Coal Mining Industry Ducks Punishment For Safety Sins By 'Clogging the System' With Appeals, Critics Say

April 7, 2010 — -- 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."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 insubstantial.

"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."

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