Tuesday marked another National Miners Day — a day to honor miners and commemorate the worst industrial mine accident in United States history.
But this year, federal mine regulators flexed their enforcement muscle ahead of the memory.
On Dec. 6, 1907, hundreds died after an explosion at the Fairmont Coal Co.’s No. 6 and No. 8 mines in Monongah. The official death toll of the 1907 explosion is 362, but that number doesn’t account for miners’ family members, including dozens of children, who were present in the mines that day.
There have been over 112,000 more mining fatalities in the years since, including 37 in 2021 — the highest single-year total since 2014, according to Mine Safety and Health Administration data.
But it’s something else that hadn’t happened since 2014, announced by the Department of Labor last week, that underscored safety standards aimed at protecting miners and hinted at more aggressive enforcement of those standards to come.
The Department of Labor announced that its Mine Safety and Health Administration has found a Pattern of Violations at the Morton Salt Inc.-operated Weeks Island Mine and Mill in New Iberia, Louisiana.
The finding marked the first time in eight years that a mine operator got a Pattern of Violations notice — one of the most powerful enforcement tools that the MSHA has — for persistent serious health and safety violations.
The Pattern of Violations is a provision used to act against mine operators who have shown a chronic disregard for miner health and safety.
“When operators fail to uphold their legal obligations, MSHA is not going to hesitate to use all the tools we have to prevent injuries, death and illness at the nation’s mines,” MSHA Assistant Secretary for Mine Safety and Health Christopher J. Williamson said during a call with reporters Friday.
If the Mine Safety and Health Administration finds any violation deemed significant and substantial at a mine within 90 days of a Pattern of Violations notice there, the agency will order the withdrawal of miners from the impacted area until the violation is abated. The Pattern of Violations notice is in effect until MSHA doesn’t issue a withdrawal order for 90 days or a MSHA inspection of the entire mine finds no significant and substantial violations.
“Significant and substantial,” or S&S, is the designation that MSHA uses to signify a reasonable likelihood that the hazard could result in serious injury.
“S&S is so very fundamental to the enforcement scheme,” said Bob Cohen, former member of the Federal Mine Safety and Health Review Commission, an independent agency which reviews legal disputes arising under the Mine Act that has governed MSHA activities since 1977.
“S&S violations are bedrock on which you build POV [Pattern of Violations],” said Richard Miller, former U.S. House Education and Labor Committee labor policy director.
The Pattern of Violations notice comes amid concerns that MSHA enforcement has weakened over time and after a history of little use.
Although 2021 marked a seven-year high in mine deaths, MSHA’s percentage of significant and substantial citations and orders fell from 24% to 20% in the same span.
Penalty amounts assessed per ton of coal produced decreased by 23% from 2014 to 2021.
Williamson, a Mingo County native who became the MSHA’s leader earlier this year after he was appointed by President Joe Biden, declined to comment on those trends. The former aide to Sen. Joe Manchin, D-W.Va., alluded to 2022’s national mine fatality total as of Monday — 27 — which is on pace to be lower than 2021’s seven-year high of 37, and touted MSHA’s Pattern of Violations notice issued to Morton Salt Inc.
“If we have to use our authority to protect the safety and health of the nation’s miners, we won’t hesitate to do that,” Williamson said.
The Department of Labor Office of Inspector General found in a 2010 audit report that regulators hadn’t successfully exercised their Pattern of Violations authority in the 32 years since gaining it under the Mine Safety and Health Act of 1977.
After the Upper Big Branch Mine disaster in Montcoal, Raleigh County, killed 29 miners in April 2010, the agency announced that an error in computerized tools it developed for Pattern of Violations oversight had incorrectly omitted the mine from the most recent list of mines with Pattern of Violations designation potential.
Miller said that, even despite many years passing since a Pattern of Violations was issued, the threat that MSHA could issue a Pattern of Violations notice has been a key safety tool despite what he and other miner safety proponents say were efforts to undercut it during the Trump administration.
United Coal subsidiary Pocahontas Coal’s Affinity Mine in Sophia, Raleigh County, was included in MSHA’s first round of Pattern of Violations notices in 2013 after it issued a rule that year to strengthen that provision.
The Affinity Mine received 124 violations under the category during the review period, a fourth of which federal inspectors cited as “involving high negligence or reckless disregard” for miner health and safety. The mine received 35 closure orders during the review period, third-highest in the country.
But in June 2018, Pocahontas Coal and MSHA agreed to a settlement terminating the Pattern of Violations notice. Pocahontas Coal had appealed its Pattern of Violations designation before the Federal Mine Safety and Health Review Commission, which dismissed Pocahontas Coal’s appeal in light of the company’s agreement with MSHA in August 2018.
In a scathing dissent, Cohen objected to the broader agreement to lift the designation, calling it “unlawful” and writing that the designation “sends the dangerous message that an operator who has chronically disregarded safety, thus gaining an unfair advantage over safer competitors in the process, may nevertheless obtain reprieve from the Mine Act’s heaviest sanctions by the grace of a friendly administration no longer committed to enforcing those sanctions.”
The five-member Federal Mine Safety and Health Review Commission raised the burden of proof to demonstrate that a violation is significant and substantial in a 3-2 June 2020 decision. The ruling drew the ire of miner advocates who say commissioners appointed by former President Donald Trump have given mine operators too much leeway and not enough protection to mine workers.
MSHA has settled key cases against mine operators found in violation of safety standards for pennies on the dollar.
Two men were killed in an underground mine fire at the Massey Energy-controlled Aracoma Coal Co.’s Aracoma Alma Mine No. 1, in Logan County, in 2006. MSHA proposed penalties for nearly 1,300 citations and orders totaling over $2.8 million, some of which resulted from an investigation into mine conditions that resulted in the two fatalities.
Aracoma agreed to a criminal fine of $2.5 million per an agreement with the U.S. Attorney for the Southern District of West Virginia. But per a settlement agreement with the Department of Labor, the Aracoma agreed to pay a penalty of $1.7 million, just over 60% of the originally proposed penalties.
MSHA agreed to forego issuing a warning letter that would normally start the process of designating a mine as showing a Pattern of Violations under an accord with Aracoma.
Per the agreement, Aracoma would voluntarily apprise the agency of plans to cut the rate of significant and substantial violations at the Alma Mine and another mine. Aracoma could remain on those plans as long as it maintained certain goals, according to a Federal Mine Safety and Health Review Commission ruling upholding a chief administrative law judge’s approval of the agreement.
MSHA reviews the violation and injury history of each mine to determine whether any meet the criteria to have a Pattern of Violations. The agency provides a monitoring tool for operators to determine whether they may be subject to a Pattern of Violations notice.
This National Miners Day, Williamson wants mine operators to be on notice.
“[W]hen operators fail to uphold their legal obligations, MSHA’s not going to hesitate to use all the tools we have to prevent injuries, death and illness at the nation’s mines,” Williamson said.
