving the pattern of violations needed to give federal regulators the authority to order swift safety reforms.
Massey led the charge in contested citations. Under Blankenship, it appealed more than any other company, records show, leaving the MSHA overwhelmed and unable to work through the backlog.
To cope, Labor lawyers forged an unusual agreement with Massey in September 2006. They asked the company to hold off contesting cases until agency lawyers had determined the potential financial penalty for each violation. Under the deal, Massey was allowed to contest citations long after the 90-day deadline had passed.
No other company was offered this deal, Labor and MSHA officials confirmed.
In response to questions from The Washington Post, the solicitor's office for the Labor Department said that at first the agreement lightened the department's caseload - but the relief was short-lived. Soon, Massey revived its practice of immediately contesting violations, bogging down the system with paperwork.
Shortly after Obama took office, the Labor Department rescinded the arrangement, saying that Massey had "started using the agreement for purposes beyond what it was intended." Massey said in a written statement: "We entered into an informal agreement to alleviate these burdens, while still protecting our rights."
The company also said it does not believe it was abusing the agreement, which it entered at the government's request.
For some at the front lines of coal mining reform, Massey's tactics fit a pattern of industry resistance that goes back decades. Ken Hechler, who is 96, has pushed for industry accountability since his days as a West Virginia Democratic congressman, when he was one of the architects of major 1969 mine safety reform.
He remembers being confronted by a group of widows in 1968 just outside the mouth of West Virginia's Consol No. 9 mine, where 78 miners died in an underground explosion.
"They stuck their finger in my chest and said: 'You're a congressman. Why don't you DO something?' " Hechler said in an interview. "It was a defining moment. People were fed up."
Since then, he has joined the protest outside Massey operations in West Virginia to oppose its practice of mountaintop removal. And he watched in horror as the bodies were hauled out of Upper Big Branch, a mine with such an extensive safety violation record that he does not understand why regulators did not step in.
None of it would have happened, he says, if regulators had enforced the law.
"Those 29 men would be alive today," he said.
Much of Massey's resistence, safety advocates contend, was guided by Blankenship, who retired Friday. The company aggressively fought the MSHA until the end of his term, even hiring Bush-era MSHA chief Lauriski as a consultant.
Safety advocates say Massey has an opportunity with Blankenship's departure to change the company's image.
Yet they worry that once the impact of the Upper Big Branch disaster wears off, the coal industry will again find a way to unravel the effort to beef up enforcement.
"They will. They always do, until someone gets killed again," said Stanley Sturgill, an MSHA inspector who retired last year.