UMW warns of backlog in safety cases

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WASHINGTON -- Deaths and injuries have fallen dramatically since the landmark mine safety law was enacted in 2006 in the wake of the Sago disaster in West Virginia and stepped up enforcement of regulations.

But challenges to enforcement actions have produced a massive backlog of cases that leaves the law toothless when it comes to the most severe violators, the president of the United Mine Workers of America told a congressional panel Tuesday.

The result, Cecil Roberts said, could be another Sago.

The Federal Mine Safety and Health Review Commission has a backlog of 16,000 cases, compared to 2,700 in 2006, as more violations are being cited and mine operators are challenging them at a higher rate. Because so many of the cases are in limbo, it is difficult to establish a pattern of infractions for a mine -- which results in tougher sanctions and threats of closure.

If the Sago Mine "had been placed under more stringent regime, there is a possibility, we don't know, that it would not have occurred," Mr. Roberts said. "You have a repeat offender -- over and over and over again -- and something has to be done."

Bruce Watzman, of the National Mining Association, emphasized that there have been great strides in safety since 2006, when 12 miners died in an explosion at Sago. Sago, combined with deaths at the Aracoma Alma No. 1 Mine in West Virginia and at the Darby Mine in Kentucky, focused national attention on the issue.

In 2009, 34 U.S. miners died on the job, an all-time low.

The backlog, Mr. Watzman argued, does not impact miner safety because the mining companies are required to address the potential safety hazard as soon as a complaint is filed -- so the problem is fixed even while the case is pending. He acknowledged that "contesting has become the default setting" for mining companies, but said that is the result of an avalanche of citations and the newly adversarial nature of the process.

Rep. Glenn Thompson, R-Centre, who served as the ranking Republican on the committee for Tuesday's hearing, sided with the mining companies and said the backlog was a natural outgrowth of the new law.

"I hope this committee proceeds with caution before we attempt to legislate in an area where legislation and regulation may actually be the cause -- rather than the solution -- to the problem," Mr. Thompson said.

Committee Chairman George Miller, D-Calif., didn't advocate any new legislation, but he rejected the notion that the new regulatory climate is a bad thing.

"The process that was in place before looked like an old boys' club," Mr. Miller said.

The 2006 Miner Act, passed by a Congress then under Republican control, established new and more severe penalties for violating existing mine safety law and created a new penalty for "flagrant conduct" by a mine operator. The Mine Safety and Health Administration -- part of the U.S. Department of Labor -- also has increased the number of inspections and the size of the penalties it issues.

In 2006, 7 percent of cases were challenged; in 2009, it was 27 percent.

One new MSHA policy has been to eliminate the informal conference before a safety complaint is litigated. Mr. Watzman cited the loss of an early-stage chance to resolve the issue as a big reason for the backlog -- though most of the sharp rise in contested cases came before that policy was instituted.

The conferences were too cozy for Mr. Miller's taste, he said, and resulted in mine companies getting two chances to strike down the complaint, as they could still litigate afterward.

"I don't want anyone thinking we go back to the old system," Mr. Miller said.

Joseph Main, the head of MSHA, said he would consider a restructured conference system as a way to resolve some of the complaints sooner in the process.

But Mr. Main emphasized that the burden is on the coal companies, as well, to follow the law and not try to gum up the system. He revealed that MSHA will seek to expedite cases that involve companies with multiple violations -- an attempt to bring the flagrant conduct provisions to bear.

An increase in funding this year will allow the review commission to hire four new judges and four new law clerks, said Mary Lu Jordan, who heads the commission. President Barack Obama's 2011 budget requests another increase for four more judges and nine more clerks. Ms. Jordan said those resources should help reduce the backlog.

Ms. Jordan said the commission would explore ways to adjudicate cases more efficiently, but none of the members of the panel -- or House members on the committee -- could offer a firm solution.

Union chief Mr. Roberts said he hopes MSHA policy changes will be able to cut through the backlog, but the real problem is the built-in incentive for companies to appeal fines.

"There is no reason for coal producers not to appeal this and send it up to the review commission," Mr. Roberts said. "The only thing that's going to happen here is you're going to pay less money or the same amount of money."


Daniel Malloy: dmalloy@post-gazette.com or 202-445-9980. Follow him on Twitter at PG_in_DC.


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