Court Sides with MSHA on Lifeline S&S Finding

Failure to maintain adequate emergency lifelines in a mine’s escapeways is an S&S violation of the MINER Act’s life line requirement under §75.380(d)(7)(iv), according to a ruling handed down June 7 by the U.S. Court of Appeals for the D.C. Circuit.

The ruling upholds a Commission finding in favor of MSHA and the Commission’s interpretation of lifeline violations. The court agreed that a violation of the lifeline requirement is S&S if there could be a delayed escape in the event of an emergency.

The case stems from a December 2007 inspection of Cumberland Resources’ mine in Greene County, Pa. MSHA inspector Thomas Whitehair II found four areas in four days where lifelines throughout the mine were seven- to eight-feet from the mine floor, were hung above water lines, or ran in sections were the life lines would be difficult to follow because of various pieces of track equipment in the way. In the event of a mine emergency, the life lines would be difficult or impossible for a miner to reach.

The ALJ agreed with the company that there was not a likelihood of a fire or explosion, so the violation was not S&S.

However, the Commission disagreed, ruling that under the ALJ’s reasoning, a mine could have a completely ineffective escapeway system or none at all, but the violation would not be S&S unless the inspector found other conditions in the mine that are reasonably likely to cause a fire or explosion.

The appeals court upheld the Commission’s finding that evacuation standards are different than other standards because they are intended to apply meaningfully only when an emergency actually occurs, and escapeway equipment must be functional when a mining catastrophe occurs so miners can quickly escape.

The court stressed that “the stakes are much higher in emergency situations…. the hazard here is not a hypothetical mine fire – it is a delayed escape from one.”

Cumberland argued that miners would have been able to rely on using the water lines or cables for guidance in an emergency, or even follow the conveyor.

In rejecting that argument, the court said “the record demonstrates that miners are trained to use lifelines in emergencies, and thus, even if they did think to use the belt structure or the waterlines, they would still be delayed as they first attempted to find and use the lifeline.”

In addition, the court agreed with the MSHA inspector that because the waterline and belt structure lacked the lifeline’s required directional indicators, “it would be very easy [for miners] to become confused and maybe turn around and go the wrong direction, because it’s not going to tell them what direction they are going.”

Third, the court said “Cumberland’s argument ignores another lifesaving advantage an adequate lifeline would have over a cable or waterline: lifelines are designed to guide miners to alternative refuges, and waterlines and cables are not.

Cumberland Coal Resources LLP, 6/7/2013, CADC No. 11-1464 affirming 33 FMSHRC 2357

Vol. 20, No. 11

  • Accidents:
    • Supervisor pinned by machine in underground silver mine (313)
    • Haul truck fire at iron operation injures driver (314)
    • Highland 9 reports additional roof falls (315)
    • Injury rates decline in January through March (315)
  • Benefits: Judge sides with bankrupt Patriot in benefits cuts (316)
  • Equal Employment Opportunity: Court primarily sides with MSHA in EEO case (318)
  • Equipment Safety: Replace all missing or damaged cutter bits, MSHA warns (319)
  • Fatalities:
    • Second Exodus Gold miner dies by falling into open stope (319)
    • Confusion and Lack of supervision figured in roof fall death (320)
    • LaFarge manager fatally hurt by rock fall lacked relevant safety training (323)
    • Portable crusher operator settles fine from 2010 fatality, closes operation (324)
  • Inspections: Cement operation gets seven orders during impact inspection (325)
  • Mine Maps: ALJ says rulemaking or policy letter needed to deal with oil and gas borehole issue (327)
  • Mine Refuges: Refuge alternatives request for information goes to OMB (327)
  • Perspectives: Prohibition Against Advance Notice of MSHA Inspections, by Michael Heenan, Esq. (328)
  • Review Commission: William Althen slotted for commission post (329)
  • Review Commission Orders and ALJ Decisions (331)

Vol.20, No.10

  • Accidents:
    • Whipping Drill steel sends operator of roof bolter to hospital (290)
    • Electrician gets flash burn at Nevada gold project (291)
    • Conveyors catch fire at iron plant where Jan Incident burned three workers (291)
    • Continuous mining machine breaches active gas well (292)
    • Fire halts production in N.M. gold mine (292)
    • Coal mine methane ignition lasts 10 to 15 minutes at Emerald Mine (292)
    • Hazard complaint prompts investigation of gold mine roof fall (293)
    • Roof fall blocks ventilation, escape route at Highland No9 coal mine (293)
    • Cumberland Mine cited after 14th hoist outage in 12 months (294)
    • Parkway Mine reports ninth roof fall since January 2012 (294)
    • Vulcan quarry loses transformer to fire (295)
    • Blacksville No2 Mine restarts following March 12 fire (295)
    • Kennecott offers buyouts in wake of highwall failure (296)
  • Civil Penalties:
    • Mine Act mandates $2,000 minimum penalty for unwarrantable failure violations (296)
    • Connecticut operator to post $30,000 bond in delinquent penalties case (297)
  • Discrimination: ALJ erred in excluding evidence in temporary reinstatement case (297)
  • Equipment Safety: Stop roof bolter drill before removing steel, MSHA warns (298)
  • Fatalities:
    • Young worker crushed between rail cars in N.Mmolybdenum mine (298)
    • Foreman in Kopper Glo fatal roof fall was beneath unsupported rock (299)
  • General Policy: MSHA adding radiation data to website (300)
  • Self-Contained Self-Rescuers: Incorrect SCSR test procedures may have caused problems (302)
  • Review Commission Orders and ALJ Decisions (304)

Vol. 20, No. 9

  • Accidents:
    • Miner survives being caught in belt conveyor at California quarry (258)
    • Quarry driller hurt in overturn at Martin Marietta quarry (258)
    • Hiker critical after 100-foot fall into active quarry near Pikes Peak (259)
    • Recovery work proceeds at Blacksville No2 (259)
    • Bingham Canyon Mine Resumes limited production (260)
    • Monsanto cited for failing to timely report impoundment breech (261)
  • Budget: States hit plan to zero out MSHA grants (261)
  • Criminal Proceedings: Mine employee charged with faking foreman certification (262)
  • Discrimination: Miners hood-winked into agreeing to drop discrimination complaints, attorney claims (263)
  • Fatalities:
    • Belt conveyor entanglement takes life of former rodeo performer (263)
    • Miner died in fork lift crash at Martin Marietta Weeping Water mine despite seat belt use (264)
    • No violations in death of miner pinned by 30-ton power center at Drummond Coal (266)
    • Orders modified, penalties lowered from fatal truck fire at Peabody’s Kayenta Mine (268)
    • MSHA announces settlement with Chemical Lime from roller mill fatality (268)
  • Impoundments: OSM draft report never released raises concerns over impoundments (269)
  • Injunctions: Court grants injunction where “high hazard” impoundment owner ignores MSHA orders (270)
  • Inspections: March impact inspections find only two unwarrantable failures (271)
  • Legislation: Bill introduced in Senate would bring changes to “coal and other” sectors (272)
  • On the Move:
    • Coal District 4 sees management changes (276)
    • Wist joins Holland Hart in Colorado (276)
  • Part 50 Reporting: 7th Circuit upholds MSHA’s right to medical, worker comp records for audits (277)
  • Self-Contained Self-Rescuers: Ocenco SCSRs worked in lab, MSHA advises in update (279)
  • Review Commission Orders and ALJ Decisions (281)

Vol. 20, No. 8

  • Accidents:
    • Miner’s leg broken at Quecreek #1 (225)
    • Lightning burns worker at limestone quarry (226)
    • Highwall failure closes iconic Bingham Canyon Mine (227)
    • Underground fire empties Hecla mine (228)
    • Coal miners trapped 4½ hours on hoist (229)
    • Gas ignition surprises gold ore processor (230)
    • Wyoming trona mine has recurring impoundment leak (230)
    • Computer games teach accident awareness for miners (230)
  • Budget: MSHA FY 2014 budget, with small overall increase, would slash training (232)
  • Continuous Miners: Keep continuous miner cable away from solenoids, MSHA warns (234)
  • Discrimination: 6th Circuit upholds ALJ decision on Scott Howard case (234)
  • Fatalities:
    • Death from slippage of pipe section is fifth since 2007 (235)
    • Salt miner killed by falling material from shaft wall (237)
    • Driller killed at quarry had gap in task training, worked alone (238)
    • Coal mine gets proximity detector after fatal accident (239)
  • On the Move:
    • Economist is MSHA Deputy Director of Standards (241)
    • Eddie Lopez moves on to Morenci Mine (241_
  • Private Suits: Miner’s lawsuit dismissed where ICG Beckley lacked actual knowledge of condition (242)
  • Self-Contained Self-Rescuers: MSHA alerts industry on possible SCSR problem (242)
  • Review Commission Orders and ALJ Decisions (244)

Vol. 20, No. 7

  • Accidents:
    • Fire out at Blacksville No2 Mine (184)
    • Quarry driller survives entanglement by rotating steel (185)
    • Roof collapse at Pattison Sand investigated (185)
  • Budget:
    • Judge rejects “backlog” office closing as adequate reason for trial delay (186)
    • State grants programs gutted by budget cuts and sequester (186)
  • Civil Penalties:
    • Appeals court sends late-filed delinquent penalty cases back to Commission (188)
    • D&C Mining defaults on penalties; court places hold on property and equipment (188)
    • As budget crisis hits MSHA, operators, contractors owe $69.8 million in delinquent penalties (189)
    • Commission remands Wolf Run to ALJ for determination on whether a violation was “flagrant” (199)
    • ALJ Barbour upholds “flagrant” finding for electrical violation, but lowers penalty to $110,000 (200)
  • Equipment Safety: MSHA warns of catastrophic failures of hydraulic filter presses (201)
  • Fatalities:
    • Former Crandall Canyon miner dies in roof fall (202)
    • Blasting accident at North Stone kills one (203)
    • Baily Mine examiner’s cause of death in doubt (203)
    • Lack of fall protection resulted in fatal paralysis at Sterling Materials mine (204)
    • Eagle Peak Rock bulldozer operator in fatality was dealing with mechanical problems (205)
    • McCoy Elkhorn mine should have acted on rib problems before fatality, MSHA concludes (207)
  • Inspections: MSHA highlights Fork Creek No1 Mine after impact inspection (209)
  • Investigations: IG still finds flaws in MSHA roof control plan approvals (211)
  • Legislation: Mine safety bill emphasizes underground coal and “gassy” metal/nonmetal mines (212)
  • Settlements: Judge rejects settlement; denies CLR appearance before the Commission (215)
  • Unwarrantable Failure: Violations that are moderate negligence can also be due to an unwarrantable failure (216)
  • Workers’ Compensation: Miner injured at James River Coal Co awarded enhanced benefits (217)
  • Review Commission Orders and ALJ Decisions (219)

Vol. 20, No. 6

  • Accidents:
    • Fire Shuts Down Blacksville No. 2 Mine (155)
    • Enlow Fork Longwall Meets Unexpected Gas Well (157)
    • Beaver Valley Mine Hits Uncharted Water Well (157)
  • Americans With Disabilities Act: Miner loses ADA claim by failing to respond to motion (157)
  • Benefits: Patriot Coal seeks to end benefits, throw out UMWA contract (158)
  • Budget: MSHA weighs plan to maintain inspections during sequester (158)
  • Discrimination: Panel commends whistle-blowing miner (160)
  • Electrical Standards: 8th Circuit sides with Northshore Mining in shovel case (160)
  • Fatalities:
    • Roof fall causes 5th coal mining death in W.Va. this year (161)
    • No contributory violations found after fractured leg proves fatal (162)
    • Loose rock concealed deadly brink in underground Newmont gold mine (166)
  • General News: MSHA publishes new Coal Mine Inspection Handbook (167)
  • Inspections: MSHA’s January impact inspections uncovered more than 250 alleged violations (168)
  • Legislation: Patriot bankruptcy heightens effort to protect retired-miner benefits (171)
  • Mine Rescue: Report calls for new strategies, training and equipment for mine rescue (173)
  • Mine Seals: MSHA suspends approval for 50 psi Minova Gob Isolation Tekseal design (173)
  • On the Move: Head of Justice Dept. Civil Rights Div. may head Labor Dept. (174)
  • Review Commission Orders and ALJ Decisions (175)

Update on Fire at Blacksville Mine

MSHA met with mine management and UMWA officials this morning to discuss plans moving forward. As of 8:00 a.m. EDT, the company had induced approximately 125,000 gallons of water into a borehole to attempt to create a water seal and cut off oxygen to the fire. This process is ongoing. There are four additional proposed boreholes at this point, each of which will be between 1,000 and 1,200 feet in depth. When the No. 1 borehole is through, they will drop a camera to see if they can detect the extent of the fire.

Vol. 20, No. 5

  • Accident: MSHA properly issued 103(k) order for smoldering coal stockpile (128)
  • Black Lung:
    • Dependent’s benefits properly denied where miner diagnosed with COPD (129)
    • Miner with 40% disability and black lung properly denied disability benefits. (130)
    • Miner died from heart disease, despite 77% disability from black lung. (131)
  • Budget: MSHA sees cutbacks of inspections and investigations under “sequester” (131)
  • Civil Penalties: New Hampshire quarry operator continues to rebuff penalty payments (132)
  • Combustible Accumulations: Commissioners hear arguments on Willow Lake citations and orders (133)
  • Criminal Proceedings:
    • Massey executive pleads guilty to conspiracy charges (136)
    • Miner posing as a certified electrician charged with falsifying documents (136)
    • Court reschedules sentencing of Bryant Massingale due to on-going criminal trial (137)
  • Discrimination:
    • Miner awarded $154,000 in back pay and attorney fees (137)
    • Commission upholds temporary reinstatement of Cobra miner (137)
    • ALJ orders reinstatement of miner at ISP Minerals; denies company motion to lay-off miner (138)
  • Fatalities:
    • Army veteran is second fatality in 2 weeks at Affinity Mine (139)
    • Plywood-and-board platform broke underfoot in deadly fall at Pinto Valley (140)
    • No MSHA violations in fatality from scoop driver’s restricted view (142)
    • Death in confined space was from natural causes, MSHA decides (144)
  • Jurisdiction: Commission has authority to decide constitutional questions and Mine Act jurisdiction (144)
  • Loading and Hauling: Commission reverses ALJ finding of no violation in truck crash (145)
  • On the Move:
    • MSHA announces changes in West Virginia coal offices (146)
    • Committee leaders finalized for 113th Congress (146)
  • Private Suits: Wrongful death claim settled from 2010 fatality at Clover Fork mine (146)
  • Settlements: ALJ certifies question of settlement authority for interlocutory review (147)
  • Workers’ Compensation:
    • Miner can sue manager for injuries caused by willful and wanton misconduct (148)
    • New York court reinstates miner’s claim where company failed to provide fall protection or platform (149)
  • Review Commission Orders and ALJ Decisions (150)

Massey Executive Pleads Guilty to Conspiracy Charges

Former Massey Energy Co. executive David Hughart, 53, of Crab Orchard, W.Va., pleaded guilty to two federal crimes today in connection with an ongoing investigation of the company’s actions uncovered during the Upper Big Branch disaster investigation.

Hughart, the former president of Massey’s Green Valley Resource Group, admitted that he conspired to impede MSHA investigations and conspired to violate mine health and safety laws.

“Mine safety and health laws are not optional,” said U.S. Attorney Booth Goodwin. “This prosecution reiterates the message that mine safety violations are very serious crimes.”

Hughart admitted that he and others at Massey conspired to violate health and safety laws and concealed those violations by warning mining operations when MSHA inspectors were arriving to conduct mine inspections.

The investigation was conducted by the Federal Bureau of Investigation, the Department of Labor Office of Inspector General, and the Internal Revenue Service Criminal Investigation Division. Alpha Natural Resources, Inc., which acquired Massey’s operations in a June 2011 merger, is continuing to cooperate with the investigation.

Hughart faces up to six years in prison and a $350,000 fine when he is sentenced on June 25, 2013 by United States District Judge Irene C. Berger. Hugart is the third person to be convicted from the UBB investigation.

Hughie Elbert Stover, head of security, was sentenced to three years in prison for lying to investigators and destroying documents from the UBB mine (19 MSHN 139). His conviction was upheld by the U.S. Court of Appeals for the 4th Circuit.

Former UBB mine superintendent Gary May was sentenced to 21 months in jail and a $20,000 fine under the conspiracy statute (20 MSHN 43).

Counsel to the United States Attorney Steven Ruby is handling the prosecution.