Citation-Free Inspections

In the trial of former Massey-head Donald Blankenship, Ken Ward of Coal Tattoo is pointing out that Blankenship’s defense team claims there is no such thing as a citation-free inspection.

One of the jewels of the former Safe-Pro President, Frank Adkins, was that Frank used to keep lists of mines with citation-free inspections on his web site. It was an enlightening blog to show the positive side of the mining industry. He would point to the dedication and hard work of the companies and their exquisite safety records to show that, in fact, a mine can have a citation-free inspection if the miners are properly trained and management cares.

So I decided to take a look at underground coal mines, to see if it was possible for a mine to have a citation-free inspection. Could MSHA actually go underground, and not find any violations? Here are some initial findings:

Deer Creek Mine: 7/6/2015 – 8/6/2015 No Violations Cited; 3/12/2015- 3/16/2015 No Violations Cited; 8/11/2014 No Violations Cited; 8/5/2014- 8/12/2014 No Violations Cited …

Prairie Eagle: 9/15/2015 No Violations Cited; 7/7/2015 No Violations Cited; 6/15/2015 No Violations Cited; 6/15/2015 No Violations Cited; 5/27/2015 No Violations Cited …

Pattiki: 10/19/2015 No Violations Cited; 10/8/2015 No Violations Cited …

New Future Mine: 10/13/2015 – 10/22/2015 No Violations Cited …

Wildcat Hills Mine: 10/21/2015 No Violations Cited …

I could continue. The list is long.

However, the point is MSHA inspectors are in underground coal mines all of the time with no violations cited. It is a disservice to the mining industry to argue otherwise.

The Terrible Numbers of Black Lung Disease

The numbers are in: From Oct. 1, 2010 – Sept. 30, 2015, 701 miners have some degree of black lung disease according to mandatory Part 50 reports from MSHA.

Some of the cases were filed because a miner filed a state workers’ comp claim for black lung. Others cases were filed with the federal black lung benefits program. Some reports say that the miners have been “diagnosed with pneumoconiosis,” or “alleged black lung.”

While it’s a hodge podge of triggering events that compelled the operators to report these cases under Part 50, it nonetheless represents a death sentence for each miner positively diagnosed. But it’s not all of the cases. NIOSH reports that only about 33% of the miners eligible to participate in the black lung screening program do so. Without a doubt, there are more cases out there.

The findings are stark.

Of the 701 miners, 12% had 15 years or less mining experience. Keep in mind that the 701 miners don’t count those Upper Big Branch miners — 17 of whom were diagnosed with black lung disease in their autopsies. Any miners diagnosed before Oct. 1, 2010 aren’t in the five year window.

In 1969, the Coal Mine Act called for the elimination of the disease. In the year 2000, black lung was at an all-time low.

What’s happened?

There are various theories. Mining more coal faster leading to more respirable dust. Higher quartz levels. But we ask, does it matter?

Here are some of the findings to begin the conversation on the terrible numbers of black lung disease.

The Excel spreadsheet findings can be downloaded here: DustDiseaseCasesOctober2010-September2015_NEW_COAL

The report can be downloaded here: BlackLungSpecialReport_10-15-2015

Findings in Brief:

Years of Mine Experience
miners with years experience not listed: 19
1 – 5 years experience: 13 miners
5.01 – 10 years experience: 16 miners
10.01 – 15 years experience: 40 miners
15.01 – 20 years experience: 38 miners
20.01 – 25 years experience: 70 miners
25.01 – 30 years experience: 101 miners
30.01 – 35 years experience: 153 miners
35.01 – 40 years experience: 182 miners
40.01 – 45 years experience: 64 miners
45.01 – 50 years experience: 4 miners
50+ years experience: 1 miner

Controllers with the highest numbers of black lung cases:
*Alpha Natural Resources Inc.: 505 (72% of all cases)
* 140, or 20% of these cases were with former Massey mines
Patriot Coal Corp.: 68 (9.7% of all cases)
CONSOL Energy Inc.: 22 (3.1% of all cases)
TECO Energy Inc.: 19 (2.7% of all cases)
Robert E Murray: 17 (2.4% includes former Consol Mines)
James River Coal Co.: 13 (1.9% of all cases)

Black Lung Cases By State:
West Virginia: 340
Virginia: 230
Kentucky: 112
Pennsylvania: 10
Colorado: 4
Alabama: 2
New Mexico 1
Utah: 1

Black Lung Reported by Year (Oct. 1, 2010 – Sept. 30, 2015)
Oct 2010 – Sept. 2011: 41
Oct. 2011 – Sept. 2012: 69
Oct. 2012 – Sept. 2013: 169
Oct. 2013 – Sept. 2014: 222
Oct. 2014 – Sept. 2015: 200

Operators with 10 or More Black Lung Cases Reported In The Last Five Years:

Paramont Coal Co. Virginia LLC: Total 122
(Controller Alpha Natural Resources)
Deep Mine #26: 33
Deep Mine 41: 31
Deep Mine #25: 29
Deep Mine 37: 8
88 Strip: 7
Toms Creek Complex: 4
Deep Mine #35: 3
South Fork: 2
Butcher Knife Surface Mine: 1
Cabin Ridge Surface Mine: 1
Deep Mine 44: 1
Red Onion Surface Mine: 1
Smith Gap Surface Mine: 1

Marfork Coal Co.: Total 44
(Controller Alpha Natural Resources)
Brushy Eagle: 12
Horse Creek Eagle: 9
Slip Ridge Cedar Grove Mine: 9
Marsh Fork Mine: 6
Allen Powellton Mine: 3
Coon Cedar Grove Mine: 3
Marfork Processing: 1
Parker Peerless Mine: 1

*Brooks Run South Mining and Brooks Run Mining LLC: Total 45
(Alpha Natural Resources. Mines with an asterick (*) were formerly owned by Brooks Run Mining, and became Brooks Run Mining South in 2014. Since the same miners worked at the mines, we combined the cases from the two Alpha entities)
Mountaineer Alma A Mine: 11
*Still Run No 3: 8
*Cucumber Mine: 5
*Horse Creek No 1: 5
*Wyoming No 2: 5
*Lower War Eagle Mine: 2
Beckley Mine: 3 (was run solely by Brooks Run Mining)
Jackson Bridge 1 4 (was run solely by Brooks Run Mining)
Brooks Run Processing Plant No. 1: 2 (was run solely by Brooks Run Mining)

Mill Branch Coal Corp.: Total 43
(Alpha Natural Resources)
D-10 Dorchester: 20
D-7 Osaka: 7
D-6 North Fork: 6
Bluff Spur Mine: 4
Looney Creek Taggart Mine: 3
Guest Mtn. No. 5: 2
Derby Wilson Mine: 1

Dickenson-Russell Coal Co. LLC: Total 40
(Alpha Natural Resources)
Cherokee Mine: 23
Laurel Mountain: 10
Moss #3 Plant: 3
Roaring Fork No 4: 3
McClure River Plant: 1

Kingston Mining Inc.: Total 29
(Alpha Natural Resources)
Kingston No 1: 22
Kingston No. 2: 6
Kingston Processing: 1

North Fork Coal Corp.: Total 20
(Alpha Natural Resources)
Mine No 4: 6
D-11 Panther: 4
Mine No 5: 4
Cloverlick # 1A: 2
D-8 Cloverlick: 2
D-12 Kellioka: 1
D-14 Stillhouse: 1

Consolidation Coal Co.: Total 20
(Murray Energy – Former Consol Mines)
Loveridge #22: 9
Robinson Run No 95: 8
Shoemaker Mine: 2
Blacksville No 2: 1

Sidney Coal Co. Inc.: Total 18
(Alpha Natural Resources – former Massey company)
#1 Prep Plant: 1
M3 Energy: 1
Process Energy: 11
Taylor Fork Energy: 5

Enterprise Mining Co. LLC: Total 17
(Alpha Natural Resources)
Mine #9A: 7
Yellow Creek #21: 6
Mine #8: 2
Pioneer Preparation Plant: 1
Roxana Prep Plant: 1

Perry County Coal LLC: Total 17
(TECO Energy)
E3-1: 7
E4-1: 5
E4-2: 5

Elk Run Coal Co. Inc.: 16
(Alpha Natural Resources – former Massey company)
Castle Mine: 5
Black King I North Portal: 4
Seng Creek Powellton: 4
Chess Processing: 2
Black Knight II: 1

Eastern Associated Coal LLC: 15
(Patriot Coal Corp.)
Black Oak Mine: 5
Federal No 2: 5
Rocklick Preparation Plant: 3
Wells Preparation Plant: 2

Emerald Processing LLC: 12
(Patriot Coal Corp.)
Peerless Rachel Mine: 5
Eagle Mine: 4
Coalburg No 1 Mine: 2
South Hollow Plant-Emerald Processing: 1

Aracoma Coal Co.: 11
(Alpha Natural Resources – former Massey company)
Aracoma Alma Mine #1: 9
Cedar Grove #2 Mine: 1
Hernshaw Mine: 1

Spartan Mining Co. 11
(Alpha Natural Resources – Former Massey company)
Road Fork #51 Mine: 2
Ruby Energy: 9

Brody Mining LLC: 10
(Patriot Coal Corp.)
Brody Mine No 1: 10

MSHA Citations Can Be Admitted as Evidence in Blankenship Trial

Thanks to the Charleston Gazette for obtaining a partial transcript of Judge Irene Berger’s Oct. 6th ruling, in part, stating that MSHA citations issued to the UBB mine can be admitted as evidence at the trial of Donald Blankenship.

Blankenship’s attorneys had argued that the hundreds of citations were hearsay, but the judge said, “the citations are not being offered for the truth of the matter asserted in them or, in other words, to prove violations of safety standards but are being offered as evidence of the defendant’s knowledge, intent, and/or willfulness as well as notice. That being the case, the documents are not hearsay and are admissible in my opinion given the allegations in the counts of the indictment. I further anticipate, if the documents are offered, giving the jury a limiting instruction that they cannot consider those citations for the truth of what’s contained in them but they can be considered for the fact that they were issued and, thus, can be used by them in their consideration of notice and the defendant’s knowledge, intent, and/or willfulness.

Judge Barger also ruled that the 2005 “Running Coal” memo that Blankenship wrote, can be submitted during the trial.

In terms of previous civil litigation, the judge said she would not rule on whether the previous litigation could be admitted, but would “hold the ruling in abeyance until such time as I can see the specifics and the context in which those — that testimony from prior litigation is offered.”

However, Judge Berger said she would not allow the guilty pleas of former UBB employees to be admitted as evidence, since that may cause confusion among the jurors.

The document can be found here.

UBB Exhibits Will Be Publicly Available through U.S. Attorney

This in from the U.S. Attorney’s Office regarding the criminal case of U.S. v. Donald L. Blankenship

CHARLESTON, W.Va. – Pursuant to the Court’s directive in the case of United States v. Blankenship, all government exhibits admitted into evidence and published to the jury will be made available to the press and the public no later than 9:00 a.m., the day after admission and publication of the exhibits. The exhibits will be posted to a link on the website of United States Attorney Booth Goodwin. Click here.

Today the court heard from Tracy Stumbo as the first government witness.

POV Victory for MSHA

MSHA won a Pattern of Violations “victory” from the Federal Mine Safety and Health Review Commission that has upheld a POV notice and MSHA’s POV theory in a case involving Brody Mining Co.

The outcome means that MSHA inspectors can begin issuing, once again, 104(e) withdrawal orders to Brody. FMSHRC ALJ William Moran’s decison, now overturned, mean that the previous 104(e) withdrawal orders had been converted to 104(a) citations, and they are to be converted back to 104(e) orders.

Key in this decision: the commissioners cite the Legislative History in finding that an operator does not need a certain number of S&S violations to establish a pattern.

The case stems from October 24, 2013, when Brody received a letter that it was being placed on a “pattern of violations” for 54 citations or orders for repeat hazards of methane or ventilation violations, emergency preparedness or emergency escape hazards, roof and ribs hazards and inadequate examinations.

Although it had previously submitted a corrective action plan to MSHA after a March 2013, POV warning notice, it still had an accident rate 205% above the national average.

MSHA’s DRS showed that between 2012 and 2015, the mine reported 14 roof falls, 12 of which caused injuries to miners, including ruptured vertebrae in a miner’s neck, a broken pelvis in another miner, and several miners with broken bones. The mine was the site of a May 12, 2014, double-fatality that killed Eric Legg, 48, and Gary Hensley, 46. The fatalities happened when the operator was pulling pillars and a coal out-burst occurred. Similar to the Crandall Canyon disaster of 2007, there had been a “precusor burst” on May 9, 2014, that was not reported to MSHA. Records also show that 10 Brody miners have been diagnosed with black lung disease, caused by over exposure to coal dust.

At the time the POV notice was issued to the mine on Oct. 15, 2013, MSHA record showed that in the previous 15 month period before the POV notice, Brody had 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. At that time, the mine had a violations-per-inspection-day (VPID) rate of 1.82 compared to the national average of .77.

There are still miners working in the Brody mine, although on April 24, 2015, it was listed as “non-producing status.”

The owner of the mine, Patriot Coal, is selling assets as part of a bankruptcy reorganization.

It is unknown at this time how the decision will impact the Brody mine.

You can’t have it both ways

The U.S. Attorney is arguing in the Blankenship case today that MSHA inspectors are not law enforcement personnel, and that MSHA records are not of the confrontational nature of records like that of a police force.

“The court should decline to broaden the term “law enforcement personnel” to include every employee of an administrative agency who reports on regulatory compliance…”

This argument of the U.S. Attorney goes against what the Solicitors Office likes to argue before the Review Commission judges when it refuses to turn over certain documents / notes created by MSHA inspectors (like special assessment forms), because these records were allegedly made for “law enforcement purposes.”

You can’t have it both ways.

See UBB Attic: Document 411 Doc_411_US_motion_MSHA_citations

Massey Memo 2009: “We need to change how we do business.”

“We need to change how we do business.” So goes the memo of a former Massey official and former MSHA inspector written to Massey executives, including Don Blankenship on the problems at Masssey Energy’s coal mines.

“Many in Massey do not take MSHA seriously,” according to a memo of Stephanie Ojeda to Massey CEO Don Blankenship, Chris Adkins, Shane Harvey and Stan Suboleski, who once sat on the Federal Mine Safety and Health Review Commission. Ojeda was quoting from notes of former MSHA inspector Bill Ross who left MSHA and went to work for Massey.

“Massey lacks knowledge at the foreman level. Our foremen often don’t even know the part of the law that they have violated,” the former inspector wrote in the notes quoted by Ojeda.

“The attitude at many Massey operations is “if you can get the footage, we can pay the fines,” said Ross, according to the memo.

The memo was submitted in court documents in the criminal trial of Don Blankenship. Ross talked to many Massey employees, “and their biggest complaint is lack of manpower…. the people in production at Massey are multi-taskers. They are given 4 or 5 jobs to do, but they are never given the time to do any of them well. Most say that if they had the opportunity, they would leave because of the long hours and because they are given more to do than they can reasonably get done. The biggest complaint of the foreman is that they are continually forced to operate with skeleton crews. In addition to being a boss and an examiner, they are forced to also act as a worker. If they need nine men, they are given five and are still expected to produce big footage. Massey suffers from the Big Four violations: ventilation, clean up, roof control and electrical.

According to the memo, Ross told management in 2009 that having extra training for miners and “doing a good job on these four main areas would get rid of 75% of Massey’s violations.”

According to the memo, Ross “recorded the following quote from a class attendee: ‘We are like robots. Everything is laid out for us, but we aren’t given the manpower to actually do it.” And “we are told to run, run, run until we get caught; when we get caught, then we will fix it.'”

And about those UBB miners whose autopsies showed that 17 of the 29 miners had black lung disease — including 25 year old Jason Atkins?

“Massey is plainly cheating on dust sampling at some of its operations. It ranks in the top 10 in the submission of low-weight-gain dust samples, and this has gotten MSHA’s attention in Arlington,” according to the memo.

“One MSHA employee Bill spoke with mentioned that it’s only a matter of time before MSHA begins special investigations and possible criminal investigations related to Massey’s dust sampling,” Ojeda wrote to the Massey officials.

“We have not learned from our mistakes. In 2006, MSHA sent out letters warning that dust was a problem and that companies should pay attention to this problem. In 2007, follow-up letters went out. Yet Massey has not changed anything. There is still no oversight on dust sampling. Sampling is run by the face foreman, many or most of whom do not even know what is in the ventilation plan. They are told to run dust samples today, and to do whatever is needed to come into compliance. In his classes, some of the foremen have admitted that they cheat on dust sample day. They feel that in doing so, they are carrying out what they were told to do.”

“Bill was so concerned about the problems in Massey that he had written them down, but wasn’t sure who to talk to about them. He wants Massey to do well. He is happy to be able to tell someone about the problems that he sees.

He believes that the company presidents or mine superintendents can change things. However, he feels that people at the mines don’t believe that Don Blankenship or Chris Adkins really are serous about following the law.

He believes that MSHA is issuing flagrant and unwarrantable violations to Massey to go as high on the corporate level as it can. He believes this will continue unless Massey changes its practices. When he sees the dust results, he can conclude only that we have not learned anything from our past problems. After the Aracoma accident, everyone in Massey paid attention to getting everything right. However, this stopped after several months.”

For the court filing and the June 25, 2009 memo to Massey executives, click here at the UBB Attic: Doc_408_memo_and_insight_bill_ross

MSHA Citations and Orders ‘Hearsay,’ Not Admissible Say Blankenship’s Attorneys

A day after paperwork was filed with the court allowing two attorneys from the DOL Solicitor’s office assist the U.S. Attorney’s office in the criminal prosecution of Donald Blankenship, the former Massey CEO’s attorneys said MSHA citations and orders should not be admitted into evidence because the information is “hearsay.”

Admission of the citations in lieu of the MSHA inspector’s testimony violates the rules of evidence for a criminal trial, according to the court filing (See UBB Attic; Doc_399). However, it appears that if the citations and orders are admitted, then the MSHA inspectors must testify about each citation and order, according to the defense attorneys.

What isn’t clear is if the non-prosecution agreement that U.S. Attorney Booth Goodwin reached with Alpha Natural Resources Dec. 6, 2011, may come back to haunt the U.S. government in their goal of prosecuting the former Massey Energy CEO for alleged conspiracy and Mine Act charges.

The agreement stated that the MSHA citations and orders “may not be considered an adjudication on the merits of any citation or order…. it is the parties’ intent that this correspondence may not be referenced or introduced as evidence,” which included all of the citations and orders issued at the UBB mine.

Further, MSHA and the U.S. Attorney agreed that it would not consider the settlement, or the payment in full of the citations and orders, an admission of a violation by any legacy Massey company… any of their affiliates, or any individual of any laws, including local, state or federal statutes (See UBB Attic; “Alpha_Settlement_Agreement”).

It’s not the first time that MSHA evidence was excluded from a trial. In 1996, evidence of fatalities from the Pyro mine explosion in which 10 miners were killed was held to be inadmissible at the criminal trial of four mine officials charged with criminal violations of the Mine Act arising from the explosion. “[E]vidence that there were fatalities and the number of fatalities is not relevant to any issue in [the] case.” The government, the parties, the attorneys, and the witnesses were prohibited from making any reference to the fact that fatalities occurred in the explosion. However, the fact that the explosion occurred is relevant because “an explosion is one of the dangers targeted by many of the mandatory health and safety standards the defendants are alleged to have violated.” The “probative value” of evidence of the explosion is not outweighed by the danger of “unfair prejudice” to the defendants.” The government was permitted to refer to the fact that an explosion occurred “with resulting injuries to miners.” U.S. v. David Steele, No. 4:93-CR-10-M (D.C. W.Ky. Jan. 11, 1996), 3 MSHN 42 (Jan. 26, 1996).

Meanwhile, the Justice Dept just issued a memo that would curtail the kind of non-prosecution agreement reached between the U.S. Attorney’s Office and Alpha. The new memo, DOJ_memo_individ_account_corporate_wrongdoing, is clear in its intention that DOL should not settle criminal matters with a corporation “without a clear plan to resolve related individual cases.” In order for a company to receive any consideration for cooperation, companies “must completely disclose to the Department all relevant facts about individual misconduct. Companies cannot pick and choose what facts to disclose. That is, to be eligible for any credit for cooperation, the company must identify all individuals involved in or responsible for the misconduct at issue, regardless of their position, status or seniority, and provide to the Department all facts relating to that misconduct. If a company seeking cooperation credit declines to learn of such facts or to provide the Department with complete factual information about individual wrongdoers, its cooperation will not be considered a mitigating factor.”