My Letter to Kings Dominion:

Kings Dominion
16000 Theme Park Way
Doswell, VA 23047

Date: Oct. 29, 2013

Dear Kings Dominion Management,

I realize that as of Sunday, Oct. 27, 2013, you closed the “Miners Revenge” “attraction.
I began this petition out of outrage on reading your advertisement for this maze. This led me to “Change.Org” and to begin a petition to close the maze – out of the respect for our mining families in this country.

Perhaps you did not know that every single state in the U.S. has mining.

Perhaps you did not know that almost every single state has experienced the loss of a life of a miner whose work brings you coal for your electric, ore for the steel in your rides, gravel for the asphalt in your parking lots, precious metals in the components of your computer parts.

Perhaps you did not know that on April 5, 2010, 29 miners were killed in the neighboring state of West Virginia and it took rescuers four days working 24 hours per day to find the men, and some of the miners were reduced to small fragments of body parts.

Perhaps you did not know that on Aug. 6, 2007, six miners were trapped at the Crandall Canyon mine in Utah, and on Aug. 16, 2007, three rescuers were killed trying to get to them. The conditions were deemed too dangerous and impossible to get to the men. The rescue had to be called off and the men entombed.

Perhaps you did not know that only days after 9/11, 13 miners perished at the Jim Walters Resources Mine in Alabama. Twelve of the miners died trying to rescue one trapped man and not leave him behind.

Perhaps you did not know of the suicides that occur among survivors and rescuers after these disasters and the “survivors’ guilt” that they live with.

It is not the first time this has happened, but God knows we hope it’s the last.

Below is my petition, with signatures. I hope that whoever came up with the idea for “Miners Revenge” can understand that this attraction opens very fresh wounds of American families whose loved-ones died in very horrific circumstances, and all too recently.


Ellen Smith
Owner and Managing Editor
Mine Safety and Health News
888 Pittsford Mendon Center Rd., Pittsford, NY 14534

Vol. 20, No. 20

  • Accidents:
    • Supervisor rescued from under material in hopper at Cemex plant (599)
    • Contractor sustains shock while cleaning rail car at Buzzi Unicem USA’s Lone Star Pryor plant (600)
    • Truck driver hurt in underground rollover at Graymont mine (601)
    • Aggregate operator cited in customer truck accident at Glass Aggregates (601)
    • Driver hurt in fall from bulk trailer at Mitsubishi Cement (602)
    • Electrical problems cited after underground rail collision at Oak Grove Mine (602)
    • Inaccurate blast leads to salt mine roof fall at New York mine (603)
  • Budget: MSHA and FMSHRC resume normal work, at least until January (604)
  • Criminal Proceedings: Magistrate finds no conflicts in Gary May case (605)
  • Fatalities: Electrician dies after fall from ladder at National Cement’s Lecec Plant (606)
  • General News: Murray Energy To acquire five large operations from CONSOL (606)
  • Mine Refuges: NMA presses MSHA on refuge component approval schedule (608)
  • Pattern of Violations: Three underground coal mines now on POV status (609)
  • Perspectives: Kings Dominion: No treat for Halloween (615)
  • Review Commission Orders and ALJ Decisions (616)

Kings Dominion: Close Your Halloween Attraction

So Kings Dominion hopes to make some big bucks this years with the Halloween attraction called “Miners’ Revenge.”

According to Kings Dominion website, which is selling tickets for $32.99, the theme of this Halloween thriller is this:

Alone in the darkness… the only sound is the pulsing of your heart as the searing heat slowly boils you alive… It was reported to be the worst coal mine accident in history. The families of missing miners begged for help but it was decided that a rescue was too dangerous. The miners were left entombed deep underground. Lamps at their sides and pick-axes in their hands they are searching for the men who left them to die…


I can’t even describe my outrage reading this advertisement.

In April 2010, we had the Upper Big Branch explosion where rescuers desperately searched in unfathomable conditions hoping, praying to find one of the 29 Upper Big Branch miners alive.

It was in 2007 when a mine rescue had to be abandoned at the Crandall Canyon Mine where six miners were trapped (and not presumed dead in the beginning). The rescue was dangerous and considered one of the most difficult in history, and then three rescuers perished trying to desperately dig to get to their mining brothers.

It was in 2006 when we had the triple disasters of Sago, Darby and Aracoma — losing 19 miners to fire and CO poisoning, rescuers braving horrific conditions looking for their lost brothers.

In 2001 — 13 miners killed at the Jim Walters Mine only days after 9/11. Twelve of those who perished were miners who would not leave the mine, and were trying to rescue one of their own.

We have the 1993 Magma Mine accident in which a half million pound raise collapsed on four miners in a copper mine.

The 1992 South Mountain Mine disaster where eight perished.

The 1999 Kaiser explosion where no one died, but Gary Guy was found by a fellow employee with his skin peeling off from caustic chemicals. Twenty-two were injured — 14 seriously.

And I can go on: Blacksville, Pyro, Sunshine, Loveridge, Wilberg, McClure, RFH, Dutch Creek, Scotia … not all, but all in my working memory.

Families and entire communities in our nation have been traumatized by these disasters. Rescuers who must piece together broken, blown apart bodies are traumatized. Miners who may have survived are traumatized. Counselors who have to face the families to tell them of their loved ones are traumatized. This “fun” attraction hits home is a very brutal way for the miners who bring us coal for our electric, our metals that make our everyday lives very livable.

I am all for Halloween fun, but this Kings Dominion “attraction” is absolutely unacceptable. With families and mining employees still trying to recover emotionally and financially from recent disasters, this “attraction” is outside the limits of integrity and morality. It is beyond the bounds of good taste. It surpasses standards of decency.

NMA Files Emergency Petition on Mine Refuges

The National Mining Assn. has filed an emergency rulemaking petition with MSHA, asking that the agency extend by 5 years the deadline for underground coal mine operators to have key components approved under Part 7 by MSHA incorporated into their emergency refuge facilities.

The 13-page petition to MSHA Assistant Secretary Joe Main, signed by Bruce Watzman on Oct. 22, NMA Senior Vice President, Regulatory Affairs, requested an answer from the mine agency by Nov. 5.

MSHA on Aug. 8 published a Request for Information seeking “information on escape and refuge options that may present more effective solutions than the existing rules for miners’ escape and safety,” including “effective options to the specific requirements in the existing rule,” the agency stated in the RFI. “Comments should address escape strategies, refuge alternatives, training, and certification,” the RFI stipulated.

The agency recently extended the comment period on the RFI to Dec. 6, the MSHA website indicated.

Watzman asserted that the approval schedule in particular deserved immediate attention “to ensure that the safety of the Nation’s underground coal miners will not be compromised due to the newly recognized potential hazards associated with the currently required fleet of refuge chambers in underground coal mines.”

Section 101(b)(1) of the Mine Act states, “The Secretary shall provide…for an emergency temporary mandatory health or safety standard to take immediate effect upon publication in the Federal Register if he [sic] determines (A) that miners are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or to other hazards, and (B) that such emergency standard is necessary to protect miners from such danger.”

Watzman asked Main to amend, on an emergency basis, §75.1506(a)(2) and (3). These sections require that MSHA approvals under Part 7 be obtained for refuge and refuge-alternative components that provide breathable air, air monitoring, and removal of harmful gases. The approval requirement applies both to refuges composed of stoppings and to pre-fabricated self-contained units. State-approved components, if already accepted by MSHA as part of individual mines’ emergency response plans, currently are allowed only until Dec. 31, 2013.

As of this August, MSHA had not yet issued any approvals for air-monitoring components, but agency officials said they expected to do so soon and had no plans to alter the compliance deadline. The agency had issued 15 approvals covering breathable-air and gas-removal
components, with other applications pending (20 MSHN 476).

When the original rule requiring refuges or refuge alternatives appeared at the end of 2008, MSHA anticipated Part 7 approvals would be completed by the end of 2009, Watzman noted. “As it turns out, in reality, it has taken five years to approach the accomplishment of what MSHA predicted would take only one year,” he stated.

The NMA petition pointed to several examples of NIOSH research (some currently unpublished), suggesting that prefabricated refuge alternatives in use today may not always provide 96 hours of survivability, despite providing 96 hours of oxygen. External heat, internal humidity and limits to the systems’ capacity in extreme concentrations of carbon monoxide could shorten miners’ survival times in these units, the letter suggested.

“[T]the interaction between refuge alternatives and the mine environment is more complex than has been previously understood and accounted for in the Part 7 approval process,” Watzman wrote.

These issues “are very likely to remain problems for many months (if not years),” the petition stated. “Whether retrofitting the existing fleet of currently deployed refuge alternatives will be necessary, or whether a new generation of refuge alternatives will be required is simply unknown at this time….

“NMA’s concerns are not intended to disrupt efforts to provide miners with last resort life-saving technology,” Watzman continued. “Rather, our concerns are driven by the aforementioned NIOSH research which we commit to immediately analyze, along with MSHA, NIOSH, refuge alternative manufacturers, representatives of miners, and all other stakeholders as soon as it is publicly available.”

“Of course, during this time, the fleet of refuge alternatives currently deployed and approved in the emergency response plan of every underground coal mine in the United States will remain available to miners,” the petition stated. “Should it be possible to solve the problems identified in the NIOSH research prior to Dec. 31, 2018, and correct them in the field, the NMA would support establishment of a reasonable deadline prior to Dec. 31, 2018.”

Watzman also expressed concern that the current situation “may leave miners with an false sense of security….[B]ased on our understanding of NIOSH’s research, we cannot simply teach and train the nation’s miners on how to deploy and operate a refuge alternative, and tell them that they will be able to survive for four days,” he wrote. “[I]t is…important that we provide miners with an honest appraisal of their safety so that they can make educated decisions if they are forced to choose between seeking refuge in a refuge alternative, or making another attempt at escape.”

“Should you reject our emergency rulemaking petition and leave your current rule intact, MSHA’s message to the nations miners will be that refuge alternatives and components that have been approved under Part 7 will provide a safe haven if they are operated according to manufacturer specifications,” the petition asserted.

The United Mine Workers of America earlier contested the final 2008 rule, including MSHA’s decision on minimum refuge space per miner. The union raised concerns at that time about heat and carbon dioxide exposure in refuges that might provide as as little as 30 cubic feet per miner in some cases, compared with 85 cubic feet originally recommended by NIOSH.

The court rejected the UMWA’s objection on the space issue but did require MSHA to revisit its decision to require hands-on training annually rather than quarterly. The agency conducted a limited reopening of the record on the training issue; that comment period closed Oct. 7.

MSHA offered no immediate comment on the rulemaking petition.

The requirement for refuges or refuge alternatives in underground coal mines, to be available in case of emergency, fulfills a portion of 2006 MINER Act that was passed after the Sago mine explosion, in which miners perished from carbon monoxide exposure while awaiting rescue, and the Darby mine explosion in which three miners died from CO poisoning.

Three Mines Show POV Status

Three mines are showing up on MSHA’s DRS as meeting pattern of violations criteria as of Oct. 15. Mine Safety and Health News did a quick scan based on MSHA’s monthly impact inspections over the last year, which show information on citations and orders. Based on the mines that received the most orders, a search of the DRS showed that three of the mines that have received MSHA impact inspections are now showing an overall result of meeting POV criteria.
Some mines had more orders than those that ended up on POV status, but did not meet all of the POV criteria.
Tram Energy LLC’s #1 Mine controlled by Jason D Ousley, and located in Floyd County, Ky., met POV criteria as of Oct. 15. The mine is also one of MSHA’s higher delinquent debtors, owing $108,333. Since taking over the mine on January 6, 2012, Ousley has paid only three penalties totaling $616, with the remaining penalties delinquent.
MSHA records show that 65 of the 126 S&S citations and orders issued at Ousley’s #1 Mine were either high or reckless disregard. The mine’s Injury Severity Measure (SM) is 1,918.6 compared to the national five year underground coal industry average of 438.9 making its accident statistic rate 99.5% higher than the national average.
According to MSHA’s VPID records, since July 2012, the mine has been cited in 34 instances for violations under §75.400 for accumulation of combustible materials; 16 violations under §75.503 for allegedly not maintaining electric face equipment in permissible condition; and, 13 violations for coal dust violations under §75.403, all of which could lead to a mine explosion. In addition, the mine has been cited for nine violations under §75.512 for electric equipment (examination, testing and maintenance), and eight violations under §75.604 for trailing cable violations.

The Affinity Mine, owned by Metinvest, the Ukraine-based holding company of mining and steel assets, established by the SCM Holdings controlled by a Ukrainian businessman Rinat Akhmetov, is also on POV status. The mine is located in Raleigh County, W.Va.
MSHA records show that the Affinity Mine received 125 S&S citations and orders in the last 12 months of which 34 were either high or reckless disregard.
The mine has had two fatalities this year. Edward Lee Finney, age 43, was killed on Feb. 7 (20 MSHN 510) while using a scoop to transfer material to the hoist when the hoist began to rise, catching the front end of the scoop and tipping him out of his seat. The scoop fell on him.
MSHA and state investigators found that someone purposely defeated a safety switch on a mine hoist before the accident. Before the accident, the actuator on the hoist was unbolted from its normal position and taped to the sensor on the gatepost. Taping the two parts of the switch together sends an electrical signal to the PLC that falsely indicated the gates were closed and the hoist was ready to operate safely. According to MSHA the hoist operator had performed a required daily examination of the hoist at 8:00 a.m. The hoist operator “indicated in the examination record book that the hoist was in safe operating condition….The hoist was also examined by [a] Certified Electrician, on the day of the accident as part of the weekly examinations required for electrical equipment. Again, no hazards associated with the hoist were noted in the record book for the weekly electrical examinations.”
Also killed at the Affinity Mine this year was John Myles, age 44, when a scoop backed into him. The driver could not see past items stacked on the rear of the machine. Mining height was 4 feet 2 inches to 4 feet 10 inches (20 MSHN 508). No contributory violations were found in that accident, but MSHA imposed four new, mine-specific safeguards on the Affinity Mine under section 314(b), and the mine installed proximity detection devices on its equipment.
The Affinity Mine has received 21 citations and orders for violations under §75.400 for accumulations of combustible materials since July of 2012; 19 citations or orders for ventilation plan violations; and, 10 citations or orders for permissible electric face equipment under §75.503. Its violations-per-inspection-day (VPID) rate is actually lower than the national average.
However, the Injury Severity Measure for the Affinity Mine is 5,674.2 or 1,192% higher than the national average over the last five years. Its NFDL rate is 129% higher than the national average if one does not calculate the contractor injuries.
While the Affinity Mine shows only $183.37 in delinquent civil penalties, Metinvest as a company has a little over $51,000 in delinquencies as of July, down from $116,512 in delinquent penalties in February of this year.
The third mine that has reached POV status is Patriot Coal Co.’s Brody No. 1 Mine located in Boone County, W.Va.
The Brody Mine has received 268 S&S citations and orders, of which 32 were either high or reckless disregard. The mine has also received 24 elevated citations or orders per 100 inspection hours. Since the mine has been in operation beginning in 2006, it has had an injury rate higher than the national average. So far this year the Brody Mine reported 23 injuries, with a NFDL rate 153% higher than the national average. Last year the mine had 38 injuries with an accident rate 224% above average.
MSHA records are showing that since July of last year, Brody has received 114 citations and orders for violations under §75.400 for accumulations of combustible materials; 104 citations and orders under §75.370(a)(1) for ventilation violations; 76 citations and orders for violations of permissible electric face equipment under §75.503; 56 citations and orders under §75.517 for insulation protection of trolley wires and cables. The mine has a violations-per-inspection-day (VPID) rate of 1.82 compared to the national average of .77.
MSHA records show the Brody Mine with $20,063 in delinquent MSHA penalties, while MSHA records show that Patriot as a controller has a total of $170,378 in delinquent penalties as of July 2013.

Magistrate Finds No Conflicts in Gary May Case

A U.S. magistrate judge found no ineffectual representation or conflicts of interest in the case of Upper Big Branch Mine Supertintendent Gary May, according to a report filed on Oct. 17.

May had asked for an immediate release from prison, claiming his attorney, Tim Carrico, had a conflict-of-interest and did not effectively represent him. May told the court in his filing that he was “the fall guy,” and claimed that his attorney was looking out for the interests of former Massey Energy President and CEO, Don Blankenship, and other Massey executives (20 MSHN 545).

In the proposed findings and recommendations, U.S. Magistrate Judge R. Clarke VanDervort, said May’s “claims are without merit.”

VanDervort wrote, “In this case, it is not evident that Mr Carrico had an actual conflict of interest and actively represented conflicting interests. It is clearly not enough that Massey and Alpha paid Mr. Carrico’s
fees and expenses for representing [May] or that he conferred with counsel for Massey and Alpha about the criminal proceedings. There must be some evidence that he acted in some way to protect or advance the interests of Massey and Alpha at [May]’s expense. Nothing in the record even remotely indicates that Mr. Carrico did so. Rather, it clearly appears that Mr. Carrico effectively represented [May] in the context of the charges that [May] engaged in a conspiracy in violation of 18 U.S.C. § 371.”

The magistrate judge also pointed out that May “is liable for the conduct of all co-conspirators which was in furtherance of the conspiracy and reasonably foreseeable to him.”

If May had denied his actual involvement, then the government could have in fact brought additional charges against May of perjury and obstruction of justice. It was also noted at the sentencing hearing that May had cooperated with the government, and should receive credit for accepting responsibility. “Clearly Mr. Carrico acted with one purpose in mind – protecting [May]’s interests. Nothing in the record indicates that Mr. Carrico acted to benefit Massey, Alpha or Mr. Blankenship at [May]’s expense.”

On the issue testifying about advance warning of MSHA inspections, or entering false information into record books, and other information presented, the court did inquire of May if the information submitted by the U.S. Attorney was “substantially correct,” and under oath May said, “Yes, Your Honor.” Therefore, May’s claim of ineffectual counsel is frivolous, VanDervort wrote.

U.S. v. Gary May, Criminal Case No. 5:12-00050; magistrate’s report filed 10/17/2013.

Another Ruling Against Openness

ALJ William Moran ruled Sept. 25 that Consolidation Coal is not entitled to MSHA’s Special Assessment Review form when it comes to five alleged violations at the company’s Blacksville No. 2 Mine in Monongalia County, W.Va.

While the Secretary argued that the special assessment review (SAR) form was protected under attorney work-product privilege, Moran said he did not even need to rule on that issue.

“Once a matter is before the Commission, no part of Part 100 or that subset within it, special assessments under section 100.5, remains material,” Moran wrote. “Although the Secretary has put forth other, substantial, reasons to deny [Consol’s] Motion, the foregoing is sufficient, standing alone, to deny the motion.”

While Mine Safety and Health News rarely takes a stand in cases, when it comes to SAR forms we are in complete belief that these forms should be made available upon request. For this country to move in the direction of trust, openness and honesty, the answer is more openness and not less.

Review Commission ALJ’s are split on the issue. We would like to offer a historical context and the legislative history of the Mine Act to argue our case for disclosure.

In 1977, the Senate Subcommittee on Labor wrote:

“ The Committee strongly feels that the purpose of civil penalties, convincing operators to comply with the Act’s requirements, is best served when the process by which these penalties are assessed and collected is carried out in public, where miners and their representatives, as well as the Congress and other interested Parties, can fully observe the process.”

S. Rep. No. 95-181, at 44 ( 1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 632 (1978)

Fast forward to January 2009 when President Obama has stated “My Administration is committed to creating an unprecedented level of openness in Government.”

It is hard to see the President’s commitment when representatives of his administration suppress information that was once made public.

Special assessment forms have been around for a long time – as long as we can remember. At times, these forms have been attached to copies of citations that we have asked for. When our Washington correspondent Kathy Snyder worked for MSHA, special assessment forms were often made available. Attorneys tell us that they have, in the past, been given copies of the special assessment forms when they have requested them from MSHA.

Special assessment forms are part of the civil penalty process and are not prepared for the prospect of litigation. The majority of citations – 68% to 70% of all citations – are in fact paid and not litigated.

Special assessment forms are prepared in the ordinary course of MSHA business of assessing civil penalties whether litigation is ever filed or not. They are not prepared under an attorney’s direction. They offer opinions and facts as to why a penalty should be increased, much like the inspector offers a narrative of facts and opinion when writing a citation. Although this information might be relied upon by the Solicitor’s Office to prepare for litigation, it is not in fact prepared in anticipation of litigation.

One need only look at the words from the legislative history of the Mine Act to know what Congress wanted in 1977. “Public meetings … public input … open to the public … intention that the public be notified…” Congress wanted the entire mine safety process open to public scrutiny.

Whether these forms are available for public review also affects the public perception in the settlement process – a legal process that Congress also wanted open after looking at the deficiencies of the 1969 Coal Act. If the Solicitor’s Office is going to make a settlement deal based in part on these special assessment forms, shouldn’t the public have a right to know how they made the decision? How are we going to have a system of checks and balances? How are we going to “fully observe the process” as called for in the Mine Act’s legislative history?

Special assessment forms offer transparency into why MSHA staff believes a fine needs to be increased on any given violation. Transparency assures that this information will be provided in a clear, concise and professional basis that can be defended.

Operators need to know that the special assessment isn’t “payback” for a disgruntled former employee or inspector.

The public needs to know if there was some particular behavior on the part of an operator that the families of miners should be made aware of, and why a special assessment is needed for deterrence.

There is no reason to hide the “thinking” or thought process behind a penalty or violation. We need this openness to understand what is going on. This is our government, and our country. We have a right to know how decisions are made.