Industry sees MSHA proposal as unconstitutional (concl.)

Posted on behalf of The Bell Law Firm, PLLC on Jun 10, 2011 in Coal Mining Accidents

In our last post, we were talking about coal industry reactions to Mine Safety and Health Administration proposed rule changes. The rule changes were developed in the aftermath of the Upper Big Branch mine accident in West Virginia last year.

Both Alpha Natural Resources, Inc. -- the company that took over UBB's parent company Massey Energy Co. -- and the West Virginia Coal Association argued that one key proposal regarding inspections was unrealistic and burdensome. The organizations objected to another proposed rule on the grounds it was unconstitutional.

The so-called unconstitutional proposal was developed specifically to address one major concern with MSHA's enforcement powers. The rule specifically deals with the "pattern of violations" process.

Currently, when the agency finds a violation, it issues a citation. When a company reaps enough citations, MSHA can take additional action -- including closing the mine -- because the company has a pattern of violations.

The mine owner is allowed to appeal a citation, though, and during the appeal process the citation is not considered in the total count of violations that would make up a pattern of violations. After the UBB disaster, many complained that mine operators could have hundreds of violations -- even violations for serious safety issues -- but escape any consequences by appealing each and every one of them.

According to United Mine Workers' representatives, the rule needs revising. Citations can linger in the appeal process for years, they said. And during that time, the conditions in the mine can change radically.

The proposed rule would reportedly allow MSHA to determine a pattern of violations while some citations are still on appeal.

Industry representatives claim that making these determinations with information from citations that have not been finalized would be unconstitutional. The rule, said a Coal Association representative, would violate mining companies' rights to due process.

MSHA will likely not promulgate the final rules until late in the year.

Source: Bloomberg BusinessWeek, "Coal industry pans proposed mine safety rules," Tim Huber, 06/blog/2011

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