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3) If MSHA finds that a violation was the result of the operator’s “unwarrantable failure” to comply with a safety rule, MSHA puts the operator on notice that it must exercise more diligence to find and fix safety violations before MSHA finds additional violations. An “unwarrantable failure” means that an operator knew or should have known that the particular action or failure to take action was in violation of health and safety rules. If further MSHA inspections reveal additional “unwarrantable failure” violations, MSHA can immediately issue orders withdrawing miners from the affected area of the mine until MSHA determines that the violation is abated.

Since 2000, MSHA has issued 17 withdrawal orders at the Upper Big Branch Mine based on unwarrantable failures. The last order was issued in 2009.

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4) MSHA does not have the authority to shut down a mine based upon a set number of violations. However, MSHA does have the authority to place a mine into a “pattern of violation” category based upon a number of criteria including the number of serious violations in a 24 month timeframe.

In 2007, in response to a spike in significant and substantial violations in the previous 24 months, MSHA notified Upper Big Branch that it was being placed on “potential pattern of violation” status, the first step in the pattern of violation process. If a mine ultimately ends up in “pattern of violation” status, MSHA can issue withdrawal orders for every serious violation until each violation is fixed.

This is a significant event, and one that mine operators are careful to avoid.

Under the existing MSHA policies, once an operation is placed into “potential pattern of violation” status, the operation is given an opportunity to reduce its levels of violations by 30%, or below industry averages for comparable mines. If the operation fails to do so, it will be placed into “pattern of violation” status.

The Upper Big Branch Mine was placed into a “potential pattern of violation” category in

2007. Massey quickly reduced its level of adjudicated serious and significant violations by more than 30%. As such, MSHA removed Upper Big Branch from the potential pattern of violation status in 2008.

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­ 7 ­  Companies’ use of litigation to avoid a pattern of violations finding removes an important tool from MSHA’s toolbox, and forces the agency to rely on citations and the threat of fines as its primary tool to encourage even the most problematic mines to reverse their safety problems. While operators are required to fix the hazards while citations are pending, MSHA must respond to violations one at a time. MSHA can fine operators – in this case over $1.1 million since January 2009 -- and it can require an operator to remove miners from hazardous conditions until they are fixed. However, its tools to respond to systemic problems at a mine under current policies are much more limited.

The policies this Administration inherited make it relatively easy for operators like Massey to avoid pattern of violation status. In fact, MSHA has been able to place only one mine into pattern of violation status, and that order was revoked when one of the violations on which it was based was thrown out through the contest process. As Assistant Secretary for Mine Safety and Health Joe Main mentioned in his congressional testimony on February 23, 2010, MSHA has been reviewing potential changes to the pattern of violation rules to make it more difficult for operators to avoid being placed into pattern of violation status.

­ 8 ­  Part IV: Preliminary Proposals for Reforming Mine Safety Laws and Practices The Department of Labor and MSHA are committed to taking action now to stop reckless mine operators from, risking the lives and health of their workers.. Some of these steps are within our own power, requiring changes in regulations or our own practices. Other steps, however, will require actions by Congress. All of these steps can be taken without undermining the activities of the many mining companies that responsibly protect their workers’ health and safety.

Overview Today, some mine operators can consistently engage in dangerous violations of the law, and then avoid penalties by aggressively contesting every citation. DOL recommends

immediate action to change these companies’ behavior by:

 Strengthening MSHA’s capacity to investigate, prevent, and punish dangerous wrongdoing;

 Enhancing miners’ ability to protect themselves; and  Bringing cases to justice with greater speed and certainty.

These recommendations are preliminary. These steps will not address every problem in mine safety enforcement and regulation. Instead they are a starting point for the important and difficult discussions to come about how the federal government, working with our partners in state governments and stakeholders in the mining industry, can better prevent catastrophic accidents like the Upper Big Branch Mine disaster from ever happening again.

Compel Chronic Violators to Provide for the Health and Safety of Their Employees  Streamline the criteria for placing mines into the POV program;

 Consider greater use of other authorities for stopping scofflaw mine operators, such as injunctive relief.

Give MSHA and Prosecutors More Tools to Investigate and Punish Wrongdoing  Empower MSHA to use subpoena authority to require companies and individuals to turn over information promptly when needed;

 Enhance criminal penalties so that knowing violations of key safety laws are felonies, not misdemeanors.

Empower Miners to Protect Themselves  Support statutory changes that would enhance whistleblower protections for miners.

 Enhance the law so that miners do not lose pay while a withdrawal order is in effect.

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Bring Chronic Violators to Justice More Quickly  Eliminate the backlog of cases before MSHA, building on the Administration’s proposed 27% increase in FMSHRC’s budget this year  Require mine operators to put significant penalty amounts into escrow, and otherwise ensure that contesting cases for the sake of delay does not pay.

DOL does not believe this is an exhaustive list of steps that should be taken in the coming weeks and months to protect the country’s coal miners and their families.

Other critical steps must be taken - particularly in requiring mines to take specific steps to address controlling mine gases like methane and coal dust through rock dust, and ensuring mines properly plan to prevent safety and health hazards. DOL is now reviewing the full range of legal and regulatory authorities, as well as management reforms, to determine steps to ensure that another disaster like the explosion at the Upper Big Branch Mine does not happen again.

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