The pattern of violations (POV) process looks at operations which have a history of “recurrent significant and substantial violations” of federal standards.

The inspector general’s report, released last week, highlights flaws in MSHA’s past implementation of its authority with regards to the procedure and claims the agency set limits on the number of mines scrutinized for potential POVs due to resource limitations.

“Upon receiving the alert memorandum from the inspector general, I ordered inspectors to make an additional visit to every one of the coal-producing mines on the list that the IG said were not put on potential POV status in 2009 because of resource issues,” MSHA assistant secretary for mine safety and health Joseph Main said.

“Prior to this action, these mines had been subjected to numerous inspections and enforcement activity.”

MSHA said the screening process for POV that the IG’s office is examining is no longer in use.

“The career leadership at MSHA was following the existing policies in place prior to my arrival at MSHA, and I do not agree with these policies,” Main said.

“Going forward, decisions about potential POV and POV enforcement actions will be based solely on what is best for the safety and health of the miners, within legal and regulatory constraints.”

Federal officials are now intending to rewrite POV policies before the next round of scrutiny decisions, which are slated to be released later this year.

“This will ensure that the first POV determinations under my watch will be handled differently.”

Main said he agreed with and understood the concern shown by the IG’s office regarding district managers being asked to limit mines targeted for potential POV.

This is especially true in the District 4 office, he said, because it has the highest concentration of coal mines in the US.

“A better response would have been to split District 4, so that all of the mines that need attention can receive attention,” Main pointed out.

“We have advocated for exactly that and are exploring ways to accomplish it. This is a better approach to handle the workload issues in District 4.”

The agency also released a group of nine operations which were removed from potential POV scrutiny due to resource constraints, confirming the IG report’s concerns.

All are located in West Virginia and have been subject to numerous inspections and enforcement activities since being discovered.

They include:

• Sentinel Mine – Wolf Run Mining – International Coal Group
• No. 1 Mine (now Bronzite III) – Jacob Mining – Wolford Jeffrey
• Coalburg No. 2 – Rio Group – Richard H Abraham
• Copley Trace Surface mine – Argus Energy WV – James Booth
• Pond Creek Mine No. 1 – KWV Operations – Robert Helton
• Deep Mine No. 8 – Argus Energy WV – James Booth
• Black Castle Mining – Elk Run Coal – Massey Energy
• Justice No. 1 Mine – Independence Coal – Massey Energy
• Mine No. 6 – Harvest (now Laurel Fork) –Time Coal – Dick J. Plaster

One of the involved mine operators responded to the news on Thursday, telling various media outlets that its included mine, Wolf Run’s Sentinel operation, "does not merit, and has not merited, listing for a pattern of violation".

"While the mine experienced disappointing compliance performance in 2008, the company addressed all issues promptly to bring about quick improvement in compliance and incidence rates," the company said, adding that its performance has only improved in 2009 and 2010 to date.

The inspector general said in the report of its findings, released last week, that it had several concerns about the POV process that required “immediate corrective action”

In a two-page memorandum document from assistant inspector general for audit Elliot Lewis, the office claimed that federal industry regulators had inappropriately removed 10 coal mines from its safety violation pattern list.

The report was requested shortly after the Upper Big Branch explosion on April 5 that killed 29 workers. It does not name the 10 mines removed from scrutiny.

"In March 2009 when the Coal Mine Safety and Health administrator notified his district managers of mines meeting the POV screening criteria (including scores for each mine) he directed them to 'select no more than one mine on the initial screening list per field office and a maximum of three mines per district'," the report stated.

"We were told this guidance was necessary to address resource limitations. However, this instruction set a limit that was inappropriate for this enforcement program."

The report also noted that the initial screening procedure for POVs included the ability of district administrators to remove mines from scrutiny with written justification from a district manager.

Between 2007 and 2009 the inspector general said it has counted five POV analyses that identified 89 operations for potential pattern of violation status.

“For a variety of reasons (not yet validated through audit procedures), MSHA officials removed 21 of these mines from the initial screening lists," the report said.

"Mines that were removed did not receive letters notifying them of potential POV status nor did MSHA monitor these mines for improved rates of significant and substantial violations."

While some were justified in their removal – such as a change of status to non-producing – it found at least 10 mines were removed on the instruction of the Coal Mine Safety and Health administrator, subjecting miners to increased safety risks.

Both Department of Labor secretary Hilda Solis and MSHA head Main responded to the report almost immediately, reiterating that MSHA provided full support and cooperation to the inspector general’s office during the process, and acknowledged that the system is “fundamentally flawed and needs to be fixed”

Both also pledged to revise the administrative procedures surrounding the effort for the determinations to be made for 2010’s POV scrutiny while working on long-term legislative and regulatory reforms.

Main also said MSHA welcomed Lewis’ continued partnership in identifying the issues that needed to be fixed, while it remained dedicated to that same goal.