MSHA Actions to Enhance Mine Safety April 2008 Update

 

The Mine Improvement and New Emergency Response (MINER) Act:  On June 15, 2006, the President signed the MINER Act into law.  To date, MSHA’s actions to implement the Act include:

 

·         Mine Rescue Teams.  On September 6, 2007, MSHA published a proposed rule that would implement Section 4 of the MINER Act by addressing composition and certification of mine rescue teams and improving their availability and training.  Public hearings with key stakeholders were held in Salt Lake City, UT; Lexington, KY; Charleston, WV; and Birmingham, AL.  On February 8, 2008, MSHA published the final rule that increases training standards, as well as improving overall mine rescue capability, mine emergency response time and mine rescue team effectiveness.

 

·         An Emergency Temporary Standard (ETS) on Mine Seals:  On May 22, 2007, MSHA published in the Federal Register an ETS to increase protections for miners who work in underground coal mines with sealed off abandoned areas.  Although Section 10 of the MINER Act gave MSHA until December 2007 to issue a new standard on mine seals, MSHA concluded that immediate action was necessary to protect miners, based on its accident investigations of the Sago and Darby mine explosions, MSHA’s in-mine seal evaluations, and recent reports on explosion testing and modeling.  The ETS goes beyond the MINER Act – which requires that the standard on mine seals be greater than the 20psi established in 1992 – to include requirements to strengthen the design, construction, maintenance and repair of seals, as well as requirements for sampling and controlling atmospheres behind seals.  On December 19, 2007, MSHA published a reopening of the comment period and notice of public hearing on the ETS to provide commenters time to review and submit comments or provide testimony on the U.S. Army Corps of Engineers’ Draft Report on seals.  The public hearing was held in Arlington, Virginia on January 15, 2008, and the comment period closed on January 18, 2008.  MSHA intends to publish a final rule shortly.

 

·         A Final Rule on Civil Penalties:  After passage of the MINER Act, MSHA immediately implemented increased penalties for late accident notification and “unwarrantable failure” violations.  On Oct. 26, 2006, MSHA issued a Procedure Instruction Letter (PIL) to implement the “flagrant” violation provision of the MINER Act.  On March 22, 2007, MSHA published a final rule to increase civil penalty amounts for all mine safety and health violations.  Issuance of this rule goes beyond the requirements of the MINER Act and demonstrates MSHA’s commitment to protect the safety and health of our nation’s miners.  MSHA has already assessed 46 flagrant violations, seven of which were assessed fines at the $220,000 maximum.  These are the largest proposed penalties in the agency’s history.

 

As prescribed by the Act, the final rule:

 

o        Establishes a maximum penalty of $220,000 for “flagrant” violations, as proposed in the President’s previous budgets.

o        Sets minimum penalty amounts of $2,000 and $4,000 for “unwarrantable failure citations and orders.” 

o        Effective March 10, 2008, imposes a minimum penalty of $7,500 (up to a maximum of $70,000) for failure to timely notify MSHA of a death or an injury or entrapment with a reasonable potential to cause death. 

 

Other major provisions of the final rule applicable to all mine operators and contractors:

 

o        Increases civil penalties overall by an estimated 179 percent using 2005 violation data – targeting the most serious safety and health violations with escalating penalties.

o        Adds a new provision to increase penalties – notwithstanding the severity – for operators who repeatedly violate MSHA standards.

o        Replaces the $60 single penalty with higher formula assessments for non-significant and substantial (non-S&S) violations.

 

These actions have resulted in a doubling in civil penalties issued from $35 million in CY 2006, to $75 million in CY 2007. 

 

Approval of Emergency Response Plans (ERPs):   Emergency Response Plans have been approved and are being implemented for all underground coal mines as specified in the Act except where manufacturers are unable to supply material.   Plans must address post-accident communications (i.e., “redundant communications” until 2009, at which time a two-way, “wireless system” or close alternative is required), tracking, and increased air supplies for trapped miners.  As of March 17, 2008, there are 552 fully approved ERPs, and 3 partially approved ERPs.   The partially approved plans have been received in the last 6 months and MSHA continues to work with the operators to bring about full compliance. 

 

·         Mandated Post-Accident Breathable Air:  On February 8, 2007, MSHA issued a Program Information Bulletin (PIB) providing mine operators guidance concerning acceptable ways to fulfill the breathable air requirements in the MINER Act.  Options for providing acceptable quantities of breathable air for trapped miners are:

 

1)      Drilling boreholes within 2,000 feet of the working sections of mines;

2)      Having 48 hours of breathable air located within 2,000 feet of working sections coupled with contingency plans for drilling boreholes if miners are not rescued within 48 hours;

3)      Having 96 hours of breathable air within 2,000 feet of working sections; or

4)      Other options that provide equivalent protection.

 

·         Established Family Liaisons:  On November 2, 2006, the Secretary of Labor signed an Order establishing the Family Liaison and Primary Communicator positions.  To date, MSHA has trained 21 family liaisons.  The National Transportation Safety Board and the American Red Cross have helped train these individuals.  

 

·         Belt Air:  The Technical Study Panel on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining required under the Act held five meetings:  The first was held January 9-10, 2007, in Washington, D.C.; the second March 28-30 in Pittsburgh, PA; the third May 16-17 in Salt Lake City, UT; and the fourth was held June 20-22 in Birmingham, AL.  The fifth and final public meeting was held September 17-19 in Reston, VA.  Transcripts of all meetings are posted on MSHA’s website.  The Panel issued its final report on December 18, 2007.  MSHA is working aggressively to comply with the regulatory deadlines for a proposed and final rule set forth in the 2008 Consolidated Appropriations Act.

 

·         Refuge Alternatives:  MSHA is working with the National Institute for Occupational Safety and Health (NIOSH) and the states to explore refuge alternatives for trapped miners.   NIOSH met with MSHA on December 20, 2007, to discuss refuge alternatives including refuge chamber testing.  NIOSH published its report in January 2008 on refuge alternatives.  MSHA had a follow-up meeting with NIOSH on March 14, 2008, to discuss refuge alternatives.

 

MSHA is working aggressively to comply with the regulatory deadlines for a proposed and final rule set forth in the 2008 Consolidated Appropriations Act.

 

MSHA’s “Great Escape,” a prototype system developed for miners faced with an underground mine emergency, was unveiled November 8, 2007 at the agency’s Approval and Certification Center in Triadelphia, West Virginia. The system provides miners a constant supply of breathable air, along with a rapid, safe means of escape through an isolated, structurally protected escape path. The system also safely protects communications and tracking systems from fire and explosive forces.

 

·         Underground to Surface Communications Systems in Coal Mines:  As of March 28, 2008, MSHA has observed testing or demonstration of 30 communications and/or tracking systems at various mine sites. We have met with representatives from 61 communications and tracking system companies. To date, we have had discussions with various vendors regarding 168 different proposals for development of mine communications and tracking systems. MSHA is currently focusing its resources on the evaluation of approval applications for communications and tracking technology. Since the beginning of 2006, we have issued 38 new or revised approvals for communications and tracking products, including the first approval for a wireless tracking system in January. We are currently investigating 50 approval applications for communications and tracking technology. We continue to work with the Communications Partnership Working Group sponsored by the NMA/BCOA to arrange for demonstrations of additional systems.  MSHA met with NIOSH on March 14, 2008, to discuss underground communications and tracking technology.

 

·         Brookwood-Sago Grants:  On July 25, 2007, MSHA published a Federal Register notice soliciting applications for Brookwood-Sago grants.  In October 2007, MSHA awarded approximately half a million dollars in grants to seven organizations to develop new training modules and best practices materials to improve miner training.  MSHA intends to once again issue these grants in the next fiscal year.

 

Office of Accountability:  On June 28, 2007, MSHA announced the creation of the Office of Accountability.  Charles J. Thomas was appointed Director of the office on November 13, 2007.  The purpose of this office is to increase focused oversight and examination of existing enforcement programs within the agency.  This new division conducts oversight reviews, including in-mine inspections, to ensure that management controls are in place and fully implemented to maintain consistent and effective enforcement policies and procedures, and to ensure the implementation of actions recommended as a result of MSHA audits and internal reviews.  The director of this office reports directly to the Office of the Assistant Secretary.  The Office of Accountability conducted its first audit in January 2008, its second in February, and has a third scheduled in March.

 

Final Rule on Mine Evacuation:  On December 8, 2006, MSHA issued a final rule to strengthen mine evacuation practices in five key areas.  The rule was based on an Emergency Temporary Standard (ETS) issued by MSHA on March 9, 2006. 

 

·         Self-Contained Self Rescue (SCSR) Devices:  The rule requires coal mine operators to provide additional SCSRs for each miner underground in areas such as working places, on mantrips, in escapeways, and where outby crews work or travel.   The rule also requires that they be readily accessible in the event of an emergency.

 

·         Multi-Gas Detectors:  The rule goes beyond the requirements of the MINER Act by requiring coal mine operators to provide multi-gas detectors to miners working alone and to each group of miners.

 

·         Lifelines:  The rule requires coal mine operators to install directional lifelines in all primary and alternate escape routes out of the mine.  Lifelines help guide miners in poor visibility conditions toward evacuation routes and SCSR storage locations.  In accordance with the MINER Act, lifelines must be fire-resistant by June 15, 2009.

 

·         Training:  The rule requires coal mine operators to conduct quarterly training for miners in how to don SCSRs and especially how to transfer from one SCSR to another at a cache location.  SCSR training units for annual expectations training have now been developed.  On March 30, 2007, MSHA published a notice in the Federal Register notifying mine operators that the units were available.  Mine operators must have had a purchase order for these training units by April 30, 2007, and must conduct training with them within 60 days of receipt of the units.

 

·         Accident Notification:  The rule requires all mine operators to “immediately contact” MSHA after an accident (within 15 minutes of its occurrence).

 

New Mine Inspectors:  MSHA has been aggressively hiring coal enforcement personnel.   Since July 2006, MSHA has hired 304 new coal enforcement personnel.  It takes approximately 18 months for an inspector-in-training to become an Authorized Representative (AR) of the Secretary who is qualified to conduct inspections and issue citations and/or orders.  Once on board, these new enforcement personnel will provide MSHA with more coal enforcement personnel than at any point since 1994.  In addition, the Metal/Nonmetal Safety and Health (M/NM) program has begun a similar hiring initiative that, once complete, will place M/NM’s enforcement ranks at their highest level in more than 20 years.

 

Prosecution of Bad Actors:  Since February 2006, MSHA has filed four unprecedented lawsuits seeking injunctions against mine operators who have chronically failed to pay assessed civil money penalties for violations of the Mine Act.  They have all settled favorably, and the mine operators and their agents are under injunction from further failures to pay civil penalties. Additionally in 2007, MSHA filed two cases in the 6^th Circuit Court of Appeals against two mine operators to enforce payment of overdue civil penalties.

 

On January 22, 2008, Monroe Maynard, a former mine foreman at James H. Taylor Mining Co.'s No. 1 Mine in Pike County was sentenced in Federal District Court for the Eastern District of Kentucky (sitting at London), having previously plead guilty to one misdemeanor count of knowingly failing to clean up coal dust accumulations.  Maynard was sentenced to three months in prison followed by one year supervised release and a $25 fine.  As a special condition, the Court ordered that Maynard not be affiliated with the mining industry in any capacity during his probation.

 

Special Emphasis Programs – Retreat Mining:  Beginning in February 2007, MSHA initiated special emphasis inspection programs in Southern West Virginia and Eastern Kentucky to examine roof control plans and roof support methods in mines that use retreat mining methods. 

 

Special Health Emphasis Program:  In February 2007, MSHA conducted a nationwide targeted Special Health Emphasis enforcement program to ensure operator compliance with the applicable respirable dust standard.

 

Pattern of Violations:  MSHA has developed a database and computerized screening system to identify mines that may have a pattern of violations.  In June 2007, MSHA issued potential “pattern of violations” notices to eight mine operators.  Six of the eight mine operations have significantly improved their safety records, reducing their significant and substantial (S&S) violation rates by an average of over 50 percent.  MSHA continues to monitor these mines as well as the progress of one mine that underwent a change in mine management.  The other mine that received a warning has been inactive since July. 

 

Federal regulations require that MSHA review at least annually the compliance records of each mine to identify those with potential patterns of violations.  MSHA has identified an additional 20 mines that have been given a “pattern of violations” warning and is closely monitoring remedial action and compliance by these mine operators.