Gaming the System—The death of 29 coal miners in Massey Energy’s Upper Big Branch Mine in April was not exactly predicted when the House Committee on Education and Labor met on February 23—to address a failed safety inspection process. But the industry’s response to tougher regulations that followed a spike in miners’ deaths midway through George W. Bush’s two terms suggested that disaster was looming. In 2006, Congress passed the Mine Improvement and New Emergency Response (MINER) Act. A “pattern of violations” provision in the law provides escalating penalties and accelerated inspection schedules for mines that receive repeated citations for infractions that put miners at risk. In response, companies began appealing their citations, creating a backlog.

Committee Chair George Miller (D-CA) explained. “In 2006, the review commission had a backlog of 2,100 cases. Today, the backlog has skyrocketed to 16,000 cases … awaiting adjudication,” Miller said. That delay allows most companies to defer their court dates and avoid enhanced penalties for as long as two years. Miller said that the backlog created by the abuse of the appeals process has allowed 48 mines where more than 6,000 miners currently work to continue operating without the enhanced penalties and increased inspections provided in the 2006 law.

Catch Me if You Can—It takes more than 600 days for the average contested citation for safety infractions at a mine to reach the final-order stage, said Mine Safety and Health Administration Director Joseph Main. According to Main, MSHA issued 515 citations and orders at the Upper Big Branch Mine in 2009, in response to an increase in safety violations. An additional 124 citations were issued at the mine through April 1 of this year, Main told a Senate Committee on Health, Education, Labor and Pensions hearing three weeks after the mining disaster.

Main told Iowa Democratic Senator Tom Harkin that Massey and other “bad actors” have successfully used a “catch me if you can” approach to safety compliance for years. Main said that Upper Big Branch, where the 29 miners died, is not Massey’s worst mining operation. “Three other Massey mines had more citations,” said Main. “The Department of Labor is in litigation to establish that one of these, the Tiller No. 1 Mine … is a pattern violator.” If the Labor Department prevails, its action against Tiller No. 1 will be the first time a mine has been placed on “pattern of violation” status since the passage of the MINER Act. Harkin, who chairs the committee, said Massey has evaded a “pattern of violation” status by appealing 97 percent of its significant and substantial violations in 2007.

Small Change You Can Believe In—At the Senate hearing MSHA Director Joseph Main said the agency is repairing the damaged regulatory system inherited from the previous administration. Main didn’t refer to his predecessors. The first George W. Bush appointee to fill the position Main currently holds was Dave Lauriski, who had spent his career in the mining industry. As MSHA’s director, Lauriski was part of a cover-up regarding a massive coal slurry spill by Martin Coal Company in eastern Kentucky in 2000. Martin paid a $3.25 million fine for what is considered one of the worst environmental disasters in the country. Martin Coal is also a Massey subsidiary. In 2004, Lauriski was replaced by Richard Stickler, who had worked for a Pennsylvania coal company for 30 years before briefly working for Massey Energy. Bush used a recess appointment to install Stickler after he was twice rejected by the Senate. Main had been retired since 2004, after serving 22 years as director of the United Mine Workers’ occupational safety and health department, when Obama appointed him to direct MSHA.

Big Coal Big Bucks—StopTheChamber.com, a collective of 150 corporate accountability advocacy groups, has singled out Republican connections to Massey Energy that it claims compromise the safety of miners. In a letter to Attorney General Eric Holder, StopTheChamber implies that Massey CEO Don Blankenship’s $13,000 in political contributions to Republican Senate Minority Leader Mitch McConnell, followed by Blankenship’s $100,000 contribution to the National Republican Senatorial Committee, influenced Bush Secretary of Labor Elaine Chao’s decision to shut down investigations of Massey Energy. Chao is McConnell’s wife. The coal industry appears to be a corporate sponsor of the Republican Party. Since 2000, coal interests have contributed $1.7 million to federal campaigns—88 percent to Republicans, according to OpenSecrets.org.