Senate funds system to speed processing of mine safety violations

In response to the April 5 blast in a West Virginia coal mine that left 29 miners dead, the Senate has proposed spending emergency funds to upgrade a computer system to reduce a backlog of unresolved mine safety citations. Federal officials testified this year that Massey Energy Co., which operated the Upper Big Branch Mine where the explosion occurred, avoided complying with regulations partly because citations for safety violations issued to the company had yet to be processed.

A report accompanying the Senate-passed version of the 2010 Disaster Relief and Summer Jobs Act (H.R.4899) allocates $3.8 million for managing cases handled by the Federal Mine Safety and Health Review Commission. The commission is an independent agency that rules on legal disputes between the government and mine operators over rules stemming from the 1977 Federal Mine Safety and Health Act.

Under current regulations, the Labor Department cannot impose strict penalties -- such as shuttering operations -- against companies until cases are finalized. As of April 30, the commission had a backlog of 16,580 cases, and the average case takes more than 600 days to resolve from the time a violation is issued. Supplemental funding for the commission would pay for hiring more judges and staff, developing a plan to reduce the backlog of appeals, and implementing an electronic system to track cases, according to the report that accompanied the Senate bill, which was approved May 27.

"The committee supports the development of the most efficient system possible in the processing of cases," the report stated.

Lawmakers included funding for information technology enhancements that would speed processing and improve tracking of individual cases. In the report, the Senate required the commission to submit a plan within six months of enactment of the law detailing options for upgrades, the feasibility of the upgrades and costs.

In fiscal 2008, the commission installed a new electronic case-tracking system and now is designing a program for filing case documents digitally. Mary Lu Jordan, chairman of the commission, told Senate appropriators at a May 20 hearing about the backlog that agency personnel are visiting other adjudication agencies that use e-filing systems to determine how much time and money will be needed to rollout the system.

On April 27, Joseph A. Main, assistant secretary of Labor for mine safety and health, testified before the Senate Health, Education, Labor and Pensions Committee that the government could not act on a string of red flags at Massey Energy because of the backlog of citations. Over the past several years, the Mine Safety and Health Administration found and issued an increasing number of citations for violations of the 1977 mine act. Massey Energy received enough warnings to reach what is called pattern of violations status, at which point federal regulators are able to demand workers leave mines that have substantial violations until the problems are fixed.

Main also discussed the backlog problem at a May hearing before Senate appropriators. "In what is perhaps the most troubling statistic, in 2009, MSHA issued 48 withdrawal orders at the Upper Big Branch Mine for repeated actions that violated safety and health rules," he said. "Massey failed to address these violations over and over again until a federal mine inspector ordered it done. The mine's rate for these kinds of violations is nearly 19 times the national rate."

In 2009, regulators proposed penalties against Massey Energy that totaled more than $13.5 million, but the company contested $10.5 million of the fines. The federal government can rely only on resolved cases to establish a pattern of violations. Because of the backlog of outstanding cases, regulators often cannot shut down allegedly unsafe mines, federal officials maintain.

"The pattern of violations program should be one of MSHA's most serious and effective tools for holding bad actors like Massey Energy accountable, but it is not," Main testified in May. "Massey Energy employed a popular tactic at Upper Big Branch used by mines with troubling safety records to avoid potential pattern of violations status."

Jordan also testified in May that the backlog makes it difficult for MSHA to establish a history of violations, which is required by regulations in order to mete out the harshest punishment.

"An issue frequently raised since the explosion in West Virginia is that several important enforcement provisions of the Mine Act depend upon a determination of an operator's history of violations," she stated. "Penalties are calculated based, in part, on the operator's history of violations. . . .Thus, if case decisions are delayed, MSHA's ability to effectively enforce the act is inhibited."

The commission has hired some new personnel to speed processing using part of its $10.4 million budget for fiscal 2010, Jordan said. She requested appropriators provide supplemental funds so they can quickly hire more staff, particularly judges.

While the Senate report is explicit in its directions, the text of the legislation does not tell the commission to use the extra funding for IT. The bill states that the $3.8 million is to remain available for operations of the commission for 12 months after enactment of the law, according to aides for Senate Democrats.

The House version of the bill was passed on March 24 before the mine disaster and does not include funding for the commission. The Senate and House now must reconcile differences between the two bills before a final vote.