Rule change makes it easier to crack down on rogue coal mines, regulators say

bestep@herald-leader.comJanuary 17, 2013 

Federal regulators would have an easier time using tougher sanctions against coal mines with persistent safety problems under a rule change announced Thursday.

The rule revises how the U.S. Mine Safety and Health Administration can pursue a "pattern of violation" status for mines.

A mine designated as having a pattern of significant violations faces increased mandatory shutdowns if inspectors cite subsequent violations they believe could result in serious injury or illness.

MSHA had never succeeded in placing a mine on pattern of violation status until April 2011 — 33 years after passage of the federal law that created the provision. One difficulty in implementing the provision was that the agency could only count citations that had been finalized. Mine operators could delay that determination for months or years by contesting citations.

The change announced Thursday would eliminate the requirement that MSHA count only final orders in its pattern of violations review.

"MSHA should not be prevented from taking action to protect the lives of miners for months, or even years, while we await the final outcome of citations and orders that a mine operator can easily contest," MSHA chief Joe Main said in a news release. "The new rule addresses those flaws."

The National Mining Association, which had objected to the rule when it was proposed in February 2011, said its concerns remain. It argues that because unsafe conditions must be fixed under current law, "no miner is put in harm's way if a citation is appealed."

Stripping the appeal from the current system denies operators their due-process rights, the association contends.

The new rule also will allow MSHA to eliminate the step of notifying a coal company that it has a potential pattern of violations at a mine before issuing a full-blown pattern of violations notice.

U.S. Rep. George Miller of California, the top Democrat on the congressional committee that oversees mine safety, said in a statement that the old rule had allowed mine operators to evade tougher penalties for persistent violations.

"With today's final rule, two loopholes that some mine operators exploited to the detriment of workers' lives and limbs have been closed," Miller said.

The new rule also establishes the procedures MSHA will use to identify mines with a pattern of serious violations and reinforces that it is a mine operator's responsibility to make sure their facilities operate safely, without waiting for MSHA to identify problems, Main said.

MSHA stepped up its efforts under the pattern of violations provision after the April 2012 explosion at Massey Energy's Upper Big Branch Mine in West Virginia, which killed 29 miners. The agency also began doing more inspections at mines with a history of health and safety violations and other problems.

One of the first two mines in the nation designated as having a potential pattern of violations was the Bledsoe Coal Company's Abner Branch Rider underground mine in Leslie County. The other was in West Virginia.

Federal regulators later shut down sections of the Leslie County mine several times under the provisions of the program.

Several other Kentucky mines have received notices in the last two years that they had a potential pattern of violations, which gave them an opportunity to improve so they wouldn't be placed under the stricter status.

Main said he believes the agency's efforts to crack down on mines with chronic safety problems has improved safety.

In 2010, 53 mines met the criteria to be notified they had a potential pattern of violations, but that number dropped to 20 in 2012, Main said.

There are more than 14,000 coal and other types of mines in the United States, he said.

Regulators believe the new pattern of violations rule will help prevent another tragedy like Upper Big Branch, Main said in a conference call with reporters on Thursday. The rule will be final on March 25, he said.

The Associated Press contributed to this story.

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