By December 20, 2017 Read More →

MSHA gets more time to settle ‘pattern of violations’ rule lawsuit

By KEN WARD JR.

Charleston Gazette-Mail

CHARLESTON, W.Va. — Coal industry lawyers and federal regulators from the Trump administration will have at least three more months to try to work out a deal to resolve a lawsuit that challenges an Obama Department of Labor rule that tightened enforcement efforts aimed at repeat violators of mine safety and health standards, a judge said Tuesday.

The additional time was needed, a government lawyer said, at least in part because President Donald Trump’s choice to run the department’s Mine Safety and Health Administration, is being brought up to speed on the case.

Settlement of the “pattern of violations” rule lawsuits, though, could create an uncomfortable situation for Trump MSHA chief David Zatezalo, because his former company, Rhino Resources, had twice received warning letters from the agency for repeated violations at one of its mines in West Virginia.

Zatezalo was briefed on the lawsuit and the settlement negotiations on Dec. 7, Labor Department lawyer Kari D’Ottavio told U.S. Magistrate Judge Elizabeth A. Preston Deavers during a telephonic hearing Tuesday morning.

“He’s still getting up to speed on this issue and many other issues at the agency,” D’Ottavio said. “We have new leadership at the agency and that adds an extra layer of complexity.”

Deavers and U.S. District Judge James L. Graham are presiding over two lawsuits filed over the MSHA rule, one by Murray Energy and several of its subsidiaries and another filed by various mining trade associations, including the National Mining Association, the Kentucky Coal Association and the Ohio Coal Association. The suits have been pending since late 2014 and early 2015.

The industry suits were filed to try to nullify changes the MSHA made to its “pattern of violations,” or POV, rule, an enforcement tool that went basically unused for three decades. Efforts to reform the 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.

Congress created the pattern-of-violations program in 1977, after finding that 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 Scotia Mine in Kentucky 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.

Details of the settlement talks in the lawsuits have not been made public.

Thomas Connor, a lawyer for Murray Energy, said that the industry side had submitted a detailed settlement proposal, but the government had not yet responded. D’Ottavio said that proposal was submitted to the government in early December and was still under review.

Asked by Deavers if the parties were optimistic about reaching a settlement, D’Ottavio did not commit to that description.

“We’re certainly in discussions and [are] reviewing proposals, but at this point we can’t say ‘yes or no, this will end in a settlement’,” D’Ottavio told the judge.

Deavers said that the motion by the parties to keep the case on hold for 90 more days for additional settlement discussions would be granted.

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