A Victory for American Coal Miners; A Small Measure of Justice for the Victims of the Upper Big Branch Mine Disaster

James Goodwin

Jan. 18, 2013

Yesterday, the Mine Safety and Health Administration (MSHA) finalized the long overdue Pattern of Violations rule, a measure that will enhance the agency’s enforcement authority by making it easier for the agency to hold scofflaw mines strictly accountable for repeatedly and needlessly putting their workers at risk of chronic illness, severe injury, or even death.  The deterrent effect of this enhanced enforcement authority will discourage delinquent mine operators from cutting corners on health and safety, a development that will produce significant benefits for America’s miners.  MSHA estimates (see page 6) that the rule will prevent nearly 1,800 non-fatal injuries over the next 10 years, in addition to reducing instances of illnesses and fatalities.

The Pattern of Violations rule was one of the high priority regulatory actions that MSHA announced in response to 2010’s Upper Big Branch Mine disaster, in which 29 miners were killed in a massive mine explosion.  Several investigations of the incident revealed that the explosion was precipitated by a deadly combination of hazardous conditions including improperly maintained mining equipment, inadequate ventilation, and insufficient rock dusting; the Upper Big Branch Mine had had been repeatedly cited for many of these kinds of hazards in the months prior to the disaster.  Between 2005 and the time of the explosion, MSHA had cited the Upper Big Branch Mine for 1,342 violations.  In 2009 alone, the agency cited the mine for 515 different safety violations, around 200 of which MSHA deemed to be “significant and substantial,” or violations that could reasonably be expected to lead to a serious injury or illness.  The Upper Big Branch Mine’s operator—the now defunct Massey Energy Company—also had a long history of operating mines with similar health and safety violations.

Under the existing rules, delinquent mines that in practice had a long pattern of violations could avoid official “pattern of violations” status—which would enable MSHA to order the mine to withdraw workers from any part of the operation that it subsequently finds to have a significant and substantial violation—by appealing the citations.  The Massey Energy Company had resorted to that tactic with Upper Big Branch, and MSHA had also made an error that stopped the company from moving a step closer to receiving a pattern of violation notification.  Had a proper Pattern of Violations rule been in place, and had MSHA properly implemented it, the Upper Big Branch Mine disaster might have been prevented.

The Pattern of Violations rule has been a long time coming.  It was initially authorized by a provision of the 1977 Federal Mine and Safety Act, but that provision remained largely dormant until after the Upper Big Branch Mine disaster.

An April 2011 CPR white paper identified the rule as one of 12 key health, safety and environmental rules that the Administration needed to complete.  The rulemaking was marked by several delays, despite the Department of Labor naming it a high priority.  MSHA issued the proposed rule in February of 2011, and took public comment.  The Fall 2011 regulatory agenda—which was issued in January of 2012 and was the last of the regulatory agendas to be issued before the current one—projected that the Pattern of Violations rule would be finalized in April of 2012.  In May of 2012, MSHA submitted a final rule to the White House Office of Information and Regulatory Affairs (OIRA), which is limited to a 120-day review under Executive Order 12866.  The rule was finally issued yesterday.

The delays notwithstanding, the final Pattern of Violations rule represents a huge step forward for miner safety in the United States.  For too long, scofflaw mines have taken advantage of MSHA’s weak enforcement authorities in order to put increased profits ahead of miner health and safety.  This action also provides an important measure of justice for those whose lives have been irrevocably altered by the Upper Big Branch Mine disaster.  We owe them nothing less.

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