In the month’s preceding the deadly explosion in April 2010 that killed 29 coal miners, Massey Energy’s Upper Big Branch (UBB) mine had racked up hundreds of serious violations of safety standards.  In 2009 alone, this included 48 orders from federal mine inspectors to withdraw workers from the UBB mine because of dangerous conditions.  But Massey knew how to game the system.  Mine managers would make a couple tweaks, correct the immediate problem, and it was back to mining coal. usually within an hour or so.   There was no real consequence for their or other mine operator’s repeated violations of the law, even though a provision in the Federal Mine Safety and Health Act gives the Labor Department’s Mine Safety and Health Administration (MSHA) the authority to keep the mine under strict oversight for having a “pattern of violations.”

There’s no doubt in my mind that the history of lawbreaking at the UBB mine was the exact kind of behavior that Congress had in mind in 1977 when it wrote the “pattern of violation” (POV) provision.  Yet in the agency’s 30+ year history, no mine had ever been given the POV designation.  Not at UBB before those 29 coal miners were killed, not anywhere else where the mine operator had an appalling history of violating standards to protect miners’ lives and health.

This week, the Labor Department took a step to change that.  It issued a new regulation to implement in a more effective way the Mine Act’s POV provision.  In a nutshell, here’s how the provision will work:

• MSHA will develop and publicize the criteria for receiving the POV designation.
• MSHA will continue to offers on its website a “Monthly Monitoring Tool” for mine operators to assess their violation history.
• MSHA will, at least once per year, review each mines’ violation history for the previous 12 months, as well as its incidents of injuries, illnesses and reportable non-injury incidents, and identify those mines that meet the POV criteria.
• MSHA will notify the mine operator and the miners’ representative (if one is designated by workers at the mine) that the mine meets the POV criteria; the notice must be posted at the mine.
• Within 90 days of issuing the POV notice, if MSHA finds any S&S violation at the mine, all miners will be withdrawn from the affected area until the violation is corrected.
• The POV status will be terminated when (1) an inspection of the entire mine finds no S&S violation or (2) no withdrawal orders are issued within 90 days after the POV notice is issued.

The rule will only affect a fraction of mine operators because the criteria for getting the POV label will be steep.   MSHA notes in the rule’s preamble: “This final rule allows MSHA to focus on the most troubling mines… The rule will not affect the vast majority of mines…”

Under a current MSHA program to designate similar bad actor repeat violators, less than 0.1% of the nation’s 15,000 mines had to worry at all about receiving the bad actor designation.  The criteria was set up to identify only the most rouge operators.  The criteria included:

At least 50 citations for significant and substantial (S&S) violations issued in the most recent 12 months, PLUS a rate of eight or more S&S citations issued per 100 inspection hours, PLUS the degree of negligence for at least 25 percent of the S&S citations issued during the most recent 12 months is“‘high” or “reckless disregard,” PLUS more.

The major mining trade associations and firms opposed the rule when it was proposed in February 2011.  They complained that it was fundamentally unfair by violating their due process rights.  Under the rule, an operators’ 12-month history of safety violations will be based on the citations written by federal inspectors.  They’d prefer a system where that history is based only on citations that have fully adjudicated before the Federal Mine Safety and Health Review Commission (FMSHRC).  (That’s the independent body that reviews MSHA violations and penalties when a mine operator challenges the inspector’s findings.)

The trouble is, following the 2006 Sago disaster when MSHA penalty amounts were raised, some mine operators—including UBB’s Massey Energy—-decided to contest many of the violations they received, in particular those classified as S&S.  That created a backlog of 16,000 cases at the FMSHRC; today there are still nearly 11,000 cases in the backlog, involving 59,000 violations.  And it means that the FMSHRC judges are hearing cases with violations dating back a few years.  With those citations still in the pipeline, a mine operator that contests violations—-largely in order to get a substantial penalty reduction, not really to challenge the inspector’s findings—will not have a complete 12-month history of violations for the annual POV review.  Without a full history, the POV process is neutered.

The Labor Department skillfully answers the mine operators’ due process complaints.

“Citations and orders, together with notice of the POV criteria posted on the website, and the on-line Monthly Monitoring Tool, will provide sufficient notice to alert operators of the possibility that they may be subject to a POV.  Under existing MSHA procedures, mine operators can discuss citations and orders with the inspector both during the inspection and at the closeout conference.  They also can request a safety and health conference with the field office supervisor or the district manager to review citations and orders and present any additional relevant information.  Additionally, mine operators who may be approaching POV status have the opportunity to implement a corrective action program, and MSHA considers a mine operator’s effective implementation of an MSHA-approved corrective action program as a mitigating circumstance in its POV review.”

Moreover, the Mine Act gives a mine operator the right to seek expedited temporary relief under section 105(b)(2) of the Mine Act from a POV designation.  Requests for temporary relief are reviewed within 72 hours and assigned to an FMSHRC judge.

I don’t find the mining industry’s “due process” argument convincing and neither do attorneys Wes Addington and Tony Oppegard of the Appalachian Citizens’ Law Center:

“Because only a statistically negligible number of contested violations are reversed or modified downward in the operator’s favor, the arguments from the industry against removal of this provision are not truly rooted in “due process,” but simply indicate their preference that MSHA return to the days when pattern of violations were never issued.”

I couldn’t agree more.  I also can’t also help but wonder if things might have worked out differently at the UBB mine had an effective POV process been in place.  God rest the souls of those 29 men.