The blog post yesterday from our friend Rep. George Miller, D-Calif., understandably focused on the clear good news in a new report from the Federal Mine Safety and Health Review Commission and the Department of Labor:

Efforts to reduce the backlog of the thousands of health and safety appeals by mine operators trying to avoid tougher penalties is beginning to work, according to a new report from the Department of Labor sent to Congress last week.

The department said that the number of pending health and safety cases dropped to 17,101 at the end of July 2011, slightly lower than the 17, 591 when extra funding was approved a year earlier and despite having to deal with a flood of 11,412 new appeals.  This is the first time the backlog has gone down year to year since 2004.

But the figure that jumped out at me from the chart contained in the report was that the number of new appeals cases filed by mine operators with the commission to challenge MSHA citations and fines appears to have  continued to rise. Cases filed after July 2010 are up from 8,108 last year to 9,689.

As Rep. Miller also noted in his blog post on this topic:

…Despite this progress, incentives still remain for mine operators to appeal nearly every penalty regardless of merit.

Reading through the Commission/DOL report, I had to wonder if one of those incentives was the ability to get the agencies to settle cases for lower amounts of fines, simply by burying government lawyers in appeals of dozen and dozens of citations and penalties. We’ve written about this issue before here,  and here. And the new Commission/DOL report practically brags about “global settlements,” without giving us much context as to the size of any reduction in penalties that was involved:

In particular, SOL’s ability to coordinate the litigation and preparation for trial of a large number of citations made it possible to negotiate global settlements involving significant numbers of citations and in some cases multiple dockets. One of the backlog reduction offices, for example, was able to reach a proposed settlement with a coal mine operator for several dockets involving more than 425 citations for over $520,000. A settlement of 17 dockets involving just under 200 citations was negotiated for over $280,000. Another global settlement of 12 dockets involving a single operator – and over 225 citations – was negotiated for over $60,000, representing a 20% reduction from the original assessed penalties. Another office proposed a global settlement of six dockets and 88 citations with a total recovery of over $110,000; that settlement, if approved by Commission judges, would affirm 84 of the original 88 citations.

Focused litigation and trial preparation led to case resolutions, with a number of large proposed settlements negotiated on the eve of trial. In one matter, after over 100 citations and orders were set for hearing in August 2011, and SOL attorneys noticed depositions in the matter, the coal mine operator settled for over $200,000, or 71% of the proposed penalties. In another matter, after extensive settlement negotiations and just two weeks before trial, the parties proposed resolution for all 157 citations at issue for a total penalty amount of over $110,000. All but 2 citations remained unchanged, and the operator agreed to pay just under 70% of the original assessment.

It’s also important to remember that, despite the focus on this particular issue by some mine safety advocates (and by the Obama administration), the high rate of appeals by Massey Energy didn’t take away all of the tools MSHA had in its toolbox to keep the Upper Big Branch Mine Disaster from happening. It was MSHA’s inability to properly screen the mine for a Pattern of Violations that kept this particular tool from being used.

And MSHA had a variety of other tools at its disposal that it simply chose not to deploy at the Upper Big Branch Mine. MSHA could have taken Massey to court, seeking a federal judge’s injunction to shut down the mine. The agency could have issued its most serious monetary fines, flagrant penalties, for the mine’s repeated serious violations.

MSHA is said to be finalizing its report on the Upper Big Branch Mine Disaster. But we’ve heard precious little about the progress on its “internal review” of agency actions prior to the April 2010 explosion. What happened to public hearings? Where’s the congressional oversight of MSHA’s role in all of this?