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MSHA cites 3 mines under new 'pattern of violations' rule

CHARLESTON, W.Va. -- Federal inspectors on Thursday took stepped-up enforcement actions against three coal mines -- including two in West Virginia -- citing them under a tougher new "pattern of violations" rule written in the wake of the Upper Big Branch Mine Disaster.

U.S. Mine Safety and Health Administration used the updated rule for the first time. The rule eliminates a preliminary warning letter to mine operators. It also allows MSHA to count citations and orders toward a mine's violation history even if those enforcement actions remain under appeal by the company.

One of the mines cited was Metinvest's Affinity Mine in Raleigh County, where two workers died in separate incidents on Feb. 7 and Feb. 19. The others were Patriot Coal's Brody Mine No. 1 in Boone County, and Tram Energy's Mine No. 1 in Floyd County, Ky.

MSHA chief Joe Main said the new rule, which took effect in March, replaces a previous regulation that safety advocates complained for years was weaker than what was required by the federal mine safety law.

"This really gets us back to what Congress intended," Main said.

In a phone interview, though, Main indicated no immediate plans to use other tough enforcement tools -- such as seeking a federal court mine closure injunction -- against any of the three mines.

"I think that the enforcement actions for right now that we have exercised are the enforcement actions for right now that we have exercised," Main said. "That does not mean that sometime down the road or for other reasons that we couldn't exercise other actions."

The three pattern-of-violation, or POV, notices are the latest in a renewed effort to use a program that lawmakers created in 1977, after finding that repeated citations by inspectors weren't enough to prevent a series of explosions that killed 23 miners and three inspectors at the Scotia Mine in Kentucky in March 1976.

Under the POV program, mines with a history of safety problems are kicked into a tougher enforcement bracket. Each time an additional serious citation is issued, that part of the mine is closed. Mines can have the pattern-of-violations designation lifted only if they go an entire quarterly inspection without a series violation.

But MSHA for years delayed in writing rules to implement the POV program. When it did write rules, critics say they had far too many loopholes. And screening of mine operators to look for repeat violators was sporadic.

Until 2011, in the more than 30 years since Congress created the program, MSHA had never successfully put a single mining operator on a pattern-of-violation status.

In a press release issued Thursday afternoon, MSHA outlined what it said were the reasons for putting the West Virginia mines that were placed on POV status:

| Patriot's Brody Mine No. 1 received 253 "significant and substantial" violations during the 12-month review period that ended Aug. 31. An MSHA audit of the mine's records found that injuries of miners resulted in 1,757 lost-work days at the mine, 367 of which were from eight injuries that the company did not report to MSHA. A separate audit last year found 29 injuries that were not reported.

| Metinvest's Affinity Mine received 124 significant and substantial violations during the review period, a quarter of which MSHA cited as involving "high negligence or reckless disregard" for the health and safety of miners. Two miners died in separate accidents, both involving "scoop" vehicles, and the mine received 35 closure orders, the third highest in the country.

Amy Louviere, a spokeswoman for MSHA, said that the Brody mine would have been placed on pattern-of-violation status under the old criteria. The Affinity Mine would not have been placed on that status under the old criteria, Louviere said.

In a prepared statement, Patriot said it acquired the Brody Mine effective Dec. 31, 2012, and that many of the violations cited by MSHA in the POV finding occurred prior to that time. Patriot said it has made major improvements in safety performance at the operation, and intends to vigorously fight MSHA's POV notice. 

Mark McCormick, general counsel for Metinvest's United Coal division, of which Affinity is a part, said it was unfair for MSHA to use citations and orders that his company is appealing in making a POV determination for the operation.

The National Mining Association and other industry groups are challenging the new MSHA POV rule through a lawsuit filed in the 6th U.S. Circuit Court of Appeals, McCormick noted.

"We were disappointed that MSHA didn't take into account a number of mitigating circumstances," McCormick said. He said the company has launched several safety initiatives at the Affinity Mine and that the operation hasn't had a lost-time injury in the last 100 days.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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