Vol. 22, No. 6 & 7

  • Accidents:
    • KenAmerican’s Paradise #9 Mine reports two amputations (150)
    • Employee loses fingers in Mach #1’s Williamson Mine (151)
    • Underground “event” causes three injuries at Whitney underground limestone mine (152)
    • Worker wearing fall protection breaks arm but survives at Clifton Plant (152)
    • Idling of Deer Run Mine continues due to elevated CO readings (153)
    • Case remanded for determination on whether injuries were ‘life threatening’ (153)
  • Black Lung: Worker Reportedly Has Black Lung After 8 Years Mining Coal (154)
  • Congressional Hearings: Cordial oversight hearing examines MSHA as legislation reintroduced (155)
  • Electrical Standards: Small company hit with $9,000 fine for panel violation (157)
  • Examinations: Evidence lacking that third shift was producing coal where examination was required (158)
  • Fatalities:
    • No federal violations in roof fall death at Crawdad No. 1 (159)
    • Unwarrantable failures cited after electrocution at Murray Mines Dredge (161)
  • Jurisdiction:
    • Specialty cement plant falls under MSHA jurisdiction (163)
    • One-man excavating company not under MSHA jurisdiction (164)
  • Pattern of Violations: Commission leans to remanding Brody case back to judge (165)
  • Roof Control:
    • Commission reinstates roof support citation issued after fatal JWR accident (170)
    • Black Hawk hit with $70,000 penalty for fatal ‘red zone’ violation (171)
    • Evidence fails to uphold Secretary’s special assessment in Rockhouse Energy accident case (173)
  • Settlements:
    • ALJ rejects 50% fine reduction in citations stemming from truck accident (174)
    • ALJ orders Secretary to produce inspector’s notes, photographs in settlement justification (175)
    • Settlement reduction approved where company agrees to safety upgrades (176)
  • Ventilation: Rope barrier across unventilated gold mine section is not S&S violation of standard (176)
  • Review Commission Orders and ALJ Decisions (178)

Senate and House Bills to Hold Delinquent Operators Accountable

Both majority and minority leadership of the House Subcommittee on Workforce Protections had some good words to say this morning about stepped-up MSHA enforcement and outreach efforts since the Upper Big Branch mine explosion 5 years ago on Apr. 5, 2010.

At the same time, the hearing brought forward a possibility of at least some limited legislative update to existing mine-safety law to hold delinquent mine operators accountable for unpaid fines. A copy of the “Robert C. Byrd Mine Safety Protection Act of 2015” is here: 2015_Byrd_Bill.

A joint MSHN/NPR investigation released in Oct. 2014, found that delinquent mine operators owe the government $73 million in unpaid fines, and have an accident rate 50% higher than those operators who pay. About 10% of all U.S. mine operators have delinquent penalties.

MSHA chief Joe Main was the sole witness at the generally friendly session before the subcommittee of the House Committee on Education and the Workforce. It was the first such oversight hearing in three years, and the Upper Big Branch Mine disaster was first on the agenda.

“There is no doubt that the families of the 29 who died live each and every day with the painful memory of this tragic event,” said subcommittee chairman Rep. Tim Walberg (R-Mich.) as he opened the hearing. “…Upper Big Branch is a terrible reminder that bad actors will look for ways to cut corners and jeopardize the well-being of their workers, despite a moral and legal obligation…I am pleased that those who had a hand in the Upper Big Branch tragedy are being held responsible. It is taking some time, but justice is being served.”

Ranking subcommittee member Frederica S. Wilson (D-Fla.) said, “to the friends and families of these 29 miners, please note that we continue to remember your loss.”

Yesterday, Wilson announced, she together with Bobby Scott (D-Va., ranking member on the full committee) introduced the latest iteration of a prospective mine safety law named after former Senator Robert C. Byrd (D-W.Va.) to address “weaknesses in the Mine Act” revealed by the Upper Big Branch explosion. In the past Congress, a similar bill failed to achieve passage.

This proposed legislation would give MSHA “the tools it needs to provide greater protection for miners” including subpoena authority, Wilson said, “to compel production of documents and witnesses during an inspection and investigation.” She listed several other agencies to which Congress has granted such power–including the Department of Agriculture under several crop-related laws, including the Pecan Promotion and Research Act.

“I would ask that we join in a bipartisan effort to enact legislation to provide MSHA with…subpoena authority although it’s only a piece of the Byrd bill,” Wilson said.

Main reported that in the wake of new efforts including some “100 reforms” completed on schedule as a result of Upper Big Branch, coal mine fatalities are at the lowest level in history, although a rising death trend in metal and nonmetal mines is “concerning especially after years of historic lows,” Man said.

Among other actions, MSHA has adopted new rules covering coal miners’ dust exposure, pattern of violations, and proximity detectors, Main noted. In addition the agency has undertaken extensive informational outreach, he said. “MSHA’s leadership and I have crisscrossed the country” to interact with stakeholders, Main stated.

The proposed Robert C. Byrd miner Protection Act of 2015 resembles the previous 2013 iteration of the “Byrd bill” except in three particulars: it removes a technical requirement on dust controls, substituting a requirement for a retrospective study; it removes a provision on operators’ provision of medical records related to black lung claims, a provision now included in a separate bill proposal; and it removes a provision that would have exempted surface mines and underground metal and nonmetal mines from certain provisions.

As in the previous 2013 version, the bill would provide several added inspection, investigation and enforcement authorities, including the enhanced subpoena power. It would increase certain penalties, expand the category of felonies under the Mine Act, and step up whistleblower protections. It would allow MSHA to close down a mine that doesn’t pay penalties within 180 days of becoming a final order.

The bill also would require updates to certain health and safety standards.

Among miscellaneous provisions, the bill would expand the definition of “mine operator” to include those with authority to make management or operational decisions affecting miner health and safety either directly or indirectly. It would double the amount of state-grant money, and allow “early replacement hiring” of MSHA inspectors.

Asked about aspects of legislation, beyond subpoena power, that could help MSHA do a better job, Main referred to mine operators with large arrears in penalties, and said “this has been a discussion for quite sometime… we believe we have one of the better collection rates of any federal agency. We’re collecting about 90% of the penalties that are final orders of the Commission [FMSHRC]. Having said that, there are still mine operators that make decisions to accrue violations that place miners at risk and do not pay their penalties. There is a mining company in Tennessee that used that model … closed the mine and moved on racking up several violations and didn’t pay a dime in penalties. … We refer to those as ‘scofflaws.’ So if you look at someone who may get speeding tickets and throw them in the back seat and decide to move out of the state on any given day and leave the tickets… there is mine operators that unfortunately do that.”

When questioned again on the most helpful provisions needed, Main said that there are a number of things that could be done to provide MSHA with greater tools, and the “scofflaw issue has been discussed publicly, and it’s an issue that if we had better tools to deal with [delinquent fines] it would help us rein in mines that decided they do not want to pay their penalties. ”

Main also mentioned the weakness in the Mine Act’s criminal penalty provisions, as evident frustration of U.S. District Court Judge David Sam during the sentencing of Genwal Resources over the Crandall Canyon mine disaster.

It was only four days after the charges were brought in the Crandall Canyon case, and the company agreed to a settlement. It was during the settlement approval that U.S. District Judge David Sam said he was surprised to learn federal law didn’t provide stiffer penalties.

“My initial take on this is outrage at the miniscule amount of penalty,” said Sam, addressing family members of the dead miners in court on March 13, 2012. “I want them to know I have wavered on whether to accept or reject this plea deal.” After some hesitation, Sam accepted guilty pleas by lawyers for Genwal for the two misdemeanors and ordered the company to pay a $500,000 fine “immediately” (19 MSHN 172).

Main stressed that there were a “lack of tools in the judge’s particular tool bag to deal with issues that [were] of a criminal nature that [were] brought before him. That is something that strikes a need.”

Main also raised a concern that there are some reporting issues, and in particular, MSHA is not getting enough accurate information about worktime and injuries from independent contractors, whose workers have accounted for a significant proportion of recent mine deaths.

“It would be helpful to have more valid information on contractor manhours and injuries at a work site. … If you look at the fatalities over the last 18 months, a large number of those were contractors.” A quick calculation based on Main’s testimony shows that 28% of the mining fatalities are contractor deaths.

In addition Main mentioned past difficulties that arose from the 18- to 24-month period it takes to train new inspectors when a large number are new hires. The agency is “in much better shape today,” he said, and was concerning about “not getting there again.”

Other issues addressed in the hearing included MSHA’s decision not to include its “pattern of violations” formula in the final rule (now the subject of two lawsuits); the current decline in coal mining activity; research on refuge chambers; implementation status of the coal mine respirable-dust rule; prospects for a new silica standard and how that might implement small mines; enforcement consistency; injury-illness rates of MSHA inspectors; training outreach to small mines; and the reason for not instituting mandatory miner health surveillance.

Concerning the current downtrend in coal mining, MSHA’s metal and nonmetal department is getting help from the coal department to address fatalities, Main said, while MSHA is looking at changing its training models “to be a more versatile agency” in the future.

Walberg called Main’s efforts in meeting with stakeholders “impressive.” He had especial praise for the agency’s efforts cooperative efforts with industry in getting proximity detectors adopted. Main told the subcommittee that MSHA looks to move forward with requiring proximity detectors on other underground mining equipment in addition to continuous miners.

Walberg said that he had “heard support from the industry” on proximity detectors and recalled his own visit to an underground coal mine during which he himself stood between a continuous mining machine and the mine rib. “I can see that there’s a need there,” Walberg said, emphasizing that MSHA’s strategy “needs to continue being a teamwork approach.”

In closing, Wilson said she hoped that she and Walberg would be able to discuss the proposal to expand MSHA’s subpoena power. Walberg, in a brief moment after the hearing, was noncommittal on the prospects for legislation but indicated that assessing this prospect was part of the purpose for the hearing.

MSHN, NPR Win IRE Award for Delinquent Fines Collaboration

Investigative Reporters & Editors unveiled the 2014 winners of the IRE Awards on April 3, with “a stellar lineup” according to IRE, including Ellen Smith of Mine Safety and Health News who partnered with Howard Berkes, Anna Boiko-Weyrauch and Robert Benincasa of National Public Radio.

For 20 years, Smith has tracked mine owners across the U.S. with delinquent mine safety fines. Under the 1977 Mine Act, the mines are allowed to continue to operate even if they fail to pay their MSHA fines for health and safety violations. What Smith could never determine was whether these mines with unpaid fines were statistically more unsafe than the mine where operators paid their fines.

After the 2010 Upper Big Branch mine disaster, Smith and NPR’s Howard Berkes began to discuss a collaboration, and then in 2013, worked with Anna Boiko-Weyrauch, a former data analyst with the Database Library of the National Institute of Computer-Assisted Reporting at the University of Missouri. Anna and NPR’s Robert Benincasa, were able to download and analyze 20 years’ worth of raw data sets, and were able to show for the first time, with statistical confidence, that operators who fail to pay their fines have an injury rate that is 50% – 70% higher than operators who pay their fines.

The analysis looked at accidents that involved days away from work, and accidents where miners were temporarily or permanently disabled. Simple first-aid, and occupational illnesses were not calculated.

Using a *one-day snapshot, they found and tracked $77 million in unpaid fines, some going back years. These mining companies operated more than 4,000 mines and while they were delinquent, committed 131,000 violations. The collaboration between Smith and the NPR team found human stories to illustrate the data, from anguished families whose relatives were killed in mining accidents to one billionaire owner whose mines had large unpaid fines. (*Smith used a snap-shot in Sept. 2014, while NPR used a snap-shot from March 2014).

Smith’s story also highlighted 99 mining company controllers who owe the government over $100,000 to $4.7 million in unpaid health and safety fines. Smith runs an annual list of controlling companies that owe over $100,000 in fines.

“This issue is a matter of life and death for miners, and a matter of a level playing field for companies,” Smith said. “Only about 7% of all mines don’t pay their fines, but they are allowed to continue to operate and compete with operators who do pay their fines on time.”

“Why should a cement producer, or quarry, or coal mine operator who does the right thing, have to compete with other operations who refuse to pay their fines? I am all about fair,” Smith said, “and the bottom line is, none of this is fair, and it’s an issue that I have tried to highlight over my entire career.”

“Because of this collaboration with National Public Radio, we know for certain that miners are at a higher risk of injury at these operations. There is no excuse for not making changes in this current system that permits these mines with extreme amounts of delinquent fines to stay open. While some may argue that MSHA fines are unfair, the bottom line is there are plenty of companies operating who do their very best to keep a clean, healthy work environment for their employees, they are productive, and receive minimal to no citations.”

Smith was notified of the award five years after the April 5, 2010, Upper Big Branch Mine Disaster in West Virginia, where 29 miners were killed, and the story that sparked her collaboration with NPR. “If MSHA had the ability to shut down delinquent mines, and UBB was one of those mines, those 29 miners may still be alive today,” Smith said.

Smith’s report can be downloaded here:
http://www.minesafety.com/wp-content/uploads/2014/11/Civil_Penalties_Special_Report_20141.pdf

The MSHN/NPR collaboration can be heard here: http://www.npr.org/series/363761319/delinquent-mines

This is Smith’s 34th journalism award of her career. She has been previously recognized by the Society of Professional Journalists, National Press Club, and the Specialized Information Publishers Assn. among others, for her reporting on mine safety issues around the country.