Coal companies resort to old ways to resist reforms

The Washington PostJanuary 4, 2011 

When Labor Secretary Hilda Solis appeared before a gathering of coal mine owners in the fall, she signaled a sharp change in the relationship between the mining industry and the federal agency charged with protecting workers.

Inspectors from Labor's Mine Safety and Health Administration, she said, will serve as "cops on the beat," patrolling mines to find safety violations. New regulations will force "bad actors to clean up their act." And owners who fail to clean up safety problems will face federal shutdown under a 33-year-old provision that has never been used before, Solis said.

With memories of the nation's worst coal mining accident in decades still fresh — 29 miners died at the Upper Big Branch site in West Virginia in April — the Obama administration is challenging coal companies to change their tactics and voluntarily improve safety or face the harshest sanctions the government can impose.

The new push to strengthen enforcement is encountering resistance already, according to longtime watchers of the coal industry, as companies employ the same legal and political strategies they've honed over decades to block federal reforms.

In November, MSHA went to court to try to force Massey Energy, owner of Upper Big Branch, to fix problems at another mine, which had accumulated 1,952 safety violations. The case was the first in which MSHA had tried to shutter a mine and force a safety overhaul by using the "pattern of violations" provision approved by Congress in 1977.

But before the court ruled, Massey said it would idle the mine, thus keeping the federal government from taking control of the mine and from interfering with the company's day-to-day operations.

MSHA says the legal action against Massey is a sign of things to come. Last month, the agency listed 13 mines in danger of shutdown under the POV provision. Massey owns three of them, more than any other operator.

After every major mining accident, said Rep. George Miller, D-Calif., author of a now-stalled coal safety bill, "there is great emotion that pours out for families, for their tragedy, their children and their community. Everyone pledges they will make it safer. But the mine owners, they just wait and let time work and let time erode emotion, and then they come to Washington. They tell members they can't do business this way. They can't make profits this way."

Massey's approach to federal regulation has been notable for two tactics that, according to critics, allow the company to thwart or skirt safety requirements. First, Massey has persuaded regulators to forgo safety rules on a case-by-case basis. Second, the company routinely contests federal citations in a manner that makes it virtually impossible for the government to force quick safety overhauls in the nation's most hazardous mines.

Under recently retired president Don Blankenship, Massey had mastered the art of the regulatory waiver, a way to legally circumvent federal mining laws. MSHA has approved 30 petitions from Massey to operate its mines outside of safety mandates, more than for any other company. Most were in the past decade.

The waivers allow Massey to mine through gas wells, to construct escapeways lower than the legally mandated five feet and to create fewer ventilation channels to provide miners with clean air.

Massey officials say many of their mines are old, and different approaches are needed to continue operation.

But United Mine Workers' safety director Dennis O'Dell and former MSHA director Davitt McAteer said the waiver system is one of most dangerous and most exploited loopholes in mine safety law. MSHA mine inspectors and district managers do the on-the-ground reviews of the requests and make the recommendations to agency headquarters. Most of the inspectors and managers come from the industry, O'Dell and McAteer said.

"These are their friends who are coming to them," McAteer said. "And these districts have been run as fiefdoms since the 1920s. You are in Washington, and you don't know the condition of the mine. It's difficult to call things off by the time it arrives on your desk."

Safety advocates say Massey has an opportunity with Blankenship's departure to change the company's image.

Yet they worry that once the impact of the Upper Big Branch disaster wears off, the coal industry will again find a way to unravel the effort to beef up enforcement.

"They will. They always do, until someone gets killed again," said Stanley Sturgill, a retired MSHA inspector.

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