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Published: Thursday, December 07, 2006
Page: 3A
Byline: KEN WARD JR.

ARLINGTON, Va. - The nation's new mine safety chief is planning a crackdown on coal operators that repeatedly violate mining rules, but U.S. Mine Safety and Health Administration officials have already missed their first deadline on the project.

Also, a 16-year-old MSHA rule severely limits the agency's ability to shut down mines for a "pattern of violations," a longtime mine safety advocate says.

Richard Stickler, the new assistant secretary of labor in charge of MSHA, declined to give a new timeline for launching his crackdown.

"I'm reluctant to sit here and give you a date," Stickler said in an interview in his suburban Washington office, "but it's going to happen. It's a priority."

During the 90-minute interview earlier this week, Stickler disclosed his plans to begin using MSHA's nearly 30-year-old authority to greatly escalate enforcement actions against mine operators that repeatedly violate safety rules.

Stickler said he ordered his staff to put together a list of repeat violators and send them notices citing them for a "pattern of violations."

"I think we can more aggressively deal with those operators," Stickler said.

Under the law, operators that receive such a notice face closure orders that shut down portions of their mines for every serious citation issued during the following 90 days.

MSHA has never used the pattern-of-violations process, Stickler said, and needs to start doing so.

"That should change the attitude of the very small percentage of operators in this industry who have shown that they will not comply with the law," he said.

Though MSHA regulations already spell out criteria for a pattern of violations finding, Stickler asked agency officials to come up with a criteria for his crackdown list - and those officials have missed his first deadline for doing so.

"I am finding out that in government, things don't always happen as fast as I would like," Stickler said.

Nearly 30 years ago, Congress gave MSHA the pattern-of-violations authority when it rewrote federal mine safety laws in 1977.

Lawmakers said the need for the provision was "forcefully demonstrated" during the investigation of the Scotia Mine disaster, in which two explosions killed 23 miners and three federal inspectors in Kentucky in 1976.

"That investigation showed that the Scotia Mine, as well as other mines, had an inspection history of recurrent violations, some of which were tragically related to the disasters, which the existing enforcement scheme was unable to address," lawmakers said in one report. "The committee's intention is to provide an effective enforcement tool to protect miners when the operator demonstrates his disregard for the health and safety of miners through an established pattern of violations."

Three years after the pattern-of-violations authority was given to MSHA, agency officials proposed a regulation to implement the program.

Coal operators complained. They said that ongoing litigation over the definition of a "significant and substantial" violation should be settled before MSHA began citing operators for patterns of such violations.

MSHA dropped its proposed regulation, and a rule to implement the pattern-of-violations law was not finalized for another 10 years.

When MSHA did finalize the rule in July 1990, agency officials added a system that allows mine operators to fight a pattern-of-violations order and delay any mine closure orders that might otherwise follow that order.

Originally, the law said that when MSHA finds an operator has committed a "pattern of violations," the agency must send the company a notice that the pattern exists. Under the law, that notice itself kicks in the requirement for closure orders for future violations.

However, when it implemented the law, MSHA said agency officials would instead warn operators first when inspectors noticed a "potential pattern of violations."

That warning, the final regulations said, would give operators 20 days to review the basis for MSHA's action, provide the agency with additional information, ask for a meeting with MSHA officials to discuss the matter, or "institute a program to avoid repeated significant and substantial violations at the mine."

After all of that, if an MSHA district manager believes a pattern of violations still exists, the district manager can ask his bosses to consider issuing a pattern-of-violation notice. Even then, the operator has 10 days to submit written comments on the district manager's request.

Tony Oppegard, a longtime mine safety lawyer in Kentucky, said that the MSHA regulation's repeated layers of notices and appeals "defeats the purpose of the statute and guarantees that companies are never put on a pattern.

"This part of the statute is for the worst of the worst," Oppegard said, "but it's been totally emasculated."

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

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