Why is it OK for mine operators to break the law?

May 16, 2014 by Ken Ward Jr.

It’s seems pretty apparent that political staffers these days have press releases ready to go when there’s a coal-mining death. Elected officials call the deaths a tragedy, urge prayer for the families, etc. Press agents can just insert the dates, companies and names of the miners. But it’s also getting so that media outlets can just plug in the company name and mine, and then update the numbers for a story that basically says, “Mine where worker killed had history of violations.”

EricLeggAR-305169984.jpg&MaxH=250&MaxW=300At least that’s the way it seemed after Monday night’s terrible coal outburst that so needlessly claimed the lives of coal miners Eric Legg (far right) and Gary Hensley down in Boone County at Patriot Coal’s Brody Mine No. 1. Media outlets around the country, armed with this thing called “Google”, were pretty quickly able to throw something into their stories about how the U.S. Mine Safety and Health Administration had put Brody on a “pattern of violations” because of its repeated safety problems.

Now it’s important to remember that, despite some suggestions to the contrary, Patriot’s appeal of this POV designation hadn’t delayed MSHA’s enforcement actions under that POV process.  MSHA spokeswoman Amy Louviere told me that the POV had led to 69 closure orders for parts of the Brody Mine since it was issued back in October 2013.

Over at NPR News, Anna Boiko-Weyrauch and Howard Berkes put together a blog post that offers a bit more substance on what this POV status means — and more importantly what it doesn’t mean. Their piece on NPR’s The Two-Way was headlined, Regulators Couldn’t Close U.S. Mine Despite Poor Safety Record:

The West Virginia mine where two workers were fatally injured on Monday consistently violated federal mine safety laws, but federal regulators say they were unable to shut it down completely …

NPR’s review of data from MSHA reveals serious safety issues under Patriot management that put miners at risk of injury or death.

From 2013 on, MSHA cited Patriot’s Brody No. 1 mine:

— 40 times for highly negligent violations of 18 mining standards, which inspectors determined could lead to the deaths of coal miners.

— 39 times for allowing combustible materials, such as coal mine dust, to accumulate, which can fuel explosions.

— 22 times for failing to properly inspect the mine before workers began shifts. These “pre-shift examinations” are designed to spot and correct safety hazards before miners are put at risk.

— 20 times for failing to properly ventilate the mine for methane gas and coal mine dust, which can ignite and explode. These violations were deemed “significant and substantial,” which MSHA defines as violations that are reasonably likely to result in serious injury or illness.

— 20 times for significant and substantial violations for failing to control the roof of the mine to prevent rocks from falling during mining.

— 532 times for violations overall. Of those, 253 violations were characterized as significant and substantial. High negligence was cited for 68 violations. And 80 were for circumstances that violated MSHA’s “Rules to Live by,” which identify factors that have been common in mine disasters, explosions and fatalities.

But as the NPR piece explains:

Despite the threat to miners, federal regulators say they do not have the authority to simply close the mine.

MSHA failed to use an even tougher tool at the Brody mine. The agency has the authority to seek a federal court injunction that would place a mine under the supervision of a federal judge. The judge could then order the closure of the mine if its owner failed to fix chronic safety problems.

But in the 40 years it has had this authority, MSHA has used it only once — in 2010 against Massey Energy’s Freedom Mine No. 1 in Kentucky. Massey then closed the mine.


Mine Explosion Congress

So is MSHA going to get into gear and use this power to seek federal injunctions against mines like Brody? NPR reported:

Kevin Stricklin, MSHA’s chief of coal mine safety, told NPR, “Court injunctions take forever in some cases.” Instead, the agency decided to deem the mine a pattern violator, he said.

I asked Stricklin’s boss, MSHA chief Joe Main (above) , that same question on Wednesday, and he sure didn’t sound too enthusiastic about taking mine operators to court under Section 108 of the Mine Act anytime soon:

We haven’t said that we’ll never use the 108 tool again. It is a protracted process that requires a lot of preparation and work getting a case made … [The Freedom Energy case] was a lot of work, and using a process that is far different from our ability to use our current tool bag. Whether we use it again, that’s something that is yet to possibly happen, but I can tell you  we’re going to use all of the tools in our tool bag when we see that the tools that are not working are not working.

Main also pointed me to some of his previous congressional testimony, calling for changes in the 108 process:

The current law does not have a “quick fix” to the safety of mines like the Freedom Energy Mine, where MSHA for the first time ever sought an injunction for a pattern of violation under section 108 of the Mine Act to change a culture of non-compliance that threatened the safety and health of the miners. While MSHA was successful in compelling the mine to implement additional safety and health protections as a result of using section 108(a)(2), the current statute could be simplified to help MSHA adequately protect miners. The lesson learned is this: the litigation process using the existing tool may be slower than needed to protect miners, and new legislation should consider language that clearly provides the Secretary of Labor with sufficient authority to act when she believes protecting miner safety and health requires immediate action.

On some level, though, has MSHA really tried to use the 108 injunction process often enough to really know how effective it might be? Are lawyers in the solicitor’s office nearly aggressive enough in trying to quickly put such cases together when a problem mine is brought to their attention by diligent MSHA officials? Is complaining that the process is too cumbersome simply a tactic to point attention at Congress, and away from MSHA’s terrible record in trying to use this tool over many, many years?

In some ways, I’m not sure it really matters. This whole frequent exercise of looking at a mine’s safety record and comparing to national averages or looking for trends reminds me of how I used to heard from one particular coal industry public relations official whenever his company had a death, and I had noted the hundreds of violations cited at that mine the previous year. This otherwise very reasonable public relations official would demand some context — saying that multiple hundreds of violations in a year really wasn’t so bad for such a big mine, and certainly not compared to some other company’s record at a similar mine. I would respond that I thought the real story was that our society thinks it’s OK for coal mines to routinely violate the law.

I wrote about this a few years ago for Harvard’s Nieman Foundation, in a blog post about how the media might reconsider its coverage of mining accidents. The piece was called Why is it OK for the coal industry to break the law? I wrote:

Beneath it all of this seems to be this assumption that violations of federal mine safety and health laws is acceptable – that the coal industry is simply unable to comply with all of the rules that history has taught are needed to protect what Congress declared to be the coal industry’s “most previous resource – the miner.”

I fall into this trap, too. It’s hard not to. Over the years, when one coal company I cover has had miners die at its operations, I’ve frequently listed the hundreds of violations that those operations have been cited for. Almost every time, the company’s publicist calls me to complain that I need to give the story some perspective, that their hundreds of violations aren’t really anything out of the ordinary. There are mines around the country that make it through the year without deaths and injuries. Reporters should be asking why they can’t all do that, and why they can’t all follow the rules all the time. Industry lobbyists and regulators say that they won’t settle for anything less than zero injuries and deaths – but then they want to play comparison games to avoid criticism when disaster strikes.

“We need a serious attitude adjustment,” said Celeste Monforton, a former federal mine regulator who now teaches and studies at George Washington University. “Violating safety and health standards – and that’s what citations are – is illegal.

“If an airplane had 50 safety violations, it sure wouldn’t be cleared for takeoff,” Monforton said. “Why is it OK for miners to be exposed to 50 or more hazards, and it’s considered ‘normal?’ That attitude must become a thing of the past.”

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