Questions about mining regulations remain in wake of Freedom settlement

PIKEVILLE — One question that wasn't answered in Freedom Energy's settlement with safety regulators is what the Mine Safety and Health Administration will have to prove in future court actions.

The agency is seeking to revise regulations stemming from the 1977 Mine Act, and simplification of the rules might help answer the question.

In a status hearing Tuesday on the Department of Labor and MSHA's action against Massey Energy's Freedom Mine No. 1 in Sidney, a federal judge asked both sides what he should be looking for when trying to determine that the mine has a "pattern of violations" — should he consider only "final orders," or should he consider only citations that have been appealed by the mine operator? It's unclear whether MSHA's revisions to the rules will address the judge's criteria.

No mine has ever been placed on a pattern of violations. Part of the reason, said a mine safety attorney who has petitioned for changes, is that the regulations written to outline enforcement of the law give mine operators a notice of a "potential pattern of violations" and one last chance to fix problems before receiving the most serious administrative sanction.

The "pattern of violations" can be issued by the courts, according to one section of the Mine Act regulations, or by the agency, according to another section. A "potential pattern" is outlined only under the administrative section.

In December, the judge ruled that the administrative action doesn't need to be finished in order for the courts to intervene, a decision MSHA counted as a win.

In a conference call Wednesday morning about the agency's regulatory agenda, MSHA chief Joseph Main said that the rules on designating mines as having a pattern of violations are broken and that the agency will pursue changes as part of its regulatory agenda this year.

The changes, due for publication this month, would simplify the process.