Alexa E. Welzien · July 2011
79 GEO. WASH. L. REV. 1613 (2011)
On April 5, 2010, a deadly combination of methane gas and coal dust ignited Massey Energy’s Upper Big Branch coal mine in West Virginia. The explosion instantly killed twenty-nine miners and became the deadliest mining disaster to occur in nearly forty years. Prior to this tragedy, the Upper Big Branch mine had a long history of safety violations. In the year 2009 alone, the mine received over five hundred citations for various violations of safety standards and was issued close to $900,000 in civil penalties. Joseph A. Main, the Assistant Secretary of Labor for the Mine Safety and Health Administration (“MSHA”), stated that the Upper Big Branch mine had received more “unwarrantable failure” orders for safety violations resulting from conduct characterized as “reckless disregard” than any other mine in the country. Furthermore, during the months preceding the deadly explosion, the mine was evacuated on three separate occasions for ventilation problems relating to a dangerous buildup of methane gas.
Despite the Upper Big Branch mine’s repeated pattern of violating safety standards, the mine continued to operate and produce coal. Congress granted MSHA powerful enforcement tools to prevent mining disasters by specifically targeting mines that generate a history of recurring violations. Under section 104(e) of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), Congress mandated that if a mine operator demonstrated a “pattern of violations” of safety standards that are of such a serious nature that could have “significantly and substantially” contributed to health and safety hazards, the operator “shall be given written notice that such pattern exists.” Once an operator is given notice that the mine has been placed on a pattern of violation (“POV”) status, if a federal inspector finds a violation of “significant and substantial” (“S&S”) nature within ninety days, the inspector shall issue a closure order requiring the operator to shut down the mine until the violation has been abated.
Although Congress intended to give MSHA an effective enforcement mechanism to control mine operators who continually disregard mandatory health and safety standards, the Agency has never successfully used this important enforcement tool. In fact, in the thirty-two years since Congress enacted section 104(e), the POV provision, MSHA has never used its authority to place a single mine on POV status.
Instead, MSHA promulgated rules that diminish the effectiveness of the Mine Act by allowing the Agency to send written notification to mine operators informing them that their mines’ compliance records have demonstrated a potential POV. The notification instructs the mine operators to develop a corrective action plan in order to avoid being issued an official notice of POVs in accordance with section 104(e) of the Mine Act. As long as the operator submits a corrective action plan to reduce S&S safety violations, MSHA will not place the mine on POV status. Surprisingly, there are no formal requirements to ensure that the mine operator is complying with the new corrective plan. Furthermore, a recent report analyzing the effectiveness of MSHA’s enforcement policies revealed that MSHA does not monitor or enforce the implementation of these corrective action plans.
Consequently, mines similar to Massey Energy’s Upper Big Branch mine that have demonstrated a recurring pattern of S&S violations are not placed on POV status and are not subject to enhanced oversight as Congress intended. This Essay argues that MSHA’s regulations that determine whether a mine should be placed on POV status should be set aside as invalid because the regulations are manifestly contrary to the purpose of section 104(e) of the Act. As such, this Essay proposes that MSHA should promulgate new regulations that utilize MSHA’s POV authority as a compulsory enforcement tool. MSHA’s current policy of designating mine operators with repeated S&S violations as potential POV status mines and giving the operators an opportunity to avoid POV status is an impermissible construction of the statute.
This Essay begins by discussing the history of mine safety legislation and the requirements of the Mine Act in Part I. In Part II, this Essay explores the creation of MSHA and analyzes its scope of authority in enforcing the Mine Act. Here, the Essay explains MSHA’s enforcement scheme. Next, in Part III, this Essay explains section 104(e)’s POV authority and how it applies to mine operators with a history of violations. Part IV analyzes whether MSHA’s regulations for determining POV status are invalid under traditional Chevron principles. Finally, Part V proposes a solution that makes designating mine operators with repeated S&S violations as POV status a mandatory enforcement tool. Specifically, this Essay proposes that MSHA should promulgate new regulations that require MSHA to use its POV enforcement authority on all mine operators who demonstrate a pattern of violations that are of an S&S nature.
