By Mike Lillis
Federal mine-safety officials this weekend launched an experimental program designed to reduce the backlog of contested mine-safety violations — a backlog federal officials say has hampered their efforts to protect the nation's miners.
Yet some mine experts say the focus on the appeals backlog is just a smokescreen being used by officials who, all along, have had the authority to close unsafe mines but didn't want to confront the powerful mining industry.
"It's a red herring," Tony Oppegard, a former attorney with the Mine Safety and Health Administration (MSHA), said earlier this year. "It's a way to make you look like you're doing something when you're really not doing something."
At issue are tens of thousands of mine-safety violations under appeal by mine companies, who are wary of being hit with a dreaded "pattern of violations" (POV) status. That delineation — at least in theory — allows MSHA inspectors to close entire mines more easily when hazards surface.
But there's a glitch: MSHA officials can't determine a pattern of violations based on citations under appeal.
The industry is well aware of the loophole, and mining companies have launched a strategy in recent years of protesting more and more violations — a trend that’s created an enormous backlog of cases pending before the Federal Mine Safety and Health Review Commission, a federal panel that reviews appeals.
In 2005, mine operators contested 7,200 violations, or 6 percent of all citations issued, according to MSHA; last year, the number jumped to 46,526, or 27 percent of violations. As a result, there are about 89,000 contested citations idling before the review panel — up from 82,000 in February.
On Friday, MSHA took steps to reduce the backlog, announcing a pilot program designed to resolve the disagreements between mine companies and MSHA inspectors before appeals are filed.
"It is clear that the current conferencing structure is not working," Joseph Main, who heads MSHA, said in a statement announcing the program. "By resolving factual disputes before a violation is contested, these citations will not be added to the enormous backlog of cases that have bogged down the judicial system."
The program will launch in three MSHA districts: one in Pennsylvania; another in Kentucky; and a third in Alabama. Funding for the program comes courtesy of the late Sen. Robert Byrd (D-W.Va.), whose final legislative victory was a $22 million provision to help MSHA prosecute mine-safety appeals, including $3.8 million for the review panel to hear them.
The pilot is a direct response to April's explosion at the Upper Big Branch mine in southern West Virginia, which killed 29 miners. In the months leading up to the blast, MSHA issued the mine operator hundreds of safety citations, yet the project was never shuttered to allow inspectors to examine why the numbers were so high. MSHA officials have said the appeals backlog was at least partially the reason the agency didn't take more aggressive steps to close the operation.
Some mine safety experts, however, don't buy that argument.
Oppegard, now a Kentucky-based attorney representing victims of mining accidents, was quick to point out that the POV delineation originated in a 1977 mine-safety law — long before the backlog — but MSHA has been reluctant to use it.
"There was never one single pattern of violations issued before the backlog occurred," Oppegard said in June. "How can you blame the backlog now?"
That same law, Oppegard noted, gave MSHA temporary injunction authority to close unsafe mines, even for projects not officially on POV status.
"It's never been used in 33 years," Oppegard said, "because they're too timid to do it."