MSHA puts more pressure on mines over safety
Hundreds of mourners gathered April 10 for a candlelight vigil at Marsh Folk Elementary School in Raleigh County, W.Va., for the 29 miners killed in an explosion at the Upper Big Branch mine.
On April 7, two days after the fatal explosion, miner Brent Racer, center, walks with his daughter Alayah, 2, his wife Tara and miner Patrick Lomas after they picked up their paychecks from the Upper Big Branch Mine.
When Joe Main, took over at MSHA, he set out to put the emphasis on enforcement rather than the friendlier "compliance assistance" strategy adopted in the previous decade.
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ARLINGTON, Va. -- Seven months after 29 men died in a roiling explosion that traveled more than two miles underground, the federal agency charged with protecting them is climbing out from under a mountain of paper and brandishing powers that have lain dormant for three decades.
The federal Mine Safety and Health Administration is threatening to seize one mine outright and close another altogether.
The agency's dramatic move Nov. 3 to seek a court order shut down Massey Energy's Freedom Mine No. 1 in Pike County, Ky., capped a six-month inspection blitz that followed the deadly April 5 explosion at another Massey mine -- Upper Big Branch in Raleigh County, W.Va. MSHA followed last week with a threat to seize Upper Big Branch after accusing mine officials of impeding the blast investigation. Both sides agreed to a Nov. 29 deadline to end the impasse.
MSHA's newfound aggressiveness hasn't stopped there. The agency has targeted 111 mines with high rates of safety violations, simplified the path to declare a "pattern of violations" that allow MSHA to mete out stronger sanctions on troublesome mines and moved to ease a backlog of disputed violations that has tied up enforcement.
"This has sent shock waves through the mining industry. Companies are worried they'll be the next one," said Tony Oppegard, a former MSHA official and onetime mine safety prosecutor in Kentucky.
"It's something that should have been mainstreamed into the enforcement process well before this," said Joseph Main, the MSHA chief now unleashing closure and pattern of violations orders.
The journey from passage of the 1977 Mine Safety Act, which first empowered regulators, and the decision to use those powers follows a convoluted path through six presidential administrations and endless codes and regulations as officials tried to sort out just what the language meant. No company had ever been placed on a "pattern of violations" status, in part because of regulations that required written notices warning companies, which could then make minimal improvements.
After Upper Big Branch exploded, MSHA targeted mines throughout Appalachia. Inspectors swarmed over some locations, sometimes seizing mine telephones to prevent guards from warning foremen underground about their arrival.
But it was the move to shut down the Freedom Mine that was the most striking display of MSHA's newly aggressive law enforcement.
"It is the most powerful enforcement tool in MSHA's toolbox and yet it's never been used until just recently. That's really inexcusable," said Mr. Oppegard, a longtime MSHA critic. "That should have been done long ago."
MSHA's court filing to close the Freedom Mine was fraught with hints of actions overdue and dangers unaddressed. The mine, MSHA claimed, flouted rules concerning adequate ventilation, roof supports, explosive coal dust and more. Between July of 2008 and Sept. 30 of this year, MSHA issued 1,952 citations and orders for safety violations at the mine, one-third of them for breaking critical health and safety rules encompassing ventilation, roof supports and presence of combustible materials.
Stevie Justice, a health supervisor for MSHA's District 6, which oversees the mine, filed an affidavit about an inspection in which he and a fellow coal mine inspector walked into a section of the mine and discovered a concentration of volatile methane gas in an area the operators had failed to properly ventilate.
Mr. Justice said the mixture of methane and oxygen measured "in this most volatile range" and presented an imminent danger of a mine explosion. Freedom had already accumulated citations for roof falls and coal dust which can multiply a methane explosion -- something suspected at Upper Big Branch.
"The mine roof contains shale and sandstone and some quartz level. The roof can spark when the drill bits hit the rock," Mr. Justice said. "In addition, this operator has a history of electrical issues including problems with cables and impermissible equipment."
"You have a mine that is by all indications just as bad, or worse, than Upper Big Branch," said Mr. Oppegard.
In the hours after Upper Big Branch exploded, MSHA's records made clear two things: The mine had accumulated citations on ventilation and dust, the two things thought most likely to contribute to a gas accumulation and blast.
And when it came to collecting paper, Upper Big Branch was not alone.
Since the federal MINER (Mine Improvement and New Emergency Response) act was passed in 2006, strengthening enforcement and in many cases more than doubling the dollar amount of fines, the regulatory process clogged with thousands of appeals and an insufficient number of government lawyers and administrative judges to resolve them. Enforcement had frozen in place.
In earlier years, mine owners would pay fines and move on. Now, a new pattern had developed, something J. Davitt McAteer, the MSHA chief during the Clinton administration, saw as a strategy.
"They jammed the system," he said. "After the MINER act went through, some clever lawyers in Washington knew where the weak point was in the chain. That weak point was a lack of lawyers."
Dennis O'Dell, director of safety for the United Mine Workers of America, said the strategy was fairly open.
"The operators unofficially told us a long time ago that if these higher fines were to come into play under the MINER act that they knew they could tie the system up before the administrative law judge and the review commission," he said.
Mr. McAteer said the tone set by a regulatory agency can be as critical as the laws in place. When he oversaw MSHA during the Clinton years, he said, shutting down a section of a mine for imminent danger often got the result the agency must now seek with the outright closure of an entire mine.
"Quite frankly, I sent them a letter and said we're going to put this pattern on you and these boys would straighten up," he said. "We used this threat. The threat is more powerful than the strike itself."
Mr. McAteer, Mr. Oppegard and others insist that in subsequent years, under the George W. Bush administration, MSHA took a tamer approach -- one they said contributed to laxity with results that can be counted in coffins.
Henry Chajet calls the idea of a deliberate strategy "impossible, illogical and ridiculous."
A Duquesne Univesity-educated attorney at the powerhouse Washington firm of Patton Boggs, Mr. Chajet has been among lawyers the coal industry has summoned to represent them before regulators.
"What is obvious and logical is that when penalties are increased by three to tenfold, as they were from 2007 forward, without regard to a company's safety record, contests of those penalties will increase," Mr. Chajet said.
Mr. Chajet paints a picture of MSHA as an agency with unusually sweeping authority that is simply misapplied.
"MSHA has more closure order power than almost any other agency in the United States and the power resides in the inspectors themselves," he said. He described an MSHA budget "that amounts for more than $500 per miner per year" and yet, as he sees it, lacks focus in enforcement.
"We do not need more laws or more enforcement power or more federal dollars to achieve safety and health goals. We have more than enough already that is being misused," he said.
Massey, the proximate target of much of MSHA's wrath, insists the backlog has not benefitted mine operators.
"Contesting citations does not allow companies to postpone correcting the issues cited, and operators would fare much better in contests if they were held sooner, when memories and evidence are fresher," the company said in a written reply to inquiries about the impasse.
The turnabout on enforcement has been led by Joe Main, a soft-spoken, bespectacled Greene County native who was appointed as assistant secretary of labor for mine safety and health after a career as a safety advocate with the United Mine Workers. He took over an agency that during the Bush administration had cultivated a cozy relationship with the industry it regulated.
United Mine Workers President Cecil Roberts criticized Mr. Main's predecessor as head of MSHA, Richard Stickler, a former Pennsylvania mine safety official who also had deep ties to the industry from three decades working at Bethlehem Steel Corp.'s mine division.
"He wanted to get along, wanted to work with the industry," Mr. Roberts said. "And there's nothing wrong with that, but you can't have, in my opinion, the head of the state police going on record with those he has to enforce the law against and saying, 'I want to get along with you.' "
When Mr. Main took over, a staff overhaul was impossible: He only had two political appointments to make; everyone else in the agency is a career civil servant. Instead he set out to put the emphasis on enforcement rather than the friendlier "compliance assistance" strategy adopted in the previous decade.
"We've made it clear that the core of that Mine Act is going to have full inspections of those mines," Mr. Main said in an interview at MSHA's offices in an Arlington high-rise overlooking the Potomac River and downtown Washington.
"And compliance assistance is an extension of that, not a replacement of that, and that's where I think some of the lines got fuzzy earlier, where the thought was to fix up compliance assistance," he added.
Illustrative of the challenge was a March 2009 internal memo by Kevin Stricklin, the agency's safety chief, that directed staff to limit "pattern of violation" warnings to only three mines per district. Asked about the memo, which was written before he was confirmed to the post, Mr. Main offered a curt: "I made it pretty clear that that's not our policy here."
Mr. Main arrived late, in October 2009, after his appointment was held up for months in the Senate. His early focus was on fighting black lung, and the agency launched a multimillion dollar public education program surrounding it. While accidents killed a declining number of miners each year, Mr. Main reasoned, black lung affected a much wider swath of the population.
Another target of Mr. Main's MSHA, which resides in the Department of Labor, was the backlog of contested safety violations. After the 2006 MINER Act -- passed in the wake of the Sago Mine explosion that killed 12 -- increased penalties and enforcement, mine operators responded by filing legal challenges to MSHA citations at an increasing rate.
In 2006, 7 percent of cases were challenged; in 2009, it was 27 percent. By August of this year, a stack of 89,000 cases awaited administrative judges at the Mine Safety and Health Review Commission.
MSHA contends that many of the challenges are needless attempts to delay fines, and they prevent the agency from imposing its more severe penalties. Like a petty criminal with several cases pending but no convictions, scofflaw mines can't be punished as repeat offenders with citations hanging in limbo. And with the cases sometimes taking years to process, their resolutions often fall past the statute of limitations for MSHA to follow through with a "pattern of violations" determination -- which prompts the agency to shut down a section of a mine each time it finds a serious violation.
Industry officials claim that the citations, not the challenges, are often frivolous and a legal challenge is the only way for an operator to explain itself to an agency that often puts paperwork and statistics over working with a mine to make it safer. Also, mines are required to remedy the hazard whether they challenge the citation or not.
At a hearing on the issue in February, Mr. Roberts warned that the backlog -- and attendant handcuff on MSHA enforcement -- could result in another Sago. Forty-one days later, around 3 p.m., a massive explosion surged through the Upper Big Branch mine in Raleigh County, W.Va., and "sleep pretty well disappeared here for a while," Mr. Main said.
Mr. Main had never heard of the mine before the explosion, but was immediately inundated with questions of why his agency hadn't shuttered it. MSHA inspectors had papered Upper Big Branch with serious violations, including for poor ventilation, in the run-up to the explosion, but a computer glitch had kept it from tougher scrutiny.
He stood before the cameras' glare at an elementary school in Montcoal until the 29 men trapped underground were officially declared dead. Then he met with the president in the Oval Office.
As his agents began the slow process of getting to the bottom of what caused Upper Big Branch to explode -- government investigators think methane, amplified by coal dust -- Mr. Main set his charges out to target mines with a propensity for major violations. In a five-day blitz at 57 mines, inspectors issued 1,339 citations and 109 "D" orders to shut down parts of the mines.
In the ensuing months, MSHA conducted -- and heavily publicized -- "impact inspections" at several mines, rapping them for, among other infractions, alerting underground personnel that an inspector was on the property. In one instance, MSHA seized the phone lines at a mine to ensure its inspectors' presence would be unannounced.
After five months, the tally stood at 111 mines inspected, with 2,484 citations and 228 withdrawal orders issued.
The National Mining Association, coal's Washington-based trade association, supported the effort.
"MSHA's clearly stepped up their activities," said Bruce Watzman, the association's chief lobbyist. "They're doing something today that we have advocated for a long period of time -- and that's target their resources."
But Mr. Watzman added that a stack of citations does not an unsafe mine make.
"What's the first thing that happens when there's an incident at a mine site? Everyone runs to MSHA's website to see what the compliance history of that mine was," he said. "Yet, I've got to tell you, is when we look at the numbers there really isn't a good correlation between compliance and safety."
He produced a Power Point presentation citing a lack of correlation between citations at some unidentified mines and accident rates.
Of the 111 mines MSHA set its sights on in the months after Upper Big Branch, a dozen -- including the Freedom Mine in Kentucky -- were owned by Massey, the Richmond, Va.-based company that is the largest coal producer in Central Appalachia.
It is led by chairman and CEO Don Blankenship, a son of Mingo County, W.Va., and avowed foe of unions, environmentalists and regulators. He is also active in Republican politics -- to the point where he spent so much money to elect a West Virginia Supreme Court justice that the U.S. Supreme Court ruled Justice Brent Benjamin must remove himself from ruling in any case involving Massey.
Mr. Blankenship, who has run the company since 2000, wears his defiance proudly.
"We need and we are obligated to and we should be compelled to speak out," he said in an appearance at the National Press Club in Washington in July. "Because the knowledge and the vantage point that we have is such that we owe it to the people and we owe it to our workers and we owe it to the country."
Since the 29 deaths on his property in April, Mr. Blankenship has carried on a sometimes bitter public relations fight with MSHA over the blast's origins. Mr. Blankenship has said a sudden rush of gas through a crack in the floor is the likely culprit for the explosion, and that deadly accidents are often unavoidable acts of God. Initially, Massey contended the gas was coal bed methane and, last week, argued that it was more likely natural gas. In addition to quibbling with MSHA about its investigation -- the company has challenged subpoenas of its employees and protested that it is being shut out of the probe -- the company has claimed that MSHA forced an inferior ventilation plan on Upper Big Branch. MSHA, which handed down more withdrawal orders at UBB than any other mine in the country in 2009, claims the mine's initial ventilation plans violated the law, necessitating a change.
The public battle reached a new crescendo last week, when MSHA moved to seize Upper Big Branch outright because Massey officials refused to provide water so investigators could test the dust suppression system on the shearing machine at the long wall -- the place thought to be the epicenter of the blast.
In wording redolent of Mr. McAteer's account of laconic mine managers showing little fear of authority, MSHA inspectors filed a citation that quoted foreman Charlie Bearse informing them no water would be coming. Told the mine could be issued a citation, said MSHA records, he responded, "Serve it to my name."
MSHA deputy assistant secretary Greg Wagner wrote in a memo leaked to the press that Massey's "strategy is to deflect the blame."
Mr. Blankenship has repeatedly claimed Massey has a strong safety record, but the assertion is undercut by the many fatalities at Massey mines -- including two in a 2006 fire at the Aracoma Mining Co. Alma No. 1 mine in West Virginia -- and anecdotal reports of the company cutting corners on safety.
In congressional hearings, Upper Big Branch employees testified to a culture of fear, corroborated by a 2005 memo from the notoriously micromanaging Mr. Blankenship instructing employees "If any of you have been asked ... to do anything other than run coal (i.e. -- build overcasts, do construction jobs, or whatever) you need to ignore them and run coal."
According to the UMW's Mr. Roberts, the most elusive safety goal for miners nowadays is the right to refuse to work in what they deem to be unsafe conditions.
"Technically and theoretically that right exists, but let's be honest, show me where that's ever happened at a Massey operation," Mr. Roberts said.
One possible avenue to address that would be in a new mine safety law.
As has been the case in past disasters, Upper Big Branch set off a flurry of congressional action. But bills in the House and Senate to expand the power of MSHA have stalled, and stand little chance of passage in their current forms.
The legislation is named for the late Sen. Robert C. Byrd, D-W.Va., who made one of his final public appearances to provide a scolding to Mr. Blankenship at a Senate hearing that made the usually bombastic chairman look like a deferential schoolboy.
But unlike past mine safety efforts spearheaded by Mr. Byrd -- including the 2006 MINER act -- this attempt has become bogged down in partisanship.
The bill would give MSHA additional power to shut down a mine that exhibits repeated violations before those violations are adjudicated in a court review system that can tie cases up for years while companies challenge violations. It also would grant MSHA additional ability to subpoena documents and witnesses during investigations.
It also would expand whistleblower protections for all workers, beyond the mining industry, a move long sought by Democrats that brought Republican criticism. The bill passed out of the House Education and Labor Committee on a party line vote in July but never made it to the floor. Now with Republicans taking control of the House, it likely won't get there in the new Congress. Rep. John Kline, R-Minn., the likely incoming chairman of the Education and Labor Committee, has said he wants to wait until the investigation into the Upper Big Branch explosion is complete before legislating.
In the Senate, the bill has yet to see a committee hearing. Democratic and Republican staffers on the Health, Education, Labor and Pensions Committee worked on a potential compromise, but negotiations seemed to fall apart in September. The committee's top Republican, Wyoming Sen. Mike Enzi, blamed the breakdown on Democrats trying to politicize the issue.
The mining industry has sought to block the legislation, claiming it is an unfair attempt to assign blame for Upper Big Branch before an investigation is complete and starts from a false premise that MSHA needs more power. Mr. Watzman cited the agency's enforcement blitz as an example.
"So given the agency's recognition now that they have some tools they've not used and those tools might bring about the change they'd like to see, I'm not so sure that it's not premature" to give MSHA more power, Mr. Watzman said, "and in some respects bolsters the argument that we've made that it's premature."
Regardless of how the legislation -- which MSHA helped write -- fares in the congressional morass, Mr. Main vows to continue the regulatory assault on noncompliant mines
"MSHA's here to enforce a law created to protect workers, and if companies out there want to implement programs that are consistent with that law and carry that out then I think at the end of the day there can be a good relationship with the federal agency whose job it is to come check 'em out," he said.
"If companies decide that they don't want to live by those rules, they want to challenge those rules, they want to force the agency to come down and write them up 48 times with 'D' orders, then I don't think you would expect a good relationship from a company that expresses that kind of management attitude."
First Published November 23, 2010 12:00 am