MSHA REPORTS MINING DEATHS HIGHER IN FOURTH QUARTER

FROM:  U.S. LABOR DEPARTMENT 

MSHA releases preliminary fatality and injury data for 2013

Mining deaths sharply higher in 4th quarter, following record low fatality rates

ARLINGTON, Va. — According to preliminary data released by the U.S. Department of Labor's Mine Safety and Health Administration, 42 miners died in work-related accidents at the nation's mines in 2013, an increase from the 36 miners who died in 2012. While mining fatalities occurred at a record low rate for the first three quarters of 2013, during the fourth quarter of 2013, six coal miners and nine metal/nonmetal miners died in mining accidents, a significant increase from the same period in 2012, when four coal miners and two metal/nonmetal miners died.

"Mining deaths are preventable, and those that occurred in 2013 are no exception," said Joseph A. Main, assistant secretary of labor for mine safety and health. "While we have made a number of improvements and have been moving mine safety in the right direction, the increased number of metal/nonmetal deaths makes clear we need to do more to protect our nation's miners.

"It takes the entire mining community to continue to reach new milestones in health and safety," he added.  "Miners need the reassurance that they will return home safe and healthy after every shift."

Last year, there were 20 coal mining and 22 metal/nonmetal mining fatalities, compared with 20 and 16, respectively, in 2012. Four mining deaths in 2013 involved contractors (two each in coal and metal/nonmetal), marking the fewest number of contractor deaths since MSHA began maintaining contractor data in 1983. Fourteen of the coal mining deaths occurred underground and six occurred at surface operations. In metal/nonmetal mining, five deaths occurred underground, and 17 occurred at surface operations.

The most common causes of mining accidents in 2013 involved machinery and powered haulage equipment. West Virginia had the most coal mining deaths, with six, and Kentucky had the most metal/nonmetal mining deaths, with four.

Preliminary fatality and injury rate data for the first three quarters of 2013 were .0112 and 2.45, respectively, below the rates for the same period in 2012, which marked the lowest such rates recorded in a calendar year in mining history. [Note: Rates are determined by the number of fatalities or injuries per 200,000 hours worked. Rates for calendar year 2013, which are calculated using operator-reported employment hours, are not yet available.]

For fiscal year 2013 (Oct. 1, 2012, through Sept. 30, 2013), preliminary data indicate a record-low fatality rate of .0104 and injury rate of 2.42, as well as the fewest number of mining deaths at 33.

Main stressed that, to prevent deaths, mine operators must: maintain effective safety and health management programs that are constantly evaluated, continue find-and-fix programs to identify and eliminate mine hazards, and provide training for all mining personnel. Among the measures MSHA has undertaken to prevent mining deaths are: increasing surveillance and strategic enforcement through impact inspections at mines with troubling compliance histories; enhancing pattern of violations actions; implementing special initiatives, such as "Rules to Live By," which focuses attention on the most common causes of mining deaths; and engaging in outreach efforts with the mining community.

GOVERNMENT ISSUES MINING FATALITY REPORT, SAYS MINERS DYING IN PREVENTABLE ACCIDENTS

FROM:  U.S. LABOR DEPARTMENT 
MSHA issues third-quarter 2013 fatality data
Nine miners lose their lives in a three-month period

ARLINGTON, Va. — The U.S. Department of Labor's Mine Safety and Health Administration today released a summary of U.S. mining deaths that occurred during the third quarter of 2013. From July 1 to Sept. 30, there were nine mining fatalities in the United States. Five miners died in coal mining accidents and four in metal/nonmetal mining accidents. The number was two fewer than during the third quarter in 2012.

Two coal miners died in machinery accidents, and one each died in powered haulage, fall of roof or rib, and drowning accidents. Two metal/nonmetal miners died in powered haulage accidents, and one each died in machinery and falling/sliding material accidents.

Twenty-seven miners died in mining accidents in 2013 from Jan. 1 through Sept. 30, compared to 30 from Jan. 1, 2012, through Sept. 30, 2012.

"While the number of mining deaths was lower than in the same period last year, miners continue to die in accidents that could have been prevented, such as by using proximity detection equipment," said Joseph A. Main, assistant secretary of labor for mine safety and health. On July 2, a continuous mining machine operator was killed when he was struck by a battery-powered coal hauler and pinned between the coal hauler and coal rib. Proximity detection systems can be programmed to send warning signals to alert miners to the presence of moving machinery and can stop the machinery before it strikes, pins or crushes a miner working in the vicinity. As of Sept. 30, 2013, 372 proximity detection systems had been installed on continuous mining machines, coal hauling machines and scoops in underground coal mines.

"In metal/nonmetal mining, fatalities continue to occur that could be prevented by using ‘lock out/tag out' best practices," said Main. "Two of the fatalities this quarter could have been avoided by: disconnecting the power, ensuring the miner on the job has locked the power source in the safe position and tagging to prevent the power from being re-energized.

"While actions undertaken by MSHA and the mining industry continue to move mine safety in the right direction, these deaths are a reminder that much more needs to be done to protect the nation's miners and ensure they return home after every shift," said Main.

MINE SAFETY AND HEALTH ADMINISTRATION ISSUES FIRST PATTERN OF VIOLATION NOTICES

FROM:  U.S. DEPARTMENT OF LABOR
MSHA issues first POV notices under new rule
1 mine in Kentucky and 2 mines in West Virginia receive notices

ARLINGTON, Va. — The U.S. Department of Labor's Mine Safety and Health Administration announced today that three mining operations have been put on notice of a pattern of violations of mandatory health or safety standards under Section 104(e) of the Federal Mine Safety and Health Act of 1977. The POV screening is the first one conducted since MSHA's revised Pattern of Violations rule went into effect on March 25, 2013. These revisions improve MSHA's ability to act when it finds a pattern of violations.

The three mines that received POV notices are: Tram Energy LLC's Mine No. 1 in Floyd County, Ky.; Brody Mining LLC's Brody Mine No. 1 in Boone County, W.Va.; and Pocahontas Coal Company LLC's Affinity Mine in Raleigh County, W.Va. MSHA's review for POV covered all 14,600 of the nation's mines. The agency is still reviewing the injury records of several mines to determine if they should be considered for a POV notice based on this screening.

Under the Mine Act, MSHA is authorized to issue a POV notice to mine operators that demonstrate a disregard for the health and safety of miners through a pattern of significant and substantial violations. A POV notice, one of the agency's toughest enforcement actions, is reserved for the mines that pose the greatest risk to the safety of miners. An S&S violation is one that is reasonably likely to result in a reasonably serious injury or illness. The Mine Act requires mines that receive POV notices to be issued withdrawal orders — effectively ceasing operations — for all S&S violations. After no mine was placed on POV for the first 33 years after the Mine Act went into effect, these POV notices mark the third year in a row that MSHA has used this critical tool to protect miners from serious hazards.
"MSHA's new POV rule, which we will vigorously enforce, enhances protections for miners and shifts the responsibility for monitoring compliance and taking action to prevent POV enforcement actions to the operator," said Joseph A. Main, assistant secretary of labor for mine safety and health.

Tram Energy's Mine No. 1 received 120 S&S violations during the POV review period — more than half of those violations involved elevated levels of operator negligence. MSHA issued 40 closure orders at Tram Energy during the POV review period, the most of any mine in the country. The company has incurred approximately $170,000 in civil penalties since it began operating in 2012. All but $666 is unpaid and delinquent.

Brody Mining's Brody Mine No. 1 received 253 S&S violations during the review period. An MSHA audit of Brody Mining's records found that injuries of miners resulted in 1,757 lost work days at the mine, 367 of which were from eight lost-time injuries that Brody Mining failed to report to MSHA. The company was also audited during the 2012 POV screening process. In that audit, MSHA found 29 injuries Brody Mining failed to report and 724 unreported lost work days.
Pocahontas Coal Company's Affinity Mine received 124 S&S violations during the review period, a quarter of which MSHA cited as involving high negligence or reckless disregard for the health and safety of miners. Two miners died in separate accidents during the review period; the fatalities occurred within two weeks of each other and both involved scoops. Affinity Mine received 35 closure orders during the review period, the third highest in the country.

The new rule eliminated the requirement that MSHA consider only fully adjudicated orders in its POV review, shifted responsibility for monitoring compliance to the mine operator and mandated that operators submit corrective action programs to proactively address issues that could lead to a POV.

In 2010, MSHA identified 53 mines for review, issuing 17 potential POV notices and two POV notices. The October 2011 screening resulted in the review of 39 mines and the issuance of eight potential POV notices. In 2012, MSHA identified 20 mines and issued four potential POV notices. This year, MSHA identified nine mines for additional review. The improvements made in 2010 to the screening criteria were designed to help MSHA better identify the mines that present the greatest risks to miners, and the criteria has remained largely unchanged since they were implemented.

"The decrease in the number of operators meeting the POV criteria shows that the POV process is working — many operators are cleaning up their acts, even when MSHA is not looking over their shoulders," said Main.

SETTLEMENT REACHED REGARDING 2007 UTAH MINE COLLAPSE

FROM:  U.S. LABOR DEPARTMENT SETTLEMENT 
MSHA, engineering firm reach settlement in deadly 2007 Utah mine collapse
Agapito Associates Inc. agrees to pay $100,000 penalty

ARLINGTON, Va. — The U.S. Department of Labor's Mine Safety and Health Administration announced today that it submitted a settlement between MSHA and Agapito Associates Inc. in the August 2007 Crandall Canyon Mine disaster to the Federal Mine Safety and Health Review Commission. Under the settlement agreement, the mining engineering consulting firm accepted responsibility and agreed to pay $100,000 for a high negligence violation for its role in the mine collapse that killed six miners and three rescue workers at Genwal Resources Inc.'s underground coal mine in Emery County, Utah.

According to MSHA's investigation, the miners were killed when roof-supporting coal pillars collapsed in a catastrophic outburst that violently ejected coal over a half-mile area in the underground mine tunnels. Ten days later, two mine employees and an MSHA inspector died in another coal outburst that occurred during rescue efforts.

The investigation also determined that the flawed engineering analysis by Agapito resulted in an inadequate mine design, with unsafe pillar dimensions, which contributed to the accident. Genwal and its parent company, UtahAmerican Energy Inc. submitted their mining plan to MSHA based on Agapito's analysis.
"With this settlement, Agapito takes responsibility for its role in the tragic mine collapse at Crandall Canyon," said Joseph A. Main, assistant secretary of labor for mine safety and health. "Since this tragedy occurred, the agency has made a number of enforcement, administrative and regulatory reforms to improve the health and safety of the nation's miners, particularly in the area of roof control safety."

If approved by the administrative law judge, the settlement will mark the end of legal proceedings brought by the federal government arising from the 2007 mine disaster. In September 2012, Genwal Resources and Andalex Resources Inc., also owned by UtahAmerican Energy, agreed to pay nearly $950,000 in civil penalties for Crandall Canyon violations. In addition, Genwal Resources pled guilty in federal court to two criminal misdemeanors for its willful violation of mandatory health and safety standards at the mine and agreed to pay a $500,000 fine.

MSHA OPINION ON MACH MINING VENTILATION PLAN

FROM:  U.S. LABOR DEPARTMENT
MSHA praises court decision involving Mach Mining ventilation plan

ARLINGTON, Va. — The U.S. Department of Labor's Mine Safety and Health Administration today applauded an Aug. 26, 2013, ruling by the U.S. Court of Appeals for the Seventh Circuit. The court held that an MSHA district manager has broad discretion to disapprove a mine operator's proposed ventilation plan for an underground coal mine, and may do so as long as the decision is not arbitrary and capricious. The court rejected the contention that an operator may ask the Federal Mine Safety and Health Review Commission to substitute its judgment for MSHA's in approving or disapproving a ventilation plan MSHA determines is inadequate to address health and safety requirements and the particular conditions of the mine.
"Both the commission and the Court of Appeals recognized that it is appropriate to leave determinations on the sufficiency of highly technical mine plans to MSHA," said Joseph A. Main, assistant secretary of labor for mine safety and health. "We believe the court made the appropriate decision in this case."
At issue in the case was a ventilation plan proposed by Mach Mining LLC for its # 1 Mine, an underground coal mine in Williamson County, Ill. Despite extended good-faith discussions by MSHA, the parties were not able to reach agreement on the contents of the plan.
Following a hearing, an administrative law judge ruled that: the district manager had negotiated in good faith, the district manager's decision to withhold approval of the plan was not arbitrary and capricious, he had not abused his discretion in determining that the plan was unsuitable and the changes to the plan requested by the district manager were suitable.
After Mach Mining appealed the administrative law judge's ruling, a 3-2 majority of the commission affirmed. Mach Mining subsequently filed a petition to the Court of Appeals for review, and the Court of Appeals denied Mach Mining's petition and affirmed the commission's decision.

RESULTS OF MSHA'S IMPACT INSPECTIONS

FROM:  U.S. LABOR DEPARTMENT 
MSHA announces results of July impact inspections

ARLINGTON, Va. — The U.S. Department of Labor's Mine Safety and Health Administration today announced that federal inspectors issued 149 citations and 16 orders during special impact inspections conducted at nine coal mines and four metal/nonmetal mines last month.

The monthly inspections, which began in force in April 2010 following the explosion at the Upper Big Branch Mine, involve mines that merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns. These matters include: high numbers of violations or closure orders; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries or illnesses; fatalities; adverse conditions, such as increased methane liberation, faulty roof conditions and inadequate ventilation; and respirable dust.

One impact inspection conducted at Affinity Coal Company LLC's Affinity Mine in Raleigh County, W.Va., resulted in 13 citations, 10 unwarrantable failure orders and one imminent danger order. MSHA inspectors secured communications from the surface to prevent the possibility of advance notice.

The imminent danger order was issued when a foreman was seen riding as a passenger in the bucket of a rubber-tired scoop in a wet, rough and uneven entry. Riding in the bucket violated a safeguard MSHA issued on Sept. 17, 2012. A miner riding in the bucket of a scoop can be thrown from the bucket and crushed. There have already been two fatalities involving scoops this year at the Affinity Mine.

Five of the unwarrantable failure orders were issued for violations of the mine's ventilation plan. MSHA measured no ventilation on a section where two miners were operating a roof bolter, and only 150 cubic feet per minute of ventilation on another section where the ventilation plan required 7,800 cfm and the operator was actively mining coal. These conditions have the potential to result in methane and dust accumulations that may result in an explosion or fire, and expose miners to conditions that can lead to black lung. Other similar conditions of airflow significantly below the mine's ventilation plan requirements were found by MSHA inspectors.

The operator also allowed excessive accumulations of combustible materials in the form of dry coal and coal dust ranging from 5 inches to 2 feet deep.
Enforcement personnel identified 10 areas where the operator failed to apply rock dust along the mine roof and ribs for up to 80 feet, creating conditions that exposed miners to potential ignition and explosion hazards. The mine was cited for inadequate pre-shift examinations.

In addition, one unwarrantable failure order was issued for a violation of the roof control plan where the operator did not install reflectors to signal the last row of roof supports. Warning signals are required to prevent miners from entering areas where the mine roof is not supported and could collapse on them.

"While many mine operators have improved working conditions at their mines, we continue to see unacceptable conditions at some mines that put lives at risk," said Assistant Secretary of Labor for Mine Safety and Health Joseph A. Main. "The type of conditions found by inspectors during this surprise inspection are the type that can expose miners to methane and coal dust explosions and black lung, and cannot be tolerated in the mining industry."

Since April 2010, MSHA has conducted 642 impact inspections and issued 10,789 citations, 996 orders and 45 safeguards.

COURT AGREES WITH MSHA ON EMERGENCY LIFELINE STANDARD IN MINES

FROM: U.S. DEPARTMENT OF LABOR
D.C. Circuit Court upholds determination involving MSHA’s emergency lifeline standard

ARLINGTON, Va. — The U.S. Department of Labor's Mine Safety and Health Administration today applauded a decision by the U.S. Court of Appeals for the District of Columbia Circuit, which held that the failure to maintain emergency lifelines in a manner for miners to use effectively is a significant and substantial violation of the Federal Mine Safety and Health Act of 1977, regardless of the likelihood of a mine emergency actually occurring at the time of the violation.

The court unanimously upheld the secretary of labor's interpretation that, in evaluating the significant and substantial nature of violations of standards that come into play only in the event of an emergency, one must assume the occurrence of the emergency. The court agreed that "emergency safety standards are fundamentally different from non-emergency standards because they are designed to apply meaningfully only in times of emergency."

Under Section 104(d)(1) of the Mine Act, if the authorized representative finds that there has been a violation of a mandatory health or safety standard and also finds that the violation "is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard," then the inspector is to include that finding in the citation issued for the violation. Such a finding of a significant and substantial violation is a precondition for enhanced enforcement actions under the Mine Act.

In its June 7 ruling, the court upheld a determination by the Federal Mine Safety and Health Review Commission that a mining company's failures regarding emergency lifelines were in violation of the Federal Mine Safety and Health Act of 1977. The appeal involved Cumberland Coal Resources LP's Cumberland Mine in Greene County, Pa.

Cumberland argued that the commission applied the wrong standard when it reversed an administrative law judge's determination that the violations were not significant and substantial, and that even if it applied the correct standard, its findings were not supported by substantial evidence.

During a December 2007 inspection, an MSHA special investigator inspected four of Cumberland Mine's escapeways over a four-day period and issued a citation for each, alleging a violation of the lifeline requirement. The investigator designated each violation as significant and substantial, finding that, in the event of an emergency, requiring miners to use the lifeline and the location of the lifeline would have delayed miners' escape, and that the delay would have been reasonably likely to result in serious injury or death.

The regulation at issue in this case was implemented as a result of amendments to the Mine Act enacted in response to three multiple-fatality mine disasters in 2006 at Sago, Aracoma and Darby mines, in which miners who were unable to successfully evacuate mines died. Specifically, the Mine Improvement and New Emergency Response Act of 2006 (MINER Act) requires mine operators to provide flame resistant and directional lifelines in escapeways to enable evacuation. Also in response to the disasters, the secretary of labor promulgated an emergency temporary standard, which became final, requiring lifelines to be located in a manner for miners to use effectively to escape.

"Mine emergency protections need to be in place before an emergency occurs," said Joseph A. Main, assistant secretary of labor for mine safety and health. "The court recognized that the absence of such protections is a serious matter, to be taken seriously if miners are to have these protections when they need them the most."

DOL AND COAL COMPANY REACH AGREEMENT OVER MINER'S TERMINATION

FROM: U.S. DEPARTMENT OF LABOR
MSHA, New Elk Coal reach settlement
Miner who filed discrimination complaint to receive $115,000

ARLINGTON, Va. — The U.S. Department of Labor's Mine Safety and Health Administration today announced that New Elk Coal Co. has agreed to pay approximately $115,000 to a miner whose employment was terminated shortly after he filed a hazard complaint. The company also has agreed to pay MSHA a civil penalty of $10,000.

In April 2012, an electrician working at the New Elk Mine in Trinidad, Colo., contacted MSHA about hazardous conditions along a beltline that he claimed were not being properly addressed by his supervisors. The day after he filed the complaint, MSHA issued several citations to the mine. His position and shift changed multiple times over the next three weeks and, on May 12, he was terminated. One month later, the miner filed a complaint of discrimination with MSHA, alleging that he had been fired for notifying the agency of the mine's hazardous conditions.

In a complaint filed with the Federal Mine Safety and Health Review Commission, MSHA sought a finding that New Elk Coal Co. unlawfully had discriminated against the employee in violation of Section 105(c) of the Federal Mine Safety and Health Act of 1977. The statute protects miners, their representatives and applicants for employment from retaliation for engaging in safety and/or health-related activities such as identifying hazards, asking for MSHA inspections or refusing to engage in an unsafe act.

An administrative law judge ordered during an August 2012 hearing that the miner be temporarily reinstated. However, based on an agreement by the parties, the miner received approximately seven months of pay in lieu of returning to work. Prior to a scheduled hearing on the merits of the miner's discrimination claim, the parties settled the case, with New Elk Mining Co. agreeing to compensate him for an additional 10 months of pay.

In a separate case last January, the parties reached agreement that resolved a claim of discriminatory termination of a supervisor at the same mine. In that case, too, New Elk agreed to pay a civil penalty of $10,000 to MSHA, plus approximately $88,000 to the terminated employee. Additionally, the company agreed to provide company-wide training regarding miners' rights.

"All miners, supervisors and contractors have the right to identify hazardous conditions and refuse unsafe work without fear of discrimination or retaliation," said Joseph A. Main, assistant secretary of labor for mine safety and health. "They also have the right to be trained in the health and safety aspects of tasks, including recognizing hazards at the mine and the proper procedures for reporting those hazards."

Working with the Labor Department's Office of the Solicitor, MSHA filed 46 temporary reinstatement requests and 34 105(c) discrimination cases on behalf of miners in 2012, the most ever in a year.

MINE OPERATORS TIPPIING OFF MINE EMPLOYEES OF COMING INSPECTIONS

The following excerpt is from the Department of Labor website:
MSHA: Advance notification of federal mine inspectors still a serious problem
ARLINGTON, Va. — Despite stepped-up enforcement efforts over the past two years by the U.S. Department of Labor's Mine Safety and Health Administration, some mine operators continue to tip off their employees when federal inspectors arrive to carry out an inspection. The Federal Mine Safety and Health Act of 1977 specifically prohibits providing advance notice of inspections conducted by MSHA.

There have been several recent instances in which MSHA has been able to detect the occurrence of advance notice. For example, on March 22, agency inspectors responded to a hazard complaint call about conditions at Gateway Eagle Coal Co. LLC's Sugar Maple Mine in Boone County, W.Va. A truck driver with J&N Trucking reportedly alerted mine personnel by citizens band radio of the inspectors' arrival. The inspection turned up 14 violations for advance notification, accumulations of combustible material, and inadequate preshift and on-shift examinations, as well as a failure to comply with the current ventilation plan, maintain the lifeline, maintain permissibility of mobile equipment and maintain fire fighting equipment.

As a second example, during a Feb. 29 inspection at Rhino Eastern LLC's Eagle No. 2 Mine in Wyoming County, W.Va., a dispatcher's decision to shut down the belts prompted a call from the section foreman about his actions. The dispatcher responded that an MSHA inspector was at the mine. During this inspection, three citations were issued for failure to comply with the roof control and ventilation plans. In addition, a citation was issued to Applachian Security, a contractor, for providing advance notification of the MSHA inspection. Rhino Eastern's Eagle No. 1 Mine was placed on potential pattern of violations status in November 2010 and again in August 2011 after a miner was killed in a rib collapse, and the mine's compliance record deteriorated.

A third example is from Feb. 13, when the dispatcher for Metinvest B V's Affinity Mine in Raleigh County, W.Va., notified the belt foreman over the mine telephone that federal and state inspectors were headed underground. The mine operator was issued a citation and, to abate it, MSHA required that all certified foremen and dispatchers be trained in the requirements of the Mine Act regarding advance notification, and that a notice be conspicuously posted in the mine office to ensure future compliance with the Mine Act.
"Providing advance notice of an inspection is illegal," said Joseph A. Main, assistant secretary of labor for mine safety and health. "It can obscure actual mining conditions by giving mine employees the opportunity to alter working conditions, thereby inhibiting the effectiveness of MSHA inspections. Furthermore, it appears that current penalties are not sufficient to deter this type of conduct."

Upper Big Branch Mine superintendent Gary May recently entered into a plea agreement with the U.S. Department of Justice, admitting to conspiracy to give advance notification of mine inspections, falsify examination of record books and alter the mine's ventilation system before federal inspectors were able to inspect underground. May testified that, through these unlawful practices, the mine operator was able to avoid detection of violations by federal and state inspectors.

"Despite the attention to the issue that has resulted from the Upper Big Branch investigation and recent testimony from Gary May, advance notice continues to occur too often in the coalfields," said Main. "Upper Big Branch is a tragic reminder that operators and miners alike need to understand advance notice can prevent inspectors from finding hazards that can claim miners' lives."