Sequestration begins to hit MSHA

April 2, 2013

Legal teams that were assembled by the U.S. Labor Department to assist with the backlog of cases facing the Mine Safety and Health Administration (MSHA) began to be dismantled as part of cuts being made as part of the Congressional sequestration.

Following an explosion at the Upper Big Branch Mine in April 2010 left 29 miners dead, legal teams were hired to deal with a backlog of contested mine safety citations. The number of unresolved appeals had grown to 16,600.

However, because the sequestration, two of the five offices of the legal effort — the Litigation Backlog Project — are being shuttered, and 30 of the 74 lawyers hired for the effort will be laid off by June 1, The Washington Post reported.

The move is being heavily criticized by some members of Congress, the miners union and families of the 29 Upper Big Branch miners who were killed.

By contesting citations from the MSHA, mine owners have been able to avoid racking up high numbers of serious violations that would place them in the agency’s “pattern of violation” program. There they would be more closely scrutinized, and their operations could be restricted or even shut down.

And as long as citations are under appeal, the agency cannot issue the heavier fines allowed under the law for repeated violations of the same safety hazard.

Labor Department officials said the project was meant to be temporary and that sequestration cuts accelerated the timetable for “drawing down” the number of lawyers assigned to it. Department officials said the cuts will save $2.1 million The Washington Post reported.
Congress provided $22 million for the project, which included hiring additional judges and clerks.

The caseload before the Federal Mine Safety and Health Review Commission is down to 10,400, and the average wait time has been reduced by several months.

Robert J. Lesnick, chief judge of the review panel, said the commissions’s goal is to reduce the caseload to 5,500, with wait times closer to 180 days. Without the cuts, he said, it would have taken at least two years to get to that point.

In a letter to Seth D. Harris, the Labor Department’s acting secretary, four members of Congress criticized the logic behind the department’s decision to make such severe cuts to a single program (Click here) . In conversations with department officials, congressional staff have been told that the cuts were aimed at reducing the number of furlough days — forced by sequestration — that other attorneys would have to take from the department’s Office of the Solicitor.

“While the sequester is imposing hardships on multiple agencies within DOL, these staff cuts to the backlog effort are plainly disproportionate relative to other work carried out in the Solicitor’s Office,” the letter said. “We find this decision to be unacceptable and instead we believe the Solicitor’s Office should apply only proportional cuts to this program activity, so that efforts can be maximized to reduce the backlog of mine safety cases.”

After the Upper Big Branch disaster, the MSHA began to work on new regulations to allow it to place mines in the “pattern of violation” program based on the number and severity of the citations that were issued — even if they are being disputed. The new regulations took effect April 1.

The National Mining Association and four other mining trade associations filed a lawsuit this month challenging the new program on legal grounds, saying mine operators are being denied “due process” rights when they are placed in the program based on citations that are under appeal at the review commission.


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