2010 July Archive | Coal Tattoo

Really, I thought it was a pretty simple request. All I wanted was for the U.S. Mine Safety and Health Administration to give me copies of the hearing transcripts and the public comments submitted when the agency wrote its current “pattern of violations” regulations.

But it turns out that — despite what agency spokeswoman Amy Louviere said was an “exhaustive search” — no one from MSHA can find the records …

Now, you remember the “pattern of violations” program. It’s the system through which MSHA can take tougher enforcement actions against mine operators who repeatedly violate health and safety standards. The program has come under much more intense scrutiny since the April 5 explosion at Massey Energy’s Upper Big Branch Mine, a repeat violator that MSHA couldn’t seem to figure out how to put onto a pattern of violations order.

One of the main issues surrounding the pattern of violations system is MSHA’s claim that mine operators are thwarting the system by repeatedly appealing citations and fines, clogging up the Federal Mine Safety and Health Review Commission’s docket and postponing tougher enforcement through POV orders.

We’ve run through before the questions about some of MSHA chief Joe Main’s statements regarding his promised plan to reform the POV system.

As I’ve been reporting this issue, one of the things I was curious about was what exactly MSHA’s rules say and how they came to say that. In fact, the rules do state that MSHA, in determining whether a mine has committed a pattern of violations, will only consider citations and orders that “have become final,” meaning if they were appealed those cases have been resolved.

But it turns out that, back in 1989 and 1990, when MSHA wrote these rules (Congress gave MSHA the pattern of violations tool back in 1977, but the agency didn’t get around to writing rules for more than a decade, but that’s a different story) some interested parties warned that this language about “final orders” would be a problem. I’m quoting here from MSHA’s July 31, 1990, Federal Register notice announcing its final rule:

Under paragraph (b) of the final rule, MSHA will consider only final citations and orders when identifying mines with a potential pattern of violations. Some commenters objected to this approach in the proposal, while others agreed. The commenters who objected stated that there is no support in the legislative history for consideration of only final citations and orders. They were concerned that operators would be motivated to challenge every S&S citation and order, thus delaying application of the pattern criteria. The commenters who agreed with the proposed approach requested that MSHA consider only final citations and orders issued after the effective date of the pattern rule. These commenters stated that the decision to contest the majority of citations and orders is made by operators on the basis of a business decision that weighs the cost of appeal against the payment of the fine, rather than strictly on the merits of the citation or order. According to the commenters, the use of citations and orders issued prior to this rule to support a pattern notice would not have been a factor in the operator’s past evaluation of whether to challenge these actions.

MSHA responded:

The final rule specifies that MSHA will consider only citations and orders issued after the effective date of the rule that have become final to identify mines with a potential pattern of violations. MSHA believes that this approach will provide clear notice to mine operators of which citations and orders will be considered in identifying mines with a potential pattern of violations. Proper notice of which citations and orders will be used to identify mines with a potential pattern is of paramount importance given the extraordinary nature of the pattern notice.

So, MSHA was warned and these warnings turned out to be correct. But I wondered who submitted these comments. I wanted to read the full record, to understand MSHA’s reasons for writing the POV rules the way it did.

Two weeks ago, I asked MSHA for the public comments and transcripts of public hearings (one was held in Pittsburgh and one in Denver). I didn’t hear anything back, so I asked again yesterday.

MSHA’s Amy Louviere called me back, and she put on the phone Patrica W. Silvey, MSHA’s longtime standards director (she held that job back in 1990 when this POV rule was written). Silvey told me:

We don’t have any records. We’ve looked.

Generally, MSHA would keep such records for at least five years, and then send them off to government archives, where they would be stored for at least 10 years. But even after that, Silvey said, documents that are considered “permanent records” — such as the hearing transcripts I requested — are kept, basically forever. Updated: Silvey clarified that she left the office of standards in 1998 and returned in 2006, and that MSHA believes the records in question here were sent to the archives sometime in the 2001-2002 timeframe, so she was not head of the office when that transfer was to have occurred.

But in this case, nobody can find the records of MSHA’s POV rulemaking.

It will be interesting to see how this is explained when a final report is issued by the Labor Department’s Inspector General, which is investigating MSHA’s handling of the POV program and has already criticized the agency for randomly removing companies from the list of those that might need tougher enforcement.

This just in:

Senators Jay Rockefeller and Carte Goodwin (both D-W.Va.) today unveiled mine safety legislation to honor the fallen miners at Upper Big Branch and to promote a culture of safety in mining and other industries.

Senator Rockefeller previously joined Senate Health, Education, Labor and Pensions (HELP) Committee Chairman Tom Harkin in unveiling a draft proposal in June. Similar legislation has been introduced in the House of Representatives by Congressman Nick Rahall and House Education and Labor Chairman George Miller.

The bill is posted here, with a legislative summary here. Recall that the House Education and Labor Committee passed its version of a mine safety bill last week.

Sen. Rockefeller said today:

I’ve fought my entire career to make sure that hard working Americans can go to jobs without fearing for their safety and I will not stop until this is a reality. Before his death, Senator Byrd and I worked together to develop the beginnings of this workplace safety legislation—which includes significant improvements for our coal mines. Even as the investigation into the Upper Big Branch mine continues to move forward, we owe it to the families, and to the miners that still get up and go to work each day, to find real solutions—fixing the process for safety enforcement at mines with repeated violations, providing MSHA with strong safety tools and holding them more accountable, and protecting our dedicated miners who speak up when they know safety measures aren’t being handled correctly.

Sen. Goodwin said:

As a lifelong West Virginian, I know how much coal mining means to our state and how important it is that our miners have a safe workplace. We were all devastated by the disasters that occurred at the Sago and Upper Big Branch mines. From my role in helping our state enhance its mine safety laws after the Sago accident, I know that Senator Rockefeller and the late Senator Byrd have worked tirelessly to create legislation to tighten safety standards and to make sure that our federal agencies have the resources necessary to the enforce mine safety laws currently in place. I am proud to take my experience on this issue and continue to fight for appropriate measures that will make sure that our miners operate in a safe work environment.