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Chapter 9

How could this happen? (The federal role)

“How did you let this happen?” That is the agonizing question posed by wives and parents and children of the miners killed in the Upper Big Branch disaster as they reflect on the role of federal and state mine safety officials responsible for inspecting the nation’s coal mines, for enforcing mine safety laws and for keeping their loved ones safe. “If you were doing your job,” they ask over and over again, “how could this have happened?”

In the days and months following the UBB disaster, officials with the U.S. Department of Labor and its Mine Safety and Health Administration (MSHA) have repeatedly defended the agency’s performance. They point out that that the federal Mine Act places the duty for providing a safe workplace squarely on the shoulders of the employer, and they insist that the operator is ultimately responsible for operating a safe mine.1 While that is true, it is not the whole the story.

As any student of mining history can attest, merely having laws on the books has never been enough to ensure worker safety. The ability of the government to rigorously enforce those laws is a hard-earned right paid for with the blood of coal miners.

In the United States, businesses are created to provide goods and services, as well as income for owners and investors. They also provide employment and income for workers. Because the goals imbedded in mine health and safety regulations have the potential to narrow an operator’s profit margin, some mine owners sometimes try to evade, ignore or sidestep those regulations. Workers need a strong watchdog to ensure that the drive for profit is not allowed to overshadow workers’ rights to a safe workplace. For coal miners, that watchdog at the federal level is MSHA.

MSHA receives a substantial annual appropriation from Congress to issue regulations and ensure that mine operators comply with them. In fiscal year 2010, the appropriation was $357.3 million. In part because of the 2006 Sago, Aracoma and Darby disasters, and at the request of the late Senator Robert C. Byrd, Congress gave the agency emergency funding to hire an additional 170 coal mine inspectors. In June 2008, MSHA reported “the overall number of coal enforcement personnel is at its highest level since 1994.”2

Located in 92 duty stations across the country, the agency’s 2,300 employees are responsible for inspecting coal mines and other operations, such as stone quarries, metal mines and dredging operations. They monitor a variety of mandates on mine operators, including requirements to submit and receive approval on engineering plans for ventilation, dust control and roof control, as well as for training and emergency response plans.

MSHA officials are authorized to enter mine property at will and are required to conduct complete mine inspections four times per year at every underground mine, two times per year at every surface mine and spot inspections every five days at mines that liberate excessive quantities of methane. At large coal mining operations, MSHA’s quarterly inspections may extend over the entire three-month period.

MSHA’s Mount Hope, West Virginia, District 4 has seven field offices scattered throughout southern West Virginia. The district is responsible for inspecting the Upper Big Branch mine, along with some 245 other coal mines in the region. Approximately 160 of those mines are active producing surface or underground operations. The large number of mines puts pressure on the staff, according to Mount Hope District Manager Robert Hardman, who said the average inspector in his district had only three years of experience.3

The inspector’s job, if done right, is a tough one. The best mine inspectors have keen eyes and ears, know regulations inside-out, can quickly digest the mine’s ventilation, roof control and other engineering plans, and thoroughly document their observations. They also need thick skin. Unlike highway patrolmen, who are engaged with speeders for ten minutes while writing tickets and then never see the offenders again, mine inspectors spend days in the mine with the very company officials they cite for safety violations. After writing citations, which, in effect, indicate that officials are not doing their job and, as a result, the company is going to be fined, the inspectors must return to the mine to make sure the safety violations have been addressed.

Some companies, Massey among them, relish the opportunity to challenge inspectors’ enforcement actions by disputing findings and arguing about what the law requires. Massey’s Vice President for Safety Elizabeth Chamberlin reportedly took a violation written by an inspector, looked at her people and said, “Don’t worry, we’ll litigate it away.”4 Inspectors must be able to defend their findings on the spot and explain how the rule protects miners. Some inspectors find it difficult to exert tough authority. As one long-time MSHA official told investigators, “Massey trains our inspectors better than we do.” He meant that the way inspectors are treated during inspections at Massey mines impacts the enforcement attitude of the inspectors.

Realizing that some companies are more prone to test the boundaries of safe practices, the Congress gave MSHA the power to establish a “pattern of violation” category to address mine operators who are cited over and over again for “significant and substantial (S&S)” violations. MSHA was given the authority to determine what constitutes a “pattern of violation,” and the agency is responsible for notifying mine operators when they fall into this category. After that, any S&S violation issued by an inspector within 90 days will result in miners being ordered out of the affected area.5 MSHA, however, never used this tool until April 12, 2011, when two coal mines – one in Leslie County, Kentucky, and another in McDowell County, West Virginia, were placed on pattern of violation status.

It wasn’t until 2006, when the Sago, Aracoma and Kentucky Darby disasters brought attention to the unused “pattern of violation” provisions of the Mine Act that MSHA began to notify a few operators that they had a “potential” pattern of violation. Of the 20 operators who were sent those warning letters in December 2007, Massey Energy mines received four of them. None of these mines actually received stiffer sanctions because as soon as they reduced their violation rates, they were taken off the “potential pattern of violation” list.

Looking just at the numbers, federal officials were kept busy at UBB. Inspectors spent 1,854 hours at the mine in 2009, nearly twice the time as in 2007.6 During 2009, they wrote 515 citations and orders for safety violations, including 48 withdrawal orders for repeated significant and substantial (S&S) violations.7 The monetary penalties proposed for violations in 2009 and early 2010 totaled nearly $1.1 million.8

Additional actions could have been taken. Several provisions of the MINER Act, passed in the aftermath of the 2006 disasters, gave MSHA tough new enforcement tools to use with recalcitrant mine operators.9 Among these was the authority to issue “flagrant” violations, with fines of up to $220,000, against companies which repeatedly failed “to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that … reasonably could have been expected to cause death or serious bodily injury.”

MSHA has used the authority more than 125 times at coal mines during the last five years, issuing fines of $19.5 million.10 But, despite the fact that the Upper Big Branch mine was cited dozens of times in the year preceding the disaster for violating ventilation plan requirements, MSHA never cited Upper Big Branch for a flagrant violation. Even as they have asked for more enforcement tools, MSHA officials have not explained why they failed to use the “flagrant” tool at UBB. An MSHA spokesperson said it is a matter being examined by MSHA’s “internal review” team.11

Despite MSHA’s considerable authority and resources, its collective knowledge and experience, the disaster at the Upper Big Branch mine is proof positive that the agency failed its duty as the watchdog for coal miners.

Equally disturbing is the fact that high-ranking MSHA officials apparently were aware that the agency was falling short in its responsibilities. On March 25, 2010 – less than two weeks before the disaster – MSHA chief Joe Main submitted a required report to the U.S. Senate Appropriations Committee, which outlined widespread lapses in enforcement.12

An audit of 25 field offices during 2009 conducted by MSHA’s Accountability Office found incomplete inspections, failure to monitor mines liberating high amounts of methane and inadequate supervisory actions. Auditors found that in 21 of the 25 field offices, supervisors failed to conduct in-depth reviews to make sure enforcement levels and actions were in accordance with the agency’s policies and procedures. In 20 field offices, the auditors found inadequate evaluation of the gravity and negligence of the health and safety violations issued against operators. In 15 offices, auditors found that inspectors failed to adequately document findings so that enforcement actions would be able to withstand legal challenges.

Although the report did not reveal which field offices were audited, the results suggest a troubling and widespread pattern of oversight failure.13 After pressure from lawmakers and the press, MSHA on April 15, 2011, released portions of its audit findings.14 MSHA’s lack of transparency further diminishes confidence about the agency’s ability to regulate the industry. Had the results and locations of the offices audited been revealed at the time the audits were completed, miners and their families would have been put on notice that they were working at mines where MSHA’s performance was not up to standard. Instead, the public learned about these deficiencies more than a year later and only because of the determined efforts of a dogged newspaper reporter.

The reporter was Ken Ward, Jr., of The Charleston Gazette, who also reported in September 2007 that MSHA failed to meet its statutory responsibility to conduct mandatory inspections in the Mount Hope district. “Federal regulators are behind schedule this year to complete required quarterly inspections at more than 60 percent of southern West Virginia’s underground coal mines,” he wrote.15

This revelation came just months after the completion of an internal review by the team assessing the Mount Hope district’s enforcement at Massey Energy’s Aracoma Alma #1 mine, where two miners needlessly died in a preventable fire. The internal review team said they “were shocked by the deplorable conditions of the mine”16 and concluded that managers in the Mount Hope district failed to promote the importance of strict enforcement of the Mine Act and adequately supervise and oversee inspection activities.

Tragically, investigators probing the UBB disaster have made similar characterizations about conditions. The failures at Upper Big Branch were not minor. They went to the very heart of mine safety basics – methane, ventilation, rock dusting – and they also could be observed in the failure to apply the best of modern technologies to safety efforts.

Failure #1: Disregarding the documented risk of methane outbursts at UBB.

The Upper Big Branch Mine was a gassy mine. It liberated about one million cubic feet of methane per 24-hour period, and, as a result, was subject to special spot inspections.17 More significantly, the UBB mine had experienced at least three major methane-related events. The first occurred in January 1997,18 another in July 2003 and a third in February 2004. All took place in longwall mining sections.

Witnesses to and investigators of the 1997 incident include a number of individuals who remain employed by MSHA, the West Virginia Office of Miners Health Safety and Training and Massey Energy.19

Upper Big Branch management elected to consider each methane outburst or explosion as an anomaly. MSHA’s responsibility, as the watchdog, was to recognize them as evidence of hazards unique to this mine (and mines in similar coal seams) that warrant special precautions. MSHA technical experts who investigated the 2003 and 2004 outbursts indeed did recommend special precautions.20 However, officials in MSHA’s Mount Hope district office did not compel (or to our knowledge even ask) UBB management to implement those recommendations. Senior officials in the Mount Hope office couldn’t explain why no action was taken, but agreed in retrospect that the methane outbursts in 2003 and 2004 were extraordinary events deserving special attention. District manager Robert Hardman observed, “A prudent mine operator would have taken action in a mine if you had an incident that this memorandum describes.”21

The problem, of course, is that not all mine operators are prudent. If MSHA has knowledge, data or evidence that a mine operator does not take his responsibility seriously and does not take all necessary precautions to protect miners’ safety, MSHA must step in.

Failure #2: Overlooking the deadly potential of a precarious ventilation system.

Clyde Gray worked for 30 years as a coal miner and supervisor and another nine years with MSHA as an inspector and ventilation specialist. He has seen mines with extraordinarily well-engineered ventilation systems and others with ventilation systems that appeared not to have been planned at all. The latter are quickly identified because the operator generally submits constant revisions to the base plan. Gray recalled this about UBB: “These people are constantly submitting plans to get revisions,22 … they hit us a lot with revisions for this mine. Just changing, flip-flopping, changing air flow directions, installing and moving controls to facilitate what they want to mine … we have to go back … and see what was previously submitted, trying to figure out what they’re going to do this time … They’re constantly flip-flopping back and forth.”23

Making the “Safety Case” and an employer’s duty of care

Following the 1988 Piper Alpha Oil Platform disaster in the North Sea that killed 167 workers, Lord Cullen of Whitekirk’s public inquiry endorsed the “safety case” approach to assessing the risk of catastrophic events. Numerous regulatory bodies abroad require this risk assessment technique for oversight of certain hazardous industries, including mining. In the U.S. it is used by the Nuclear Regulatory Commission and the Department of Energy particularly for decision-making related to radiation hazards.

The United Kingdom’s Ministry of Defence defines a safety case as “a structured argument, supported by a body of evidence that provides a compelling, comprehensible and valid case that a system is safe for a given application in a given operating environment.”1 A key feature of the safety case model is assessing risk in a specific context. For an underground coal mine that would include the mine’s unique physical characteristics, equipment available, skill of personnel, and safety performance history.

In Australia, the safety case approach goes hand-in-hand with their “duty of care” regulatory regime. Under Western Australia’s Mines Safety and Inspection Act of 1994, employers, employees and any others who may have an influence on hazards in a workplace, such as mining engineers and outside contractors, are required to do everything reasonably practicable to protect the health and safety of workers. The duty of care standard imposes primary responsibility for safety on mine owners and mine managers. Specific rights and duties flowing from the duty of care include: (a) provision and maintenance of a safe mine; (2) safe systems of work in connection with a mine; (c) employment of qualified persons to provide health and safety advice; and (d) comprehensive monitoring of conditions at the mine. Gross negligence occurs if the offender knew his violation of the law was likely to cause death or serious harm to a person to whom a duty of care was owed, but he still did so, resulting in serious harm to the person.2

1 Ministry of Defence, “Safety Management Requirements for Defence Systems, Part 1,” United Kingdom: 2004
2 Section 8B, Mines Safety and Inspection Act 1994, Western Australia Consolidated Acts

In the seven months leading up to the disaster – from September 2009 to March 2010 – UBB management submitted to MSHA more than 40 revisions to the mine’s ventilation plan. Although some involved routine maintenance (e.g., replacing damaged seals), many pertained directly to airflow and attempts to provide adequate ventilation in all the coal mining sections. At least six of those proposed airflow revisions were rejected by MSHA because they contradicted existing safety regulations.24 MSHA managers and ventilation specialists recognized that the mining plan and the ventilation system at UBB were not systematically engineered.

“They’re trying to use duct tape to fix things instead of engineering,” said Mount Hope assistant district manager Richard Kline. “They’re not taking the time to look ahead at what they have.”25

To illustrate what he considered UBB management’s haphazard approach to ventilation, Kline described visits to the Mount Hope office by Performance Coal Company President Chris Blanchard. Kline said Blanchard would drive 40 miles to the Mount Hope office to ask a favor about a plan awaiting MSHA review, saying, “I really need it in a hurry. We’d like to make the change over the weekend.”26

Mine operators who routinely need special consideration for plan approvals should suggest to MSHA supervisors that they need to conduct an in-depth review. MSHA managers and ventilation specialists recognized the precarious nature of UBB’s ventilation system, particularly after the longwall section started operation in September 2009. “You take a mine this size – you got three sections in there, you got that longwall. And it’s critical that the [ventilation] controls in this mine stay absolutely right on the money because, if you don’t, then something could change,” explained Clyde Gray. “You could alter or short circuit to one of the sections.”27

Massey had publicly maintained that MSHA officials forced them to make ventilation changes that they didn’t want to make – with disastrous results. After a complete review of the record, the Governor’s Independent Investigation Panel found no evidence of MSHA directing Massey’s ventilation proposals.

MSHA inspectors traveling inside the mine witnessed the system’s instability first-hand. They cited UBB nearly two dozen times because the mine operator failed to follow his own ventilation plan. This should have raised a red flag for MSHA managers.

MSHA managers and ventilation specialists were aware that the entries beyond the longwall section were prone to flooding.28 If dewatering pumps were not maintained and water levels diligently monitored, mine entries filled with high water, impeding airflow and disrupting ventilation to the working sections. When MSHA inspectors learned that miners assigned to check the pumps were wading through chest-high water, this should have raised yet another warning flag that the ventilation system could be compromised at UBB.

NIOSH’s Coal Dust Explosibility Meter: Miners deserve better than a 20-year research project

The National Institute for Occupational Safety and Health’s (NIOSH) is our nation’s primary research agency in the field of occupational safety and health. Its mission is to generate knowledge and “transfer that knowledge into practice for the betterment of workers.” One office within NIOSH is devoted specifically to mine safety and health research and it employs about 350 engineers, scientists and technicians.

For more than 20 years, government researchers with the former Bureau of Mines (now part of NIOSH) and MSHA have studied and subsequently developed an instrument to provide real-time, in-mine analysis of rock dust.1,2,3,4,5

In a description of the need for the technology in documents filed with the U.S. Patent Office in 1986, researchers explained the potential impact on miners’ safety when results from an analytical laboratory are delayed for weeks at a time. “In the meantime, the mine operators must rely on visual inspection (dark or light) of rock dusted areas to estimate the quality of the rock dusting practice on a day-to-day basis.”6 They note “an advantage of the present invention [is] a quick and reliable method for determining the rock dust content”; that it is a “completely safe method of determining inert content of a dust mixture”; that it “can be made with very small sample sizes”; and that “the apparatus … makes use of standard off-the-shelf electronic components and … can be manufactured at low cost.”7

As originally reported by The Charleston Gazette’s Ken Ward, Jr., a 1989 report from the Bureau of Mines said the “rock dust explosibility meters” were among “the most promising methods” for helping prevent deadly coal dust explosions.8,9 “The Bureau of Mines has developed an optical rock-dust meter that can be used underground to give a direct and rapid read-out of the rock-dust content of mine dust samples, thus eliminating the need for laborious and time-consuming laboratory analysis of rock-dust content.”10

The Bureau reported that the device was in the process of being readied for commercial sale. To this day, this rock dust meter is not being used in U.S. coal mines. Yet, the federal agencies charged with advancing mine safety practice continued to experiment with the device and write about its potential to prevent coal dust explosions.

In 1996, many of the Bureau of Mines’ staff and much of its resources were transferred to NIOSH. NIOSH reiterated the need for a real-time device to measure the adequacy of rock dust because, under the current system, “the processing time for this analysis [in MSHA’s laboratory] can be as long as two weeks.”11 NIOSH noted that in-mine measurements would “eliminate the danger of operating under hazardous conditions while samples are being processed” and indicated yet again “efforts are underway to commercialize the coal dust explosibility meter (CDEM).”12

NIOSH, and later MSHA staff, continued to experiment with, write papers and give presentations about the CDEM at conferences,13,14,15 but the agency’s leaders did nothing to compel the mining industry to invest in and adopt the devices. In 2006, NIOSH staff recommended the agency for R&D Magazine’s R&D 100 Award. Upon receiving the award, the agency asserted that “… the device, the Coal Dust Explosibility Meter – Model 100, significantly speeds the ability of coal mine operators, coal miners and safety inspectors to determine if certain conditions exist in an underground coal mine that could lead to a potentially deadly and devastating coal dust explosion, and, if so, to take quick corrective action.”16 The NIOSH director applauded the recognition, noting, “It is a great example of how research partnerships can bring forward innovative technologies that create a safer workplace for miners.”

While everything that has been written and said about the CDEM may be true, not a single commercial device has been manufactured or made available to government inspectors, mine managers or miners themselves. And yet, NIOSH officials stated again in 2006 “the device will be manufactured and marketed commercially.”17

NIOSH researchers worked with MSHA staff in Pennsylvania and Alabama to field-test the devices. In a 2008 report, they once more noted the serious deficiency in the current rock dust analysis system: “This process, from obtaining the samples to reporting the analytical results, typically takes several weeks… with real-time results, the potential for a disaster can be mitigated immediately.”18

Following the UBB disaster, NIOSH director Dr. John Howard was called to testify on May 20, 2010, before a subcommittee of the Senate Committee on Appropriations. Among other things, Howard said that NIOSH was “aggressively pursuing commercialization of the Coal Dust Explosibility Meter… Recent mine disasters have renewed interest in this technology, and NIOSH has found a manufacturing partner with broad experience in the manufacture and marketing of field instruments. The CDEM will be commercially available next year.”19

Coal miners have already heard these promises. Six years ago, NIOSH launched its “Research to Practice” (r2p) initiative, which is designed to ensure that NIOSH-generated research is “transferred or translated into the workplace to prevent injury, illness, and fatalities.” Regrettably, it appears that 29 more miners had to die in order to convert 20 years of federally-funded research into practice.

Another needed reform involves modifying the definition of “incombustible content” (IC)20 to prohibit most moisture from being counted as IC. Rock dust often dries out as a mining section advances, but MSHA conducts its rock dust surveys as the section advances and many areas are too wet to sample. The CDEM uses molecular sieves to dry the rock dust out prior to determining the IC level.21 A revision to the IC definition would eliminate ambiguity in the sample results, and allow MSHA to use the CDEM for enforcement purposes. Determining the adequacy of rock dust could be further improved with a special sample collection tool that would retrieve a spot sample of only the upper 2 to 3 millimeters of dust. This top layer of dust is the significant contributor to coal dust explosions.22

NIOSH’s Research to Practice (r2p) initiative is “…focused on the transfer and translation of knowledge, interventions, and technologies into highly effective prevention practices and products, which are adopted into the workplace. …The goal of r2p is to reduce workplace illnesses, injuries and fatalities by encouraging the use of NIOSH-generated knowledge, interventions, and technologie ... [for] improving worker health and safety.”23

Senior NIOSH officials should truly embrace their r2p goal and direct agency staff to consult and assist small coal mine operators in purchasing and using explosibility meters. MSHA should immediately adopt a requirement that compels coal mine operators to use some reliable method to ensure, on every shift, the adequacy of the rock dust applied in their mines.24 The result will create a commercial market for the NIOSH-designed explosibility meter, or similar devices, and a dramatic increase in worker safety.

1 U.S. Patent No. 4,799,799. “Determining inert content in coal dust/rock mixture.” Inventors: Michael J. Sapko, Finleyville, Pennsylvania and Jack A. Ward Jr., Oakmont, Pennsylvania. Date filed: December 19, 1986; date of patent: January 24, 1989.
2 Sapko, MJ, Watson, RW. “Novel Rock Dust Meter,” 21st International Conference of Safety in Mines Research Institutes, Sydney, Australia, October 21-25, 1985, pp. 421-424.
3 Lucci CE, Cashdollar KL, Sapko MJ. Coal Dust Explosibility Meter, Proceedings of the 26th International Conference of Safety in mines Research institutes, Katowice, Poland, Sept.4-8, 1995.
4 Sapko MJ, Verakis H. Technical developments of the coal dust explosibility meter. Society of Mining Engineers Annual Meeting and Exhibit, March 27-29, 2006, St. Louis, Missouri
5 Harris ML, Sapko MJ, Cashdollar KL, Verakis HC. Field evaluation of the coal dust explosibility meter (CDEM). Mining Engineering. 2008 60(10):74-78.
6 S. Patent No. 4,799,799. “Determining inert content in coal dust/rock mixture.” Inventors: Michael J. Sapko, Finleyville, Pennsylvania and Jack A. Ward Jr., Oakmont, Pennsylvania. Date filed: December 19, 1986; date of patent: January 24, 1989.
7 U.S. Patent No. 4,799,799. “Determining inert content in coal dust/rock mixture.” Inventors: Michael J. Sapko, Finleyville, Pennsylvania and Jack A. Ward, Jr., Oakmont, Pennsylvania. Date filed: December 19, 1986; date of patent: January 24, 1989.
8 Proceedings of the 23rd International Conference of Safety in Mines Research Institutes, Washington, DC, September 11-15, 1989.
9 Ward K., Jr. “Industry, regulators ignored coal-dust meters,” The Charleston Gazette, September 25, 2010.
10 Proceedings of the 23rd International Conference of Safety in Mines Research Institutes, Washington, DC, September 11-15, 1989.
11 Coal dust explosibility meter. NIOSH: Technology News, No. 461, July 1997.
12 Coal dust explosibility meter. NIOSH: Technology News, No. 461, July 1997.
13 Sapko MJ, Verakis H. Technical developments of the coal dust explosibility meter. Society of Mining Engineers Annual Meeting and Exhibit, March 27-29, 2006, St. Louis, Missouri.
14 Harris ML, Sapko MJ, Cashdollar KL, Verakis HC. Field evaluation of the coal dust explosibility meter (CDEM). Mining Engineering. 2008 60(10):74-78.
15 Harris ML, Sapko MJ, Cashdollar KL, Verakis HC. Field evaluation of the coal dust explosibility meter (CDEM)008 Society for Mining, Metallurgy, and Exploration (SME) Annual Meeting and Exhibit, February 24-27, 2008; Salt Lake City, Utah.
16 National Institute for Occupational Safety and Health. NIOSH Update: NIOSH Update: NIOSH Receives R&D 100 Award 2006 for Innovation in Mining Technology, November 3, 2006.
17 National Institute for Occupational Safety and Health. NIOSH Update: NIOSH Update: NIOSH Receives R&D 100 Award 2006 for Innovation in Mining Technology, November 3, 2006.
18 Harris ML, Sapko MJ, Cashdollar KL, Verakis HC. Field evaluation of the coal dust explosibility meter. Mining Engineering. 2008; 60(10): 74-78
19 Testimony of John Howard, MD, MPH, JD, LLM, director of the National Institute for Occupational Safety and Health before the Senate Committee on Appropriations, Subcommittee on Labor, HHS and Education, May 20, 2010.
20 30 Code of Federal Regulations 75.503.
21 When the CDEM shows a rock dust sample complies with the mandated IC content, it truly is compliant, however samples with higher moisture may erroneous indicate they are non-compliant.
22 Sapko MJ, Weiss ES, Harris ML, Man C, HarteisSP. A centennial of mine explosion prevention research. Society of Mining Engineers Annual Meeting and Exhibit, Feb. 28 – March 3, 2010, Phoenix, AZ.
23 National Institute for Occupational Safety and Health. Research to Practice at NIOSH.
24 The Robert C. Byrd Mine and Workplace Safety and Health Act of 2011 (H.R. 1579 and S. 153) includes a provision which would require coal mine operators to use direct reading monitors such as the CDEM once the U.S. Secretary of Health and Human Services certifies they are commercially available, and the U.S. Department of Labor has approved them for use in underground coal mines.

As mine inspectors observe deviations from the mine’s ventilation plan, such as air flowing in the wrong direction, they issue citations. Inspector Keith Stone twice evacuated mining sections because of reversed airflow.29 MSHA ventilation managers and ventilation specialists, as well as the inspectors, should have recognized that such violations suggest that the operator has been negligent in conducting thorough pre-shift examinations. UBB received dozens and dozens of violations for hazards that should have been identified during pre-shift and on-shift examinations. There was a disconnect between these ongoing problems and MSHA’s enforcement strategy.

MSHA managers and ventilation specialists also recognized that a January 2010 proposal to open an additional mining section would further tax UBB’s already stressed ventilation system.30 This plan for creating another mining section near the Ellis portal should have sent up even more red flags.

MSHA is charged with doing more than reviewing plans, inspecting mines and writing citations and investigation reports. MSHA inspectors, with the guidance of their supervisors and engineering experts, must use their independent eyes to integrate information and see the cumulative effect of all of the safety lapses and to develop a comprehensive enforcement strategy that includes special attention to those operators who skirt the bounds of safe operations.

Ultimately, the district manager and his assistants are responsible for examining the inspection records and asking about the signs of danger. If they do not have the authority, resources or know-how to compel a mine operator to take action to save lives, it is their duty to elevate it to their superiors. The GIIP did not identify evidence that they did so.

Some inspectors took appropriate action. Keith Stone made a supervisor, Joe Mackowiak, aware of reverse airflow at UBB. Mackowiak sent a team of ventilation experts to the mine. Unfortunately, their diligence was not repeated at every level of MSHA.

Failure #3: Neglecting to use its regulatory authority to force technological improvements to advance miners’ safety

As described in “Chapter Six: Coal dust and rock dust,” rock dusting is a fundamental safety practice used in underground coal mines to render explosive coal dust inert. Mine operators are required to comply with at least minimum rock dusting requirements, specifically creating an environment where the content of dust is no less than 80 percent incombustible material within 40 feet of the working face.31 Experienced coal miners say “a white mine is a happy mine.” But without actually testing the dust to determine the percentage of incombustible content, miners and supervisors have no way of knowing whether a sufficient amount of rock dust has been applied.

Nearly all U.S. coal mine operators, including Massey Energy, rely solely on MSHA to sample the rock dust in all their mines and determine whether they have a sufficient percentage of incombustible content. An MSHA inspector is expected to collect samples of deposited dust in an underground mine at least during each quarterly inspection32 and additionally when “any doubt exists concerning adequacy of rock dust applications in the active working sections.”33 The inspector packages up the samples and mails them to MSHA’s analytical laboratory in Mount Hope, West Virginia. Typically, the inspector receives the results by email two to three weeks later. At that time he will determine whether citations must be issued to the operator for failing to have a sufficient quantity of incombustible rock dust.34

The lag time between when the sample is collected and when results are available means miners and the mine operator lack real time knowledge as to whether their rock dusting practices are adequate. Even if an operator receives a citation, the information is not very useful for prevention purposes. Mining has already advanced far from where the samples were collected. The condition of rock dust three weeks before doesn’t really matter; miners need to know if it is sufficient in the here and now.

This practice of rock-dust testing is particularly troublesome because for more than 20 years, government researchers with the former Bureau of Mines (now the National Institute of Occupational Safety and Health) and MSHA have studied and subsequently developed an instrument to provide real-time, in-mine analysis of rock dust.35 Despite two decades of study and testing, no form of this coal dust meter explosibility meter (CDEM) is being used in U.S. coal mines. (See: Coal Miners deserve better than a 20-year research project)

The Mine Act places not just a responsibility, but also a duty, on MSHA to “develop, promulgate and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines.”36 MSHA has the regulatory authority to compel mine operators to modify, install and even prohibit work practices or equipment for the purpose of improving miners’ safety. The Mine Act is considered a “technology forcing” statute, meaning that MSHA has the authority to use regulatory action to spur technological change.37 Far from being restricted to the status quo, the agency may propose standards “…which require improvements in existing technologies or which require the development of new technology, and … is not limited to issuing standards based solely on devices already fully developed.”38

The CDEM is fully developed, field-tested and has proved completely capable of doing the job for which it was designed. Yet no action – regulatory or non-regulatory – has been taken to compel the industry to adopt the devices. If MSHA were to require that mine operators implement a system ensuring the adequacy of their rock dust, a market for the devices would immediately develop. The CDEM and other similar devices would become commercially available. MSHA has the authority to compel this requirement. To date, it has not done so.

Failure #4: Allowing the U.S. mine safety system to atrophy.

When members of Congress deliberated more than 40 years ago about the need for a comprehensive federal coal mine safety law, they observed that the coal industry “has strengthened our Nation with raw material of power. But it has also frequently saddened our Nation with news of crippled men, grieving widows and fatherless children … Catastrophes in the coal mines are not inevitable. They can be prevented, and they must be prevented.”39

The challenge to prevent these catastrophes is even greater when mine inspectors are forced to rely on 19th century safety practices and equipment in this 21st century world.

At a time when microchips are widely used just about everywhere, many of our nation’s mine inspectors continue to use pencils to make handwritten notes on tri-fold paper, a practice that dates back decades.40 They are forced to prepare for inspections by thumbing through hundreds of pages of mine files instead of being able to review records through a searchable electronic database. If they had the equipment to record their findings on voice-activated recorders, which could be auto-transcribed and linked with photographs from digital cameras, their inspections would have more depth and texture and might encourage a closer review by supervisors.

The ultimate failure of MSHA at UBB, however, was the agency’s inability to see the entire picture, the inability to connect the dots of the many potentially catastrophic failures taking place at the mine --– especially the operator’s failure to properly ventilate the mine, to control methane, to apply sufficient amounts of rock dust. The failure to consider the previous methane outbursts when addressing the current ventilation woes points to a disconnect which suggests the whole picture is not being considered by MSHA’s enforcement. If they had pressed for the use of technology that allowed the immediate testing of rock dust application, they may have been aware that UBB’s rock dusting was woefully inadequate. If they had the technology to put all of the information about the mine in an electronic, easily accessible format, they might have acted much more quickly and dealt more severely with the operator, placing UBB in pattern of violation status, issuing “flagrant violation” citations or even closing down the mine.41

The ability to stand back and take a long look – to see the red flags, to connect the dots – and the ability and willingness to take quick action when necessary distinguishes a regulatory agency which can prevent disaster from one which only reacts. Enforcement aimed at prevention is what Congress envisioned for MSHA when it passed the federal Mine Law, and that’s what Senator Byrd had in mind when he spoke about the UBB disaster at a May 20, 2010, congressional hearing:

“I am perplexed as to how such a tragedy on such a scale could happen, given the significant increases in funding and in manpower for MSHA that have been provided by this subcommittee. Congress has authorized the most aggressive miner protection laws in the history of the world – history of the universe. But, such laws aren’t worth a dime if the enforcement agency is not vigorous about demanding safety in the mines. These laws are also jeopardized when the miners themselves are not incorporated into the heart of the inspection and enforcement process, as Congress intended for them to be. Now’s the time – long past the time – to cast off the fears, the cronyism and other encumbrances that have shackled coal miners and MSHA in the past.”42

1 For example: Testimony of Joseph A. Main, assistant secretary of labor for mine safety and health, before the U.S. Senate Committee on Health, Education, Labor and Pensions, April 27, 2010; Labor Secretary Hilda Solis to the National Mining Association Executive Board Meeting, September 23, 2010
2 Testimony of Richard Stickler, acting assistant secretary of labor for mine safety and health, before Subcommittee on Employment and Workforce Safety, U.S. Senate Committee on Health, Employment, Labor and Pensions, June 19, 2008
3 Robert Hardman testimony, May 27, 2010, p.15. (Mr. Hardman and other MSHA senior officials have not elaborated on measures they took to ensure that the quality and thoroughness of inspections were not compromised by the inspectors’ lack of experience.)
4 Lincoln Selfe testimony, p 64
5 Section 104(e) (1) of the Federal Mine Safety and Health Act of 1978.
6 Testimony of Joseph A Main, assistant secretary of labor for mine safety and health, before the Senate Committee on Health, Education, Labor and Pensions, April 27, 2010; Briefing by Department of Labor, Mine Safety and Health Administration on disaster at Massey Energy’s Upper Big Branch Mine South, at the request of President Barack Obama, April 15, 2010.
7 Testimony of Joseph A Main, assistant secretary of labor for mine safety and health, before the Senate Committee on Health, Education, Labor and Pensions, April 27, 2010; Briefing by Department of Labor, Mine Safety and Health Administration on disaster at Massey Energy’s Upper Big Branch Mine South, at the request of President Barack Obama, April 15, 2010.
8 Testimony of Joseph A Main, assistant secretary of labor for mine safety and health, before the Senate Committee on Health, Education, Labor and Pensions, April 27, 2010; Briefing by Department of Labor, Mine Safety and Health Administration on disaster at Massey Energy’s Upper Big Branch Mine South, at the request of President Barack Obama, April 15, 2010.
9 Section 8(a) on penalties and Section 9 on collection of fines.
10 Ward, Ken, Jr. “MSHA never hit Upper Big Branch with major fines.” The Charleston Gazette, March 30, 2011
11 Ward, Ken Jr., “MSHA never hit Upper Big Branch with major fines,” The Charleston Gazette, March 30, 2011
12 Letter to the Senator Tom Harkin, Chairman, Subcommittee on Labor, Health and Human Services, Education and Related Agencies, from Joseph A. Main, assistant secretary of labor for mine safety and health, March 25, 2010.
13 U.S. Department of Labor, Mine Safety and Health Administration, letter and report from Joseph A. Main, assistant secretary of labor for mine safety and health to Senator Tom Harkin, chairman, Subcommittee on Labor, Health and Human Services, Education and Related Agencies, Committee on Appropriations, March 25, 2010
14 The Mt. Hope district office was not subject to the special MSHA audits in 2008, 2009 or 2010.
15 Ward K., “ MSHA behind on southern West Virginia mine inspections,” The Charleston Gazette, September 23, 2007
16 Mine Safety and Health Administration, US Department of Labor. Internal review of MSHA’s actions at the Aracoma Alma Mine #1, June 2007.
17 Section 103(i), Federal Mine Safety and Health Act of 1977
18 MSHA Report of Investigation, Non-Fatal Methane Explosion (January 4, 1997), Upper Big Branch Mine South, Performance Coal Company, Mt. Hope District Office, July 14, 1997
19 These include Richard Kline, the assistant district manager of MSHA’s Mount Hope district office, who remains in that position today; William Ross, a coal mine inspector in MSHA’s Mount Hope district who later was promoted to supervisor in the office’s ventilation division and, who, after retiring from MSHA, took a job with Massey Energy; Donald Winston, an MSHA inspector for the Mount Hope district later promoted to his current position as supervisor in the district’s roof control division; Steven Snyder, an inspector-at-large with the West Virginia Office of Miners Health Safety and Training, who retired from the agency on December 31, 2010; Gerald Pauley, a coal mine inspector with WVMHST who remains in that position and Jack Roles, section foreman at UBB in 1997 who in 2010 was longwall coordinator. Some of these men also were familiar with the 2003 and 2004 incidents.
20 MSHA internal memorandum, dated July 15, 2004, to Stephen J. Gigliotti, acting district manager, District 4, from MSHA mining engineers George Aul and Michael Gauna, re: methane floor outbursts at Upper Big Branch Mine South. Recommendations included: “Be aware of the conditions associated with the occurrence of an outburst, such as approximate panel position. Insure that all crews recognize that mining has advanced into a zone with a potential for a floor outburst. Consider developing a plan to outline procedures to manage the sudden release of gas from the floor outburst.”
21 Robert Hardman testimony, p. 43
22 Clyde Gray testimony, p. 66
23 Clyde Gray testimony, p. 76
24 The Governor’s Independent Investigation Panel, first made requests of MSHA in mid-July 2010 for documents related to UBB’s ventilation plan submissions and the agency’s approvals or denials of them. The GIIP received some documents responsive to this request in March 2011. The GIIP was interested in confirming or rebutting Massey Energy’s assertion that “MSHA made us do it.” Based on a review of the documents provided, we found no evidence that Massey Energy or UBB management expressed concerns to MSHA that complying with federal ventilation standards would put miners’ lives at risk or make the mine less safe.
25 Richard Kline testimony, p. 14
26 Richard Kline testimony, p. 22
27 Clyde Gray testimony, p. 81
28 Albert Benny Clark testimony, May 11, 2010, p. 34; Kevin Lyall, May 12, 2010, p. 30, 34, 43, 51; Joe Mackowiak, May 17, 2010, p. 64; Gerald Pauley, May 12, 2010, p. 44, 84; Keith Sigmon, May 11, 2010, p. 34
29 Jerome Keith Stone testimony, p. 22
30 Clyde Gray testimony, p. 81
31 Section 304, Federal Mine Safety and Health Act of 1977 stipulates “Where rock dust is required to be applied, it shall be distributed upon the top, floor, and sides of all underground areas of a coal mine and maintained in such quantities that the incombustible content of the combined coal dust, rock dust, and other dust shall be not less than 65 per centum, but the incombustible content in the return aircourses shall be no less than 80 per centum. Where methane is present in any ventilating current, the per centum of incombustible content of such combined dusts shall be increased 1.0 and 0.4 per centum for each 0.1 per centum of methane where 65 and 80 per centum, respectively, of incombustibles are required.” In September 2010, MSHA issued an emergency temporary standard revising the standard to a minimum of 80 percent incombustible content, and an additional 0.4 percent for each 0.1 percent of methane where methane is present in any ventilating current.
32 Mine Safety and Health Administration. General Coal Mine Inspection Procedures and Inspection Tracking System, Handbook No. PH-08-V-1 (January 2008), p. 62.
33 Mine Safety and Health Administration. General Coal Mine Inspection Procedures and Inspection Tracking System, Handbook No. PH-08-V-1 (January 2008), p. 60.
34 Section 101(a), Federal Mine Safety and Health Act of 1977
35 U.S. Patent No. 4,799,799. “Determining inert content in coal dust/rock mixture.” Inventors: Michael J. Sapko, Finleyville, Pennsylvania and Jack A Ward Jr, Oakmont, Pennsylvania. Date filed: December 19, 1986; date of patent: January 24, 1989. Sapko, MJ, Watson, RW. “Novel Rock Dust Meter,” 21st International Conference of Safety in Mines Research Institutes, Sydney, Australia, October 21-25, 1985, pp. 421-424. Lucci CE, Cashdollar KL, Sapko MJ. Coal Dust Explosibility Meter, Proceedings of the 26th International Conference of Safety in mines Research institutes, Katowice, Poland, Sept.4-8, 1995. Sapko MJ, Verakis H. Technical developments of the coal dust explosibility meter. Society of Mining Engineers Annual Meeting and Exhibit, March 27-29, 2006, St. Louis, Missouri. Harris ML, Sapko MJ, Cashdollar KL, Verakis HC. Field evaluation of the coal dust explosibility meter (CDEM). Mining Engineering. 2008 60(10):74-78.
36 Section 101(a), Federal Mine Safety and Health Act of 1977.
37 Ashford NA, Caldart CC. Technology, Law, and the Working Environment. Washington DC: Island Press, 1996, p. 502.
38 Society of Plastics Indus., Inc. v. OSHA, 509 F.2d 1301 (2nd Cir. 1975).
39 U.S. House of Representatives, Committee Report No. 91-563 to accompany H.R. 13950 Federal Coal Mine Health and Safety Act, October 13, 1969.
40 It should also be noted that the mine emergency response directed through the command center established at UBB also relied on incomplete, hand-written notes for its formal record.
41 As provided in Section 8, federal Mine Safety and Health Act of 1977
42 US Senator Robert C. Byrd. Senate Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, May 20, 2010.

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