Labor Department ‘talking points’ on the disaster

April 8, 2010 by Ken Ward Jr.

Mine Explosion

A sign for the miners is seen in front of a church in Eunice off of Route 3, W.Va. on Thursday, March 8, 2010. Rescuers running on adrenaline waited Thursday for a massive drill to vent noxious gas so they could safely resume the underground search for four coal miners missing in an explosion that killed 25 colleagues.(AP Photo/The Registr-Herald, Rick Barbero)

Here’s an interesting document I wanted to pass along. It’s being distributed to political leaders by the Department of Labor. I’ll let it speak for itself:

“Every mine explosion is preventable, and it is the responsibility of the mine operator to ensure of the health and safety of the miners at all times – not just when MSHA inspectors are present.”

Why didn’t MSHA do more to crack down on Massey, when it was known they had a pattern of safety problems and fatal accidents going back to 2000?

Enforcement is done on a mine-by-mine basis.  MSHA used every available tool to address the safety issues at the Upper Big Branch Mine, and increased the amount of time inspectors spent in the mine each year since 2007.  MSHA’s tool box is, however, limited to issuing citations, levying fines, and temporarily withdrawing miners and/or equipment from specified areas of the mine, in limited circumstances.  MSHA does not have the authority to permanently close or shut down a mine based upon a set number of violations, or any other criteria.

When an MSHA inspector discovers a health or safety violation, he or she issues a citation.  If they see it, they cite it.  The majority of MSHA-issued citations require corrective action within a reasonable amount of time based on the seriousness of the risk.  Once a citation is issued, the operator is subjected to a penalty and the operator must abate the hazard.  Since 2000, MSHA has issued over 2,400 citations and levied over $2 million in penalties at the Upper Big Branch Mine.

Mine Explosion

Friends and family of coal miner Steven Harrah, 40, of Cool Ridge, walk into the Rose and Quesenberry Funeral Chapel in Shady Springs, W.Va on Thursday, April 8, 2010. (AP Photo/Jeff Gentner)

MSHA can only stop operations at a mine, or a portion of a mine, temporarily and can only do so in limited circumstances.  MSHA does not have the authority to permanently stop operations or shut down a mine based upon a set number of violations, or because of the company’s general safety record.

MSHA can temporarily withdraw miners from areas of a mine under four circumstances:

1) MSHA can withdraw miners from a mine, or in a section of a mine, if an inspector finds a condition which presents an imminent danger.  Since 2000, MSHA issued 5 imminent danger orders that terminated at least some mining operations at the Upper Big Branch Mine, the last order issued in 2009.

2) If MSHA finds a violation it issues a citation to the mine operator.  If that violation is not abated within a prescribed period of time, MSHA can stop mining operations by withdrawing miners from the affected portion of the mine until the operator corrects the condition and MSHA ensures that the hazard no longer exists.  Since 2000, MSHA has issued 17 of these shut down orders at the Upper Big Branch Mine.  Four of these were issued in 2009, and one in 2010.

3) If MSHA finds that a violation was the result of the operator’s “unwarrantable failure” to comply with a safety rule, MSHA puts the operator on notice that it must exercise more diligence to find and fix safety violations before MSHA finds additional violations.  The unwarrantable failure standard means that an operator knew, or should have known, that the particular action or failure to take action was in violation of health and safety rules.  If further MSHA inspections reveal additional “unwarrantable failure” violations, MSHA can immediately issue orders withdrawing miners from the affected area of the mine until MSHA determines that the violation is abated. (Since 2000, MSHA has issued 17 of this type of shut down order at the Upper Big Branch Mine; the last order was issued in 2009.)  Going forward, if similar unwarrantable violations are discovered, MSHA has the authority to issue additional withdrawal orders.  These orders remove miners from the affected areas until an MSHA inspection reveals no similar violations in the mine.  Remarkably, MSHA has issued 62 of these withdrawal orders at the Upper Big Branch Mine based on repeated, unwarranted activity since 2000.  Since 2009, 58 of this type of withdrawal order have been issued.

4) MSHA does not have the authority to shut down a mine based upon a set number of violations.  However, MSHA does have the authority to place a mine into a “pattern of violation” category.  When MSHA puts a mine on a pattern of violations status, MSHA can issue withdrawal orders for every serious violation that MSHA finds until the violation is fixed. The Upper Big Branch Mine was placed into a “potential pattern of violation” category in 2007, but the mine met the legal criteria to be removed from that status by reducing their number of serious violations shortly after being placed in that category.

The law requires MSHA to inspect all underground coal mines at least four times per year.  If MSHA has cause to believe that more inspections are warranted, it can and will increase the frequency of the inspections.  This mine received considerable attention from MSHA in the last four years.  In 2010, MSHA enforcement personnel have already been on site 51 days and have logged 803 hours inspecting this particular mine.  In 2009, MSHA had enforcement personnel at the Upper Big Branch mine 180 days for a total of 2,999 hours.  In 2008, enforcement personnel were present 153 days for a total of 1,845 hours.  In 2007, MSHA had enforcement personnel at the mine 135 days for a total of 1,586 hours of inspection time.

MSHA cited them 1,300 times but did you follow up on all of those citations?

Yes. Every citation requires the operator to take action to seek out and eliminate the hazard and an MSHA inspector ensures that every cited hazard is abated.  If a hazard is not abated within a reasonable time period, MSHA can require that operations stop at the affected section of the mine and that personnel and equipment are withdrawn until the violation is abated.  As a matter of policy, MSHA inspectors are required to follow up on every citation that has been issued to ensure that conditions resulting in the violation are abated.

Did you require some sort of safety plan at the mine? If so, can you provide a copy?

The law requires every underground coal mine to file a mining plan with MSHA.  At a minimum, each underground  mine is  required to get MSHA approval for a ventilation plan to control dust and methane, a roof control plan, a mine emergency response plan, fire fighting and evacuation control plan, and a training plan.  MSHA maintains a copy of these plans at the district office.  The mine operator is required to adhere to its approved  plans.

Did MSHA consider shutting the mine down? Weren’t all of those citations a red flag? Could and should you have prevented this accident?

As noted above, MSHA only has the authority to close a mine temporarily and under limited circumstances, and those orders end when the hazard that led to the order is fixed.  MSHA exercised this authority multiple times at this mine.  MSHA elevated its enforcement levels where repeat violations were noted and where the negligence of the operator suggested it do so.  Even with the large number of violations at this mine, MSHA lacked the legal authority to shut down the mine.

Every mine explosion is preventable, and it is the responsibility of the mine operator to ensure of the health and safety of the miners at all times – not just when MSHA inspectors are present.  The law requires every mine to file a ventilation plan to ensure that methane and coal dust do not reach levels that could result in an explosion.  These plans are approved by MSHA and the operator is required to follow these plans, which include requirements to monitor and control the atmosphere and prevent dangerous levels of methane and coal dust.  When these plans are properly filed and followed, explosions can be prevented.

APTOPIX Mine Explosion

Pam Napper, mother of deceased coal miner Josh Napper, holds Josh’s daughter Jenna Leigh Napper, 20 months, Wednesday, April 7, 2010 at a candlelight vigil in Cabin Creek, W.Va. Josh Napper was among the 25 miners killed on Monday including his uncle Timmy Davis Sr. and his cousin Cory Davis at an explosion at Massey Energy’s Upper Big Branch Coal Mine in Montcoal, W.Va. (AP Photo/Jeff Gentner)

5 Responses to “Labor Department ‘talking points’ on the disaster”

  1. BrettB says:

    This is a great post people need to read. All the haters of regulation think OSHA and MSHA have this unlimited power to destroy production when in reality they have very little power.

    Hopefully after the investigation into this, it will change for both.

  2. Karl Lohrmann says:

    I don’t find it even remotely acceptable that MSHA limit it’s enforcement process to specific incidences. Repeat incidences means the problems hasn’t and isn’t resolved. The very fact that there is game playing by the coal industry to limit the timeliness of enforcement actions from repeat or ongoing citations is even allowed by MSHA (because their supposed regulations dictate specific procedures and processes) means they lack control and enforcement powers to ensure accident such as this one won’t happen. They are just a culpable and responsible for these deaths as is Massey Energy. I find it totally irresponsible for a corporation’s CEOs such as Massey Energy in this day and age to deliberately put the very lives of their primary asset, the employees, jeopardy for any reason. It’s just not acceptable.

  3. rhmooney3 says:

    The federal Surface Mining Control and Reclamation Act of 1977 requires that every authorized representative (inspector) of the Secretary of the Interior have the full authority to cease — fully or partially — any surface coal mining and reclamation operation that creates a potential imminent harm to the health and safety of the public and/or potential significant damage to the environment.

    That MSHA inspectors are not so authorized is unbelieviable.

    I believe that OSHA inspectors have such authority.

  4. Lloyd Mackall says:

    MSHA has plenty of procedural regulatory power under the “pattern of violations,” imminent danger” and “unwarratable failure order.” With this history, a combination of these could have been used.

  5. USMRA says:

    Don’t be surprised if there are a few early retirement announcements coming soon. And please tell all the talking heads to stop with the phrase “make sure this never happens again”. In 2010, this is abominable. Earlier, Joe Main stated that the destruction of the blast extended 12,000 feet. The Robena explosion of 1962 was said to have gone 2 miles. Hello!

    Sooner or later someone has to step up and admit the failure for full implementation of the communication and tracking rules in the MINER Act. The excuse that it won’t work in all places doesn’t cut it, now or ever. Cell phones don’t work everywhere, but that doesn’t stop everyone on the planet from owning one. Install what they have now and upgrade when improvements come along.

Leave a Reply