MSHA’s Joe Main urged to scrap ‘pattern of violations’ rule; mine safety lawyers say operators escaping tougher enforcement Congress intended

April 13, 2010 by Ken Ward Jr.

Mine Explosion

Tammy Hubbard, front, and Brenda Willis collect donations in downtown Whitesville, W.Va., on Monday, April 12, 2010. The women and other wives of miners were in town collecting donations for the families of the twenty-nine miners who died in the explosion at Massey Energy Co.’s Upper Big Branch mine in Montcoal, W. Va. a week ago Monday. (AP Photo/Amy Sancetta)

Two respected mine safety lawyers from Kentucky are urging MSHA chief Joe Main to take some swift action in response to the deaths of 29 miners at Massey Energy’s Upper Big Branch Mine in Raleigh County, W.Va.

In a letter sent yesterday, mine safety advocate Tony Oppegard and Wes Addington of the Appalachian Citizens Law Center asked Main to rescind MSHA’s existing  regulations governing the use of the “pattern of violations” enforcment tool.

We detailed in a Gazette story published today how Massey Energy used the appeals process — and MSHA’s own rules and internal policies — to escape being put on a pattern of violations, which would have kicked in much tougher enforcement at Upper Big Branch prior to last week’s explosion.

In their letter, Tony and Wes outline clearly the congressional intent behind the POV language in the Mine Act:

The Committee that drafted the “Pattern of Violations” provision stated that, “The need for such a provision was forcefully demonstrated during the investigation by the Subcommittee on Labor of the Scotia mine disaster which occurred in March 1976 in Eastern Kentucky. That investigation showed that the Scotia mine, as well as other mines, had an inspection history of recurrent violations, some of which were tragically related to the disasters, which the existing enforcement scheme was unable to address. The Committee’s intention is to provide an effective enforcement tool to protect miners when the operator demonstrates his disregard for the health and safety of miners through an established pattern of violations …

But, they say in the letter:

The fact that only one coal mine in the entire United States has been placed on a pattern under §104(e)(1) since the passage of the Mine Act in 1977 should make it obvious to MSHA that this provision of the law is not working. We believe that the Congress that enacted this important enforcement tool in 1977 would be stunned to know that it has only been used once in the past 33 years – despite the fact that miners continue to die at an unacceptable rate in our nation’s mines.

And, they conclude:

Indeed, the extensive and flagrant violation history of the Upper Big Branch mine makes clear that that mine should have been “placed on a pattern” long before the recent disaster. Any mine that accumulates almost 50 unwarrantable failure violations in a single year deserves the heightened scrutiny provided by §104(e)(1) of the Mine Act . The fact that Massey’s Upper Big Branch mine did not meet the criteria set forth in MSHA’s “pattern of violations” regulation is proof that the regulation contradicts the intent of the statutory provision. Had MSHA used this enforcement tool as Congress intended, the mine would have received the stricter scrutiny that might have prevented the disaster.

Should be interesting to see how Joe Main responds … his top deputy, Greg Wagner, had said last week that MSHA was looking at redoing the pattern of violations rules, but so far the agency hasn’t listed this on its rulemaking agenda. But this is exactly the kind of letter Joe Main used to write to MSHA when he was safety director of the UMWA.

4 Responses to “MSHA’s Joe Main urged to scrap ‘pattern of violations’ rule; mine safety lawyers say operators escaping tougher enforcement Congress intended”

  1. Bruce Boyens says:

    100% agreement with Tony and Wes. I wonder if they and you Ken find it sickly ironic that OSM inspectors had/have the right to shut coal mines on the spot if serious environmental violations are found and could do so and did during the interim enforcement era w/o having to either contact a superior or give the operator a warning letter to correct before action was t6aken. It appears that MSHA cannot immediately act on miner’s safety w/o calling “home” or begging for voluntary compliance.

  2. clay ton says:
    In newly disclosed video from an anti-union Labor Day rally last year, Blankenship told supporters he thinks the efforts of mine safety officials are “as silly as global warming.”
    Don Blankenship: “As someone who has overseen the mining of more coal than anyone else in the history of Central Appalachia, I know that the safety and health of coal miners is my most important job. I don’t need Washington politicians to tell me that, and neither do you. But I also know—I also know that Washington and state politicians have no idea how to improve miner safety. The very idea that they care more about coal miner safety than we do is as silly as global warming.”

  3. Shelby says:

    I’m hoping underground mining becomes more safer.Then, the surface “miners” can find jobs, Thousands of people have to use the water polluted by mountaintop removal, so it is a big issue,

  4. Jane says:

    Why can’t federal funds be used to retrain the mining workforce and use West Virginia as a laboratory for developing cleaner energy strategies?

    It isn’t just that Blankenship is a greedy, soul-less person who cares not one whit about the miners, the fact is mining, by it’s nature is both dirty and dangerous work. My grandfather died as a result of the silicosis he developed going into mines and setting explosives. The impact of that loss on my mother’s life is very hard to measure, but it is both profound and painful. Multiply that kind of pain by the number of children who just lost a parent, and that is a lot of pain.

    As for Blakenship, if there ever were a capital case, this is one, but of course, he probably won’t get anything but even richer when Massey buys him out. I bet Blankenship’s severance package will exceed everything paid out to the families who suffered a loss.

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