As Coal Tattoo reports in “MSHA lost a major ‘pattern of violation’ case against Massey,” the federal mine safety agency was foiled in its effort to place Massey Energy’s Tiller No.1 mine on a pattern of violations. This particular underground coal mine is located in Tazewell, Virginia and had dozens of S&S citations for violating mandatory health and safety standards. S&S violations are NOT nit-picky offenses that you’d shrug your shoulders at—they are serious infractions with a reasonable likelihood that a worker could suffer a serious injury, even death. MSHA inspectors had issued so many S&S violations at the Tiller No. 1 mine that it appeared to be eligible for the agency’s “pattern of violation” (POV) designation. With that label, federal mine inspectors have even greater authority to shut down mining operations if serious violations are found.

In yesterday’s ruling, administrative law judge David Barbour upheld 19 of the 29 S&S violations—in my eyes, a pretty damning indictment of the working conditions at the mine. But under MSHA’s POV criteria, 19 S&S violations are not enough—the magic number was 25. Does anybody (besides Massey Energy and their lawyers) think that more than a dozen violations of this severity isn’t enough to show this company has a pattern of violating health and safety laws??

MSHA chief Joe Main reacted to yesterday’s ruling in a news release, saying:

“As a result of today’s oral decision by Federal Mine Safety and Health Review Commission Judge David Barbour, Massey Energy’s Tiller No. 1 Mine in southwestern Virginia cannot be placed on a pattern of violations by MSHA.”

That’s a pretty misguided sentiment. I wouldn’t blame judge Barbour for MSHA’s own ineffective screening tool for identifying mines that habitually violate the law. Judge Barbour didn’t write the policy. Judge Barbour didn’t decide that a mine like Tiller No. 1 would need 25 S&S violations to meet the POV criteria. The mine can’t be placed on a POV because of MSHA’s own policy—a policy that sets the bar so high for bad actors that even mines with dozens of grievous violations are deemed A-OK.

As MSHNews‘ Ellen Smith reminded me, in a 2008 decision by Judge Barbour commented:

“POV procedures and the policy behind them are little understood by many in industry and the bar, and I include myself among those who have had difficulty comprehending the POV process.”

One can only ask why MSHA continues to follow the screening criteria established in 2007 under the GW Bush leadership. The Obama/Solis Administration has known for at least a year and a half that the policy doesn’t work, but it’s still on MSHA’s to-do list. The MSHA chief says:

“The result [of the Tiller No. 1 decision] makes clear the need to reform the broken pattern of violations system. …under the current pattern of violations system, no mine has ever been successfully placed into pattern of violations status. …even mine operators with serious safety problems can evade pattern of violations status. The system is broken and we will fix it.”

Sound tough, doesn’t it? But as I wrote last month in “Puzzled by MSHA’s latest reg agenda,”Mr. Main isn’t planning even to propose a change until January 2011. I can’t figure out why it’ll take that long. A policy change like this does not impose new requirements on mine operators and does not require extensive economic or technological feasibility assessments. The change would simply amend the way that MSHA administers its own enforcement program.

Asst. Secretary Main says the system is broken, the Solicitor of Labor says the system is broken, President Obama says the system is broken. MSHA has the power to fix it and they should do so. They don’t need to wait until next year, MSHA should do it now.