MSHA works to remove 'loop holes' from regulations

The changes are meant to address issues revealed in the investigation of the 2010 Upper Big Branch mine disaster. 

Upper Big Branch, owned by Massey Energy at the time, had been cited by MSHA for more than 600 violations in the 15 months leading up to the April 2010 explosion. Some Massey miners testified that the company had a culture that put production ahead of safety, deliberately violated safety provisions, and even threatened to fire miners who spoke out about unsafe conditions.

But UBB was never placed on a “pattern of violations” status. The label gives the federal Mine Safety and Health Administration more authority to temporarily shut down mines. Regulators blamed a ‘computer glitch’ and cited it as an isolated instance although no other mine fell into this status either.

During an interview just weeks after 29 West Virginia coal miners lost their lives in the UBB disaster, mine safety advocate and attorney Tony Oppegard pointed out that the program was not working.

“This is for outlaw operators," Oppegard said. "This is for companies that just refuse to comply with the law but the way MSHA has neutered it through this warning notice and through establishing these complex criteria is why it’s never used therefore you have mines like Upper Big Branch that can continue to place miners live in jeopardy and never be sanctioned in any way.”

Oppegard was referring to the ‘potential pattern of violations’ status; a warning before being put on the status.

“MSHA sees they have a pattern of violations," he said, "then sends them a warning letter saying be a good boy and do a better job and nothing will happen to you.”

Before 2011 no company had ever been placed on a “pattern of violations” status even though the power was first given to the federal Mine Safety and Health Administration in the Mine Act of 1977.

"There has been a recognition by many that the system has been broken," MSHA chief Joe Main said during a teleconference yesterday.

Along with Secretary of labor Hilda Solis, Main explained that the new rule allows federal inspectors to put a mine on POV status without first issuing the mine a ‘potential’ POV notice.


"MSHA should not be prevented from taking action to protect the lives of miners for months," Main said, "or even years while we await the final outcome of citations and orders that mine operator can easily contest."

"The new rule addresses those flaws."

The rule also eliminates the requirement that MSHA only consider ‘final order’ citations that have made it through the appeals process. According to MSHA’s website more than 59-thousand citations and orders are not final because they are being contested by mine operators.

MSHA’s new POV provision simplifies the general criteria that MSHA will use to identify mines with a pattern of signficant and substantial, or S and S, violations.

The mine must meet all of four newly listed criteria; including having at least 50 S&S citations issued in the last 12 months at a rate of eight or more per 100 inspection hours.

"For mines with a POV status," Main said, "each S&S violation will result in a withdrawal order until a complete inspection finds no S&S violations."

April 2011 MSHA launched an online monitoring service that allows anyone to determine how a specific mine measures up to the criteria for the potential for POV based on the most recent data available. Main says this puts the responsibility into the company’s hands.

The rule takes effect in late march.

West Virginia’s two senators made statements supporting the new rules.

Sen. Joe Manchin released a statement to calling it another step in the right direction. Meanwhile Senator Jay Rockefeller along with senior Democratic member of the House Education and the Workforce Committee George Miller introduced new legislation also meant to address problems revealed in the Upper Big Branch investigations.

So far the bill has failed to pass. In releases, Rockefeller and Miller said they plan to reintroduce the Robert C. Byrd Mine Safety Protection Act because they think more still needs to be done to protect miners’ lives.