MSHA said late Tuesday that Judge David Barbour handed down an oral decision that the 29 violations the operator was contesting did not justify the basis for issuance of a pattern notice because of severity level, though the agency believes otherwise.
“The result makes clear the need to reform the broken pattern of violations system,” MSHA officials said.
"Judge Barbour agreed that the company committed all 29 violations, but he did not find a pattern because he concluded that only 19 violations were significant and substantial. To place Tiller No.1 Mine on a pattern, 25 of those violations needed to be upheld as S&S.”
Federal officials are arguing that the citations being disputed by Massey all involve serious violations that could lead to accident and injuries, including hazardous roof or rib conditions, inadequate pre-shift examinations, inadequate ventilation, hazardous accumulations of combustible materials, hazardous electrical conditions and the use of non-permissible underground equipment.
"We believe that this case exemplifies the need for reforming the definition of S&S so that we can more easily prove in court that genuinely hazardous conditions are S&S,” agency assistant secretary for mine safety and health Joe Main said.
He pointed to the specific example of non-permissible electrical equipment, noting that the Labor Department’s attorneys could not establish that Tiller mine’s use of the devices in the operation’s gassiest and most dusty areas was an S&S violation.
“MSHA believes that permissibility violations are obvious candidates for an S&S designation,” Main said.
He also noted that the agency was “disappointed” in the ruling, and the decision underscored its desire to rectify issues with the pattern of violations system.
"The pattern of violations system was designed to force persistent violators of safety rules to clean up their act,” he said, noting that no mine had ever been successfully placed on POV status under the current system.
“As today's ruling demonstrates, even mine operators with serious safety problems can evade pattern of violations status. The system is broken and we will fix it."
Massey spokesperson Jeff Gillenwater told ILN Wednesday that that company was pleased with the outcome of the case.
“This case demonstrates why operators should have the opportunity to have citations reviewed in the appeals process. Even the most conscientious inspectors can make errors.”
