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Coal industry disagrees with new mine safety rule

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A coal industry representative in West Virginia says new rules proposed by federal regulators will not serve to make coal mines any safer.

Chris Hamilton, vice president of the West Virginia Coal Association, said he was disappointed to learn of rules proposed by the Mine Safety and Health Administration in regard to the pattern of violation program. Hamilton said he was most upset to see that MSHA had, in his view, ignored a number of recommendations to the rule.

One part of the rule allows regulators to consider violations that had not been finalized in assigning the mine status as a pattern of violations mine. Once a mine is considered POV, it is subject to much stricter regulation.

Hamilton said he thinks the move by MSHA impedes on a company's right to due process.

"It appears they just totally ignored our comments," Hamilton said.

Hamilton added that the idea that measure will improve mine safety was "hogwash" because the agency already has measures for shutting down a mine if there is a serious threat found in the mine. He added that, in his opinion, mines wouldn't be any safer with the introduction of the final pattern of violation rule.

Hamilton said that while he was surprised and disappointed in the agency's action, he said over-regulation has been a recent pattern of the agency. He said that while the industry takes time to review the new proposal, it may consider options to challenge the rules.

The National Mining Association had a similar reaction to MSHA's announcement today. Nancy Gravatt, senior vice president of communications at NMA, passed along a number of concerns with MSHA's rules.

First, the final rule, NMA states bears little difference to the rule proposed in Feb. 2011. The NMA wrote that the final rule skirts NMA concerns regarding due process and notice and comments concern.

"Because any unsafe conditions must be remedied under current regulations, no miner is put in harm's way if a citation is appealed," the NMA wrote. "As such, the loss of due process rights serves no safety objective."

The NMA is also concerned that operators will get put on a Pattern of Violation status "unjustifiably" with "little or no protection." The final rule would even keep mines on a POV status if it is later determined that a citation leading that mine to being placed on the rule was issued in error.

"While four percent of citations have been vacated (as stated by MSHA), 52 percent of citations for 2010-11 that were not vacated were reduced, i.e., the underlying conditions for the citation were determined to be of less-severe nature," the NMA stated, adding that it believes current MSHA enforcement tools are being used effectively.

As reported by the State Journal earlier this morning, the new rule includes the following major provisions:

  • Allows MSHA to issue a POV notice without first issuing a potential POV notice.
  • Eliminates the existing requirement that MSHA can consider only final orders in its POV review.
  • Establishes general criteria and procedures that MSHA will use to identify mines with a pattern of S&S violations.
  • Reinforces mine operators' responsibility for compliance with MSHA safety and health standards and for monitoring their mines' compliance.
  • Clarifies that MSHA will consider a mine operator's effective implementation of an MSHA-approved corrective action program as a mitigating circumstance in its POV review, if the program contains definitive benchmarks implemented prior to POV notice, and the operator has reduced S&S violations.
  • Restates the statutory requirement that, for mines in POV status, each S&S violation will result in a withdrawal order until a complete inspection finds no S&S violations.

Sen. Jay Rockefeller, D-W.Va., applauded the new rules, comparing them to similar action he had attempted in new mien safety law.

"It was clear after Upper Big Branch that some companies were violating lifesaving mine safety requirements over and over again," said Rockefeller.  "I said then that I would work to reform and strengthen these rules so that mine operators who are repeat offenders stop shirking their responsibilities and start running mines that are fit for people to work in – and I'm keeping up that fight."

In a news release, Rockefeller pointed out that Upper Big Branch had repeatedly received violations, but was never placed on a pattern of violation notice before.

"This rule is an important step forward for improving safety in mines across West Virginia and the country," Rockefeller said. "The Department of Labor and MSHA are moving in the right direction and I thank Secretary Solis for her leadership on this issue.  I'm glad to see that the new rules include some of the key reforms from my mine safety bill.  Too many miners have lost their lives on the job, and I am continuing to push for my comprehensive mine safety bill – for our current and future miners, and their families.  This is a preventable tragedy that no family should have to face."

Rockefeller, as of 4 p.m., has been the only member of West Virginia's delegation to issue an unsolicited response to the new rules. 

Sen. Joe Manchin, D-W.Va., issued a statement at 5:15 p.m. He said in that statement a strong mining industry begins with a strong commitment to miners.

"Our coal miners are some of the hardest working people in America, and they are proud to do the heavy lifting that keeps this country strong," Manchin said in his statement. "This new rule is another step forward in making sure that we protect our miners and the integrity of our coal industry."

On a conference call with reporters Thursday afternoon, Secretary of Labor Hilda Solis said this action, and two other federal regulations released by MSHA, follow in the wake of the Upper Big Branch mine disaster. The explosion killed 29 men.

"Upper Big Branch impacted the entire mining enterprise," Solis said.

In the wake of the explosion, the public came to question MSHA's enforcement of the pattern of violation mines, rock dusting and other issues found in the Upper Big Branch mine. A federal criminal investigation of the mine explosion is still ongoing.

Solis said the POV program is designed to hold consistently bad actors responsible. It took more than 30 years since its creation before any mine had ever been put on POV status, something that didn't occur until after the explosion at Upper Big Branch.

"That's why today I am very very pleased to announce the final pattern of violations rule to strengthen MSHA's ability deal with the nation's dangerous and troubling mines and that mine operator," Solis said.

Assistant Secretary of Labor Joe Main disagreed with the coal industry. He said he thinks the rules will prevent a future disaster.

"The primary purpose of the POV rule is the restoration of safe and healthful conditions at noncompliant mines," said Main. "The final rule better achieves the goal of the Mine Act and the intent of Congress."



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