Coal Tattoo

MSHA made deal to help Massey file more appeals

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Gazette photo by Chris Dorst

Amid all the sound and fury over the huge backlog of coal industry appeals that the Obama administration says have tied MSHA’s hands in terms of tougher enforcement actions, one fascinating bit of information hasn’t gotten nearly the attention it deserves.

As many things about mine safety are, this tidbit was originally reported by Ellen Smith from Mine Safety and Health News, in this instance back in September 2009 (around the time MSHA was last considering whether to put Massey’s Upper Big Branch Mine on the road to tougher enforcement for having a “pattern of violations”).

Odd as it may sound, MSHA actually made a deal back in September 2006 to make it easier for Massey Energy lawyers to file even more appeals of enforcement actions. It was mentioned in a footnote in a ruling by the Federal Mine Safety and Health Review Commission (See Secretary of Labor, MSHA v. Rockhouse Energy Mining Co., 31 FMSHRC 847 (Aug. 11, 2009) ):

We consider the Secretary’s position in this case in light of the provisions of the “Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor – MSHA – Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries” dated September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter in which any Massey Energy subsidiary failed to timely return MSHA Form 1000-179 or inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a reasonable time. Such agreements obviously are not binding on the Commission, and the Secretary’s position in conformance with the agreement in this case has no bearing on our determination on the merits of the operator’s proffered excuse.

So, this deal was made in Sept. 2006, under the Bush administration. Ellen tells me that when she asked MSHA about it in late 2009, she was told it was the only such deal the agency had made with any coal company — and that it was canceled by MSHA in March 2009, two months after President Obama took office.

But specifically who made the deal? What MSHA lawyer did it, and who in agency management approved it?

Under what legal authority? How many citations did it allow Massey to fight after it had missed the legal deadline for doing so? Were any of them at the Upper Big Branch Mine?

My guess is that this deal with Massey might come up during today’s Senate committee hearing on Putting Safety First: Strengthening Enforcement and Creating a Culture of Compliance at Mines and other Dangerous Workplaces. According to his prepared testimony, Wes Addington of the Appalachian Citizens’ Law Center plans to mention it.

Perhaps curious lawmakers will demand some answers …