Coal mining companies have successfully thwarted tough new safety rules
that were intended to help prevent a disaster like the one that killed
25 West Virginia miners Monday, top labor and mine safety officials
said, by overloading the regulatory system with appeals.
The companies, including the massive coal producer Massey
Energy, which owns the Upper Big Branch mine, developed a novel
strategy to respond to more aggressive safety regulations that were
imposed by Congress after two deadly mining accidents in 2006, the
officials say. The companies now appeal twice as many citations as they
did just four years ago.
As federal safety regulators began to impose more fines, the
companies responded by contesting the citations. Each challenge chewed
up more time and resources. The result is an enforcement system bogged
down and behind schedule, said U.S. Rep. George Miller, a California
Democrat who began investigating the problem earlier this year.
As the contested cases sit and wait to be reviewed, the
companies don't have to pay fines, and they don't face closer scrutiny
or risk being shut down -- for having a pattern of violations that
put workers in danger.
In 2005, before increased penalties took effect, mine operators
appealed one in three fines, and the commission that reviewed the cases
carried a backlog of about 2,100 cases. Now, Miller said, mine
operators contest two-thirds of all fines, with some of the largest
mine owners including Massey Energy -- challenging the vast majority
of the citations they receive.
The backlog of appeals has shot up to 16,000 cases. And
federal safety officials are waiting out appeals over $210 million
dollars in contested fines.
"These appeals are clogging the system," Miller said during a
congressional hearing on the topic in February.
Mining industry officials acknowledge the flurry of appeals has been
viewed in some circles as an attempt to gum up the system and delay the
payment of civil penalties. Bruce Watzman, Sr. Vice President of
Regulatory Affairs for the National Mining Association told Congress in
February that "honest and reasonable people can disagree as to the
underlying cause for this," but "one fact that is not in dispute is
that these actions in no way jeopardize miner safety and health."
Mine Safety 'Being Subverted'
In testimony that came prior to this week's fatal explosion, Watzman
pointed out that American mines had experienced two consecutive years
of record safety, with 86 percent of U.S. mines finishing last year
without a single lost-time accident.
Cecil E. Roberts, president of the United Mine Workers of America,
said it has become clear that the intent to use harsher fines to create
a safer work climate for miners is "being subverted by the huge
contested rate that has overwhelmed the government's ability to deal
with its caseload."
Where the problem becomes serious is in situations similar to
the one at the Upper Big Branch mine, J. Davitt McAteer, a former top
federal mine safety official, told ABC News.
The company that operated the mine for Massey Energy, called
Performance Coal Co., has had roughly 1,000 violations processed since
2007. Of them, 335 are still being contested, while 80 more show the
company is delinquent in paying fines that were levied.
Normally, when federal regulators determine that a mine has
shown a "pattern of violations," the government can tighten the screws,
hiking fines or even shutting the mine down until the safety problems
are resolved. But while the infractions are being contested, all of
that has to wait.
Roberts made specific note of this point in February, speaking
in front of a congressional committee. He wanted to make the point that
the consequences of the industry's delay tactics were not
"You must recognize that many of these violations are quite serious,"
he said. They are "the kind of violations that have contributed to mine
fires, explosions and the deaths of coal miners."