Published: December 11, 2017 |

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The Trump administration is asking a federal judge for more time to work out a legal settlement with Murray Energy and several trade associations in a mining industry lawsuit over a federal rule meant to toughen enforcement at coal operations with repeated safety violations, court records show.

On Friday, lawyers for both sides in the case filed a status report that asked U.S. District Judge James L. Graham to keep the case on hold for another 90 days “to facilitate these ongoing discussions” toward a settlement.

The industry lawsuits, pending since late 2014 and early 2015, were filed to try to nullify changes the U.S. Labor Department’s Mine Safety and Health Administration made to its “pattern-of-violations” authority, an enforcement tool that went basically unused for three decades.

Efforts to reform MSHA’s use of its authority over repeat violators began after a series of mine disasters in 2006, but an actual rule change was not finalized until January 2013, under then-agency chief Joe Main, following the deaths of 29 miners in an explosion at Massey Energy’s Upper Big Branch Mine.

Changes in what MSHA refers to as the “POV” rule could be uncomfortable for new agency chief David Zatezalo, whose former coal company, Rhino Resources, twice received pattern-of-violations warning letters because of repeated safety violations at one of its mines in West Virginia. It’s not clear what kinds of changes in the rule or enforcement of it might be made as a result of any eventual legal settlement.

The cases have been on hold since May, pending a potential settlement by the Trump administration.

In their status report, filed Friday as required by the court, the lawyers said the parties had “convened a series of regularly scheduled settlement conferences via telephone, attended by counsel for all parties and, in most instances, representatives of the parties in both of the related cases.”

Lawyers have also “communicated via email and telephone throughout the pendency of the stay to exchange information and discuss the parties’ respective positions,” the court filing said.

Congress created the pattern-of-violations program in 1977, after finding repeated citations and fines by federal inspectors weren’t enough to improve safety performance and prevent a series of explosions that killed 23 miners and three inspectors at the Kentucky Scotia Mine in March 1976.

Under the program, mines with a history of serious safety problems are kicked into a tougher enforcement bracket. Each time an additional serious citation is issued, that part of the mine is closed. Mines can have the pattern-of-violations designation lifted only if they go an entire quarterly inspection without a series violation.

Among other changes, the MSHA rule approved in 2013 would stop mine operators from using appeals of safety citations to avoid tougher enforcement and do away with MSHA warning letters that gave companies additional time to improve before facing enforcement.

Prior to the April 2010 explosion at Upper Big Branch, mine owner Massey Energy had avoided being classified as a pattern violator by appealing hundreds of violations, clogging up the government’s appeals system and because of MSHA inaction the agency later blamed on a computer programming error.

The industry lawsuits allege the MSHA pattern-of-violations rule goes beyond the scope of the agency’s legal rulemaking authority and deprives mine operators of due process of law.

In an earlier challenge of the MSHA rule, the 6th Circuit Court of Appeals said it did not have jurisdiction over the case because the rule is not, strictly speaking, a health or safety standard. Challenges of MSHA health or safety standards would go directly to a federal circuit court, rather than district court, the 6th Circuit ruling said.

Source: Charleston Gazette-Mail

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