Charleston Daily Mail - Guest Opinion by Gene Kitts - January 11, 2011
I was surprised to see the Washington Post article "Big Coal digs in against government safety push" on the front page of the Jan. 5 Daily Mail. I actually thought the carrier had mistakenly delivered the Gazette instead of the Daily Mail.
This article was incredibly one-sided and did not do justice to the complex issue of mine regulation and safety violations.
The allegation that companies "game" the system by appealing violations is basically wrong for the vast majority of operators. An appeal is rarely made regarding the fact of a violation but usually involves the discretionary factors that a Mine Safety and Health Administration inspector must consider.
Penalties are assessed based on the inspector's personal view of the level of negligence, the likelihood of occurrence, the potential for injury or death, and the potential number of persons affected.
Depending on the factors, the penalty can range from less than $1,000 to hundreds of thousands of dollars, so any disagreement with the subjective factors warrants an appeal to seek a substantial reduction in cost.
For example, an MSHA inspector observed a damaged roof bolt in an underground mine. The roof bolt had been marked for replacement but the area directly beneath it had not been barricaded.
The inspector wrote a violation stating that the damaged bolt posed a risk of death to all 14 workers on that section, so the proposed penalty was very high.
A reasonable person would ask how 14 miners could be expected to stand under a single roof bolt that essentially supports a 4-foot by 4-foot area.
On appeal, the hearing judge agreed with the company and the fine was dramatically reduced.
The right to contest the subjective factors of a violation provides a critical balance to an inspector's discretionary authority. There is also the matter of the constitutional right of due process (even for a coal operator) involved in this debate.
Mine safety, particularly safety violations and the appeal process, could be a good topic for a well-researched article by a newspaper that tries to be fair. The Washington Post is obviously not that paper.
Gene Kitts is senior vice president of mining services for International Coal Group Inc.