By Ken Ward, Jr.

May 22, 2017 - The Trump administration is negotiating to settle legal challenges brought by Murray Energy and a collection of industry trade associations over a rule change meant to toughen federal coal mine safety enforcement following the deaths of 29 miners in the Upper Big Branch Mine Disaster in 2010.

A federal magistrate judge in Ohio has put two similar cases -- one brought by Murray Energy and the other by coal associations in Ohio and Kentucky -- on hold following a joint motion by the industry plaintiffs and the U.S. Department of Justice, representing federal mine safety regulators. The joint motion indicated the parties believe they can work out a deal that would resolve mining company objections to an Obama administration rule meant to beef up enforcement against repeat violators of standards meant to protect the nation’s miners.

“Rather than concurrently litigating and negotiating a possible settlement of the dispute, the parties are open to negotiating a mutually agreeable resolution that could avoid further litigation,” said the joint motion, filed earlier this month in U.S. District Court in Columbus.

The joint filing indicated that lawyers for the industry and the government had met on May 1 and agreed that settlement negotiations “were sufficiently promising to warrant a stay of this litigation.”

“The parties have since discussed their commitment to a structured series of conferences to consider a negotiated resolution,’ the joint filing said.

Murray Energy, whose CEO, Bob Murray, has been an outspoken supporter of President Donald Trump and the elimination of Obama-era regulations he says are harming the coal industry, is pleased that the litigation has been stayed so that a settlement can be negotiated, a spokesman said.

“The Obama administration’s pattern-of-violations rule is deeply flawed, clearly illegal, and does absolutely nothing to benefit the health or safety of our coal miners,” said Murray spokesman Gary Broadbent. “We view the court order as a positive development, and we look forward to discussing the necessary changes to this rule.”

Broadbent said that Bob Murray has not discussed this particular matter with Trump.

The industry lawsuits, pending since late 2014 and early 2015, were filed to try to nullify changes the U.S. Labor Department’s Mine Safety and Health Administration made to its “pattern-of-violations” authority, an enforcement tool that went basically unused for three decades. Efforts to reform 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 29 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.

Among other changes, the MSHA rule approved in 2013 would stop mine operators from using appeals of safety citations to avoid tougher enforcement and do away with MSHA warning letters that gave companies additional time to improve before facing enforcement.” Prior to the April 2010 explosion at Upper Big Branch, mine owner Massey Energy had avoided being classified as a pattern violator by appealing hundreds of violations, clogging up the government’s appeals system, and because of MSHA inaction the agency later blamed in a computer programming error.

The industry lawsuits allege that the MSHA pattern-of-violations rule goes beyond the scope of the agency’s legal rulemaking authority and deprives mine operators of due process of law.

In an earlier challenge of the MSHA rule, the 6th Circuit Court of Appeals said it did not have jurisdiction over the case, because the rule is not strictly speaking a health or safety standard. Challenges of MSHA health or safety standards would go directly to a federal circuit court, rather than district court, that 6th Circuit ruling said.