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MSHA discovers fine assessment problem

Controversy involving Letcher operator leads agency to detect its own failure

A controversy involving a Letcher County coal operator is bringing attention to the failure of the federal Mine Safety and Health Administration to issue penalties for hundreds of citations issued since 2000.

Over the last six years, the Department of Labor’s Mine Safety and Health Administration did not assess civil penalties for about 4,000 violations, according to preliminary MSHA data.

Most of the violations involve situations where MSHA did not assess monetary penalties within 18 months of issuing a citation. Agency officials believe that is the legal time limit for doing so.

MSHA officials emphasized that less than 1 percent of all violations cited by agency inspectors were involved, and said steps are being taken to fix the problem.

The agency’s spokesman says the problem could extend as far back as 1995.

“And we would guess it goes back far beyond 1995, but because of a lack of electronic records before that year, I can’t verify that,” MSHA spokesman Matthew Faraci told The Associated Press in a telephone interview earlier this week.

“Given that this seems to have been an endemic problem that has been with the agency for quite some time, the part that we’re optimistic about is that we know about it and are working to fix it.”

MSHA discovered the problem after it recently checked into whether H&D Mining, co-owned by Gary Wayne Bentley of Jackhorn, had been assessed a penalty following a Dec. 30, 2005, accident where a coal miner bled to death after not receiving proper first aid, the Charleston, W.Va., Sunday Gazette Mail reported.

MSHA’s review showed the company had never been fined, but Faraci told the AP that the maximum fine was assessed Jan. 18 for $60,000.

“There is no doubt that there is a problem,” MSHA director Richard Stickler told Gazette- Mail reporter Ken Ward Jr.

“There’s not a trend that shows it’s increasing. But it is a problem that appears to have been around for a few years,” he said.

Preliminary data showed that penalties had not been assessed against about 4,000 citations issued by the agency between January 2000 and July 2006. Stickler told the newspaper that the review also showed that penalties had never been assessed for a few hundred citations issued in 1996.

The agency has had the authority to assess monetary fines for violations since 1969. When MSHA issues a citation against a mine operator, the agency has 18 months to assess a penalty. The time period stems from a court case and is spelled out in a 1999 MSHA regulation, Jay Mattos, MSHA’s director of assessments told the newspaper.

In a Jan. 24 interview, Stickler told the Gazette-Mail he was told of the problem a week earlier and had ordered his staff to quickly correct it.

“Any violation that we write and don’t assess a penalty for, that’s a big problem to me,” Stickler said.

The Gazette-Mail reported that MSHA officials apparently stumbled upon the fine assessment problem while discussing a recent Louisville Courier-Journal article about inaction by Kentucky state officials in the death of miner Bud Morris at H&D Mining’s Mine No. 3 in Harlan County. (The article was reprinted in the Jan. 23 issue of The Mountain Eagle.)

On Dec. 30, 2005, Morris bled to death after his legs were severed when a loaded coal car accidentally rammed him.

MSHA investigators concluded “complications to the victim’s recovery occurred because proper first-aid was not given … the mine operator did not ensure that the section foreman, as the select supervisor, was properly trained to perform firstaid.”

MSHA cited H&D Mining, stating “this injury became a fatality because basic first-aid was not properly performed prior to the injured employee being transported.

“H&D’s failure to conduct the required select supervisor firstaid training contributed to the victim not receiving the proper first-aid at the mine,” the MSHA citation said.

On Jan. 25, MSHA records indicated H&D Mining had never been fined for this citation, the Gazette-Mail reported.

Over the last few weeks, MSHA officials apparently discovered that fact, and it led them to investigate how many other citations had also gone without any fines.

Tony Oppegard, a lawyer for Morris’ widow, Stella Morris, told the Gazette-Mail he was shocked to learn that MSHA was not issuing the required fines.

“It’s unbelievable, really,” Oppegard told the newspaper. “The bottom line is, why would it take them 18 months to assess a penalty in the first place?

“This is very troubling,” Oppegard said. “To think that you can have a fatality like what occurred in Bud’s case that is not addressed by the agency is going to be troubling to the family.”

Not issuing penalties is the latest issue regarding agency operations in recent months.

In November, the U.S. Department of Labor’s inspector general released an audit that showed MSHA had failed to carry out required inspections at 15 percent of the nation’s underground coal mines.

During his recent speech, Stickler noted that the agency was on track to carry out required quarterly inspections at all U.S. underground coal mines for the first time in years.

In a speech given to West Virginia coal operators earlier this month, Stickler told mine operators that MSHA had improved its inspection and assessment process over the past year. He said the number of assessments against coal operators had increased from $20.2 million in 2006 to $40.4 million in 2007.

Compiled from Charleston, W.Va., Sunday Gazette-Mail and Associated Press reports.

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