MSHA proposes rules to close 'loopholes' in mine safety

companies no longer could avoid severe punishment, agency says

dhjalmarson@herald-leader.comFebruary 1, 2011 

The U.S. Mine Safety and Health Administration has proposed a rule that officials say will close loopholes that have allowed the most egregious coal mine operators to avoid the most severe punishment.

The new "pattern of violations" procedures will be available in the Federal Register for public comment from Wednesday to April 4.

The proposal eliminates the intermediate "potential pattern of violations" warning letter that repeat safety violators now receive.

It also eliminates the requirement that citations used to determine a pattern of violations be final; currently, citations and orders that the company has appealed are not counted toward a pattern.

Removing those "loopholes" brings the regulations closer to what Congress intended when it passed the Mine Act of 1977, MSHA chief Joseph A. Main said Monday.

"Congress intended for a swifter action," Main said.

He said he hoped that eliminating the warning letters would "encourage operators to be more proactive in fixing those problems, examine their own safety records, know what penalties will be, know what the criteria is."

Compliance data would be made available in MSHA databases so companies don't need a warning letter to know they're on a pattern of violations, Main said.

In November, there was a backlog of 88,000 contested violations, and contested violations were averaging nearly 18 months to become final.

Companies should not be allowed to continue operating without fixing safety problems just because they've contested the citations, Main said.

Mine-safety advocates pushed for such a rule change last year, after an explosion at a mine in West Virginia killed 29 underground miners. The mine had hundreds of recent violations on MSHA's books.

The proposed rule could lead to mines being idled more often because being on a pattern of violations brings a more stringent set of criteria for inspections, said Wes Addington, a mine safety attorney for the Appalachian Citizens Law Center.

Mines could be shut down because compliance becomes too expensive, he said.

MSHA estimated the annual cost of the new rule to the industry would be $4.2 million, a tiny fraction of the many billions of dollars coal and other mines generate. The cost includes additional inspection expenses and safety plans that about 50 repeat violators would have to submit to the agency annually. MSHA estimated that 10 mines a year might be placed on a pattern of violations.

The pattern-of-violations rule has never been applied successfully to a mine in the 33-year history of the Mine Act.

"Over time, their internal criteria for determining whether a company was on a pattern of violations was so convoluted, even the worst violators were never brought to it," Addington said.

Mine operators say parts of the new rule are unfair.

Losing the advantages of the appeals process is a "serious concern" for coal mine operators, Kentucky Coal Association president Bill Bissett said.

"Removing the right of appeal is unfair and unconstitutional, and placing a mine in a POV status during the appeal process is not due process," Bissett said.

There are some unanswered questions. The rule allows for "mitigating circumstances" to delay a mine's pattern of violations listing, but those circumstances are unclear, Addington said.

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