Mine Deaths Stir New Debate On Federal Oversight

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The explosion at a West Virginia coal mine on April 5 was the worst mining disaster in the U.S. in four decades. It resulted in the death of 29 miners who were killed at the Upper Big Branch mine.

On Tuesday, a Senate panel holds the first Congressional hearing into the explosion. The lead witness is Joe Main, the assistant Secretary of Labor who heads the federal Mine Safety and Health Administration (MSHA). Critics say the agency has been too timid in pursuing mine safety violations.

In 2006, at a solemn ceremony in the White House, President George Bush addressed families of those killed in the mine accident. He vowed to strengthen the law to protect miners.

"We make this promise to American miners and their families: We'll do everything possible to prevent mine accidents and make sure you're able to return safely to your loved ones," Bush said.

That ceremony took place in the aftermath of coal mine accidents that left 33 dead in 2006. Congress quickly passed and the president signed the Miner act, which increased penalties for mine safety violations, in addition to other measures.

As Congress prepares to take another look at legislation, attention is focused on whether MSHA needs more tools or needs to better use the ones it has.

Celeste Monforton, who worked at MSHA under President Clinton and both Bush administrations and teaches at George Washington University, says the law is adequate. But she also says an anti-regulatory climate in Washington has led to lax enforcement:

"You have an agency that gets weak in the knees in terms of really strongly enforcing the law, and the tendency is to try to work things out behind closed doors, negotiate deals, rather than using the big stick," Monforton says.

The big stick, she says, would be "to close a mine down."

Unused Enforcement Tools?

MSHA has the authority to shut down a portion of a mine if it determines there is a pattern of safety violations. It also can seek a court injunction to temporarily close a mine. But it has rarely used those powers. Instead, starting in 1990, the agency began issuing warning letters to notify mine operators they are at risk of being closed, or what's known as being on "a pattern."

"So you have these two powerful tools in your arsenal that you're not using and then you wonder why a mine blows up," says attorney Tony Oppegard, a former MSHA official who is representing some of the relatives of victims of a 2006 Kentucky mine accident.

Jonathan Snare, a Washington, D.C., attorney who worked in the Labor Department's solicitor's office during President George W. Bush's administration, says the warning letters were a useful way to get mining companies to correct their violations.

"And they either took these steps to the satisfaction of MSHA, who went back to verify, or they were put on the pattern which could have led to other sanctions including the mine being closed," Snare says. "So the bottom line there was a view that the first round at least had been successful because these mines that had been ignoring their issues fixed them and solved their safety issues."

A Backlog Of Thousands Of Cases

But coal companies have the right to appeal serious citations, and they have — to the extent that there is a backlog of some 16,000 cases. Massey Energy Company, operator of the Upper Big Branch mine contested 97 percent of the serious violations against it in 2007, according to MSHA.

"This is a complex matter — this is a system that was built up over years," says Rep. George Miller, a Democrat from California. "I've tried to reform it. We've had some success, but almost every time in this legislation the mining industry more or less wins out because they always weaken the bill. I think we ought to use this as an opportunity and the tragic deaths of these miners and the outrageous behavior of some of these mine companies to try and see if we can do a first-class job of reforming the law."

It's unclear just now what legislation is likely to come out of the renewed focus on mine safety. In a statement, the Department of Labor has called for strengthening MSHA's capacity to investigate, prevent and punish dangerous wrongdoing, as well as bringing cases to justice with greater speed and certainty. Others have called for giving the agency subpoena powers it now lacks.

"I would hope that at a minimum before there are new regulations — before there's consideration of new legislation — that we allow this investigation to proceed," says Bruce Watzman of the National Mining Association, an industry lobbying group. "We need facts to make educated choices and in the absence of that we're all speculating as to what occurred and what the necessary solutions are."

Oppegard says the shackles have to be taken off Main, the new MSHA chief, who is a former United Mine Workers union official.

Oppegard says it's unfortunate it took a disaster to bring renewed attention to the issue: "That's the history of coal mining legislation in the U.S. — it's always born out of disaster and as it's said the safety laws are always written with the blood of miners. That's what it takes."

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