By Alexander Bolton - 04/08/10 10:06 PM EDT
Democrats in Congress are trying to crack down on litigation by mining companies that kept federal safety officials at arm’s length from the Upper Big Branch mine.
President Barack Obama has asked federal mine safety officials to report to him next week on the cause of the explosion and recommended steps to prevent future accidents.
Massey Energy, the company that operates Upper Big Branch, was able to keep the Mine Safety and Health Administration at bay by regularly appealing safety violations.
Since 2005, Massey has gone to the Federal Mine Safety and Health Review Commission 89 times to dispute safety violations that federal inspectors found at Upper Big Branch, according to an official at the commission.
The litigation stalled many of the findings of safety violations and prevented the Mine Safety and Health Commission from finding a “pattern of violation” that would have enabled them to exercise more oversight.
A spokesman for Massey did not immediately return a request for comment.
Obama administration officials and Democratic lawmakers have tried since last year to eliminate the backlog of cases at the Federal Mine Safety and Health Review Commission, but experts estimate even the newest proposals could fall short.
Obama will meet next week with Labor Secretary Hilda Solis and MSHA Administrator Joe Main to review their proposals to improve safety enforcement and prevent deadly accidents.
In the Labor, Health and Human Services appropriations bill for fiscal year 2010, Democrats included additional funding to hire four new administrative law judges at the review commission to deal with the backlog of cases.
The commission is in the process of hiring the extra judges, which would bring the total to 14.
In this year’s budget proposal to Congress, Obama requested adding another four judges to the commission.
The backlog of cases has soared from 2,100 in 2006 to 16,600 today, delaying the implementation of penalties for any safety violations mining companies choose to dispute.
“Chairman Miller has said this backlog is unreasonable and harms the safety of American miners,” said Aaron Albright, spokesman for Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee, which held a hearing in February on the backlog of contested safety violations.
But some experts question whether 18 administrative law judges at the commission will be enough to clear out the traffic jam of nearly 17,000 disputed violations.
Solis and Main will discuss the enforcement of mine safety regulations at their meeting with Obama next week.
Representatives of mine workers have accused companies of deliberately clogging the system to avoid paying fines and avoid findings of patterns of violation that would give MSHA enhanced power to investigate their operations.
“What’s really going on here is a systematic effort to jam up the process and jam up the mine-safety works,” said Phil Smith of United Mine Workers of America. “Because cases are tied up at the review commission, MSHA’s hands are tied and operators can keep mines open long past when they should be closed.”
Smith said there is a “strong possibility” that MSHA could have invoked enhanced authority to inspect the Upper Big Branch mine before this week’s accident if Massey had not contested so many previous safety violations.
By litigating nearly 90 citations, Massey may have prevented the agency from finding a pattern of violations and stepping up oversight.
Agency officials estimate that 48 mines around the country employing 6,000 miners would face tougher sanctions if not for delays at the review commission.
“With increased penalties for unsafe conditions, there are significant incentives for mine operators to abuse this appeals process,” Miller said at the February hearing.
“The mining industry trots out a litany of excuses on why their members are contesting nearly every health and safety violation,” Miller added.
A spokeswoman for the National Mining Association declined to comment directly but referred to the testimony of Bruce Watzman, senior vice president for regulatory affairs at the trade association, before Miller’s committee.
Watzman stressed steps the industry has taken to improve safety.
“In the last four years the industry has embarked on an aggressive, multi-faceted program to foster continued improvement and excellence in mine safety and health performance,” Watzman said. “We continue to see the benefit of these efforts as American mines operated all of 2009 with fewer fatalities than ever before.”
Watzman argued that the “logjam” at the review commission could be cleared without passing new legislation.
He recommended that MSHA should improve the training of inspectors and enforcement authorities and allowing mine operators to address to possible safety violations before a formal complaint is lodged.