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FINDINGS and RECOMMENDATIONS

Finding #1: The disaster at Upper Big Branch was man-made and could have been prevented had Massey Energy followed basic, well-tested and historically proven safety procedures.

Recommendations:

  1. Require that every mine superintendent be certified by the state agency in underground mining and in carrying out the mine health and safety laws with regard to individual mines. The state agency should develop and administer an examination, including an in-mine demonstration of the superintendent’s skills, as part of the certification process.
  2. Require a quarterly report certifying that all safety standards are being complied with. Sanction for knowingly or negligently falsifying the report would be the revocation of the mine superintendent’s certification.
  3. Adopt provisions similar to those contained in the Sarbanes-Oxley Act to make a Board of Directors accountable for mine safety compliance. Boards of Directors should utilize existing health and safety committees or form a committee to oversee health and safety aspects of the mines under the company’s control. The committee would be responsible for ensuring compliance with all federal and state regulations and would be required to certify that the mines are in compliance each quarter. A criminal penalty should be assessed on these board members who certify, negligently or willfully, that the mine is in compliance when it is not.

Finding #2: The Upper Big Branch mine explosion occurred because of failures of three basic safety practices: a properly functioning ventilation system; adherence to federal and state rock dusting standards; and proper maintenance of safety features on mine machinery. Although many standards have been adopted to safeguard the lives of miners, these basic systems should be the primary concern of operators and enforcement officials.

Recommendations:

  1. Specifically use a “pattern of violation” and/or ”flagrant violation” authority for violations of key standards designed to prevent explosions,1 and apply meaningful sanctions, such as revoking the operator’s ventilation plan. If an operator’s plan is revoked for reckless or repeated behavior, he should be offered a brief period of time (e.g., five days) to make the safety case to MSHA as to why the mine’s ventilation plan should not be revoked. [See “Making the Safety Case”]
  2. A procedure should be adopted that would require mine operators repeatedly cited for failing to follow their own approved ventilation plan to notify MSHA and WVMHST when subsequent ventilation changes are completed and before miners are allowed back underground. Affected miners would be entitled to full compensation by the operator at their regular rates of pay and work schedule for the entire period they are idled.
  3. Each mine should be required to maintain and continuously update records of the amount of rock dust purchased and the amount used daily. Failure to maintain adequate records would result in a citation with a monetary fine.
  4. WVMHST and MSHA should undertake reorganization on their ventilation approval system to ensure that plans and requirements are known and understood by both the ventilation specialists as well as the inspectors.

Finding #3: 21st century coal mine safety practices have failed to keep pace with 21st century coal mine production practices. Improved technology is required to ensure that the lives of miners are safeguarded.

Recommendations:

  1. “Black box” technology must be instituted for mining equipment, including shearers, continuous miners, roof bolters, shuttle cars, motors, conveyors and shields. The black boxes should provide information regarding methane, oxygen, carbon monoxide and coal dust levels.
  2. Immediate implementation of a computerized, real-time electronic personnel-recording system to formally identify and locate all personnel who are underground at a given time, including supervisory personnel. Redefine the state and federal regulations to ensure that no one, including management, goes underground without a tagging device.
  3. Each mine must be required to institute a “Communication and Information Recording Center” outside the underground portions of underground mines and away from the working areas of surface mines. These communications centers would provide instantaneous communication to MSHA, to state agencies, to company officials and state and county emergency management officials regarding safety and health.
  4. Mine operators should be required to adopt computer-based monitoring of air quality, quantity and direction of flow throughout a mine. A suitable system would alert not only the mine operator and miners to impending danger, but it would also alert the state and federal regulatory agencies. Regulatory agencies would have the authority to shut down an operation based on data provided by the system.
  5. Current monitors for methane, carbon monoxide and coal dust must be upgraded to include memory chips, as well as instant communication to the communications center.
  6. Operators must be required to use real-time continuous monitoring for explosive methane gas and respirable dust in coal mines.
  7. Mechanized rock dusting must be conducted in all portions of underground mines, as well as the installation of “passive barriers” to help stop ignitions from turning into large explosions, such as occurred at Upper Big Branch.
  8. Operators must assess the adequacy of rock dust through direct readout explosibility meters and submit these results electronically to regulatory agencies.
  9. The state inspector system for writing violations must be converted from paper and pencil to a computerized system. This system must be capable of generating reports for individual mines.
  10. Electronic records should be maintained regarding methane, intake and return air levels on all coal producing sections for no less than seven years. Had this information been available, investigators would have had data related to the previous methane inundation at UBB.
  11. The regulatory agencies should use ventilation simulation models as part of their plan approval and modification process. The simulation model results for each mine would be part of the mine file and available to inspectors for review before commencing an inspection.
  12. Mine operators should be required to install equipment, such as seismographs, to monitor geologic activity at or near their mining operations.
  13. MSHA and NIOSH should develop an approved rescue vehicle for removing injured miners safely from the mines. State and federal agencies should have a vehicle for removing injured miners and victims from a mine in a safe and efficient manner. Rescue workers should not have to carry miners great distances underground.

Finding #4: The pre-shift/on-shift examination system, established in the early 1900s to identify hazards and take corrective actions, has in many instances, become a meaningless exercise. Examiners are overly dependent on paper, and their examinations are characterized by a monotonous routine and the reliance on “dittos” and abbreviations. Moreover, evidence shows that certified foremen, mine foremen and examiners at UBB were not adequately trained to understand and perform their safety inspections and how their recognition of hazards provides essential information to assure miners’ safety.

Recommendations

  1. Pre-shift and on-shift examinations must be computerized with the information transmitted to regulatory agencies, much like coal truck weights are transmitted to the Department of Transportation on a daily basis.
  2. The West Virginia Office of Miner’s Health Safety and Training should re-double its efforts to ensure that all examiners are trained, and tested as many times as necessary, including in-mine demonstrations of their skills, to ensure the examiners understand their duties and perform them as they should be performed.
  3. The West Virginia Office of Miners’ Health, Safety and Training should focus training efforts on those mines in which mine operators are found to be lax on safety training. MSHA and the state should have the authority to revoke the licenses of habitual offenders, for those who falsify records and for flagrant violations.
  4. MSHA and the State agency should provide annual training to miners on their statutory rights under the Mine Act and applicable state mine safety laws. This curriculum should outline the benefits of designating a miners’ representative.
  5. Digital photographs from recent inspections and other appropriate visual aids should be used to demonstrate to miners, managers and inspectors acceptable and non-acceptable mining equipment and conditions.
  6. Federal and state agencies should undertake an aggressive campaign to undermine the “safety myths” or inaccuracies that emerged during the UBB investigation. Agencies should dispel these inaccuracies on federal and state agency websites and incorporate “myth busters” into miners’ training. A few examples of the inaccuracies that emerged during interviews with miners and bosses include:
    a) a proper air velocity reading can be taken instantaneously;
    b) a CH4 monitor on a mining machine can be disconnected if it is defective or keeps alarming, and the operator is allowed to run coal for up to 24 hours while waiting for a new monitor to be installed;
    c) a miner should not don an SCSR until he knows it’s really an emergency or when a boss tells him to don it;
    d) a miner can make a run by himself, without a CH4 detector, because only a boss can be certified to carry a spotter;
    e) red hat miners can be left by themselves while a boss goes ahead of them to check for hazardous conditions.

Finding #5: MSHA and WVMHST inspectors and their supervisors are the watchdogs for mine workers. When faced with a mine operator that repeatedly ignores, evades or disregards fundamental safety regulations, federal and state inspectors and supervisors must craft enforcement strategies which match the compliance approach of the mine company. This means using all the administrative and legal authority at the agencies’ disposal, and promptly elevating to supervisors any regulatory, resource or political constraints that prevent action needed to protect miners’ lives.

Recommendations:

  1. Existing laws and regulations must be stringently and effectively enforced. Supervisors and managers are responsible for ensuring that front-line inspectors are provided equipment, tools, training and management support to succeed at their jobs.
  2. Inspectors are responsible for elevating to their supervisors problems or concerns that the inspectors believe impede their ability to enforce the law. Likewise, supervisors and district managers are responsible for elevating issues to senior officials in the agency.
  3. When either state enforcement agencies or MSHA recognize a significant or persistent problem at a mine, the agencies should coordinate their responses. State and MSHA district offices should meet periodically to review problematic mines and formulate strategies to best protect miners. Cooperative efforts would maximize the effectiveness of the agencies against recalcitrant violators.
  4. MSHA should use its resources, and experienced and talented personnel to bolster its ability to notice the warning signs and see the big picture at mining operations with persistent health and safety problems.
  5. WVMHST should modify inspectors’ work assignments to ensure that mines covering a large geographic area have an appropriate number of inspectors assigned to them, and that all mandatory inspections are completed.
  6. Management and labor in the agencies must discuss and negotiate terms to provide more flexibility for the days and hours in which mine inspections are conducted. If inspectors’ work shifts are extended because of travel distance to the mine or demands at the mine, it is not unusual for the employee to complete 40 hours of work by Thursday. Currently, inspections on Fridays, Saturdays and Sundays are somewhat infrequent, but should be encouraged. An effective mine safety enforcement system should be flexible enough to facilitate inspections any day of the week, at any hour of the day.
  7. The current law, which states that no mine operator or anyone else should provide advance notice for federal mine safety and health inspectors, should be strengthened. Such a violation should constitute a felony.

Finding #6: Federal and state mine safety laws allow mine operators to use administrative or judicial review to avoid or delay paying citations and penalties. Mine operators know they can contest violations and tie them up in litigation for years. They also recognize that by litigating citations, the company stands a good chance of getting the fines reduced to a fraction of the original amount.

Recommendations:

  1. Government officials must ensure that adjudicating bodies have the personnel and resources necessary for speedy resolution of contested citations and penalties.
  2. Government officials must implement alternative dispute resolution mechanisms with appropriate means for worker involvement.

Finding #7: Miners’ rights to a safe workplace are compromised when the operator’s commitment to production comes at the cost of safety. Workers should not be penalized if operators fail to follow safety requirements so that miners’ interests can be separated from the operator’s interest.

Recommendations:

  1. State and federal officials must ensure that miners are aware of the protections afforded under state and federal law. An ongoing effort should be made to re-educate miners about the existence of the MSHA hotline and the state hotline and about the protections afforded them if they report unsafe conditions.
  2. When a mine is closed by a state or federal inspector’s order, all affected miners would be entitled to full compensation by the operator at their regular rates of pay and work schedule for the entire period they are idled.

Finding #8: The emergency response to the Upper Big Branch disaster raised concerns about how decision-making was conducted in the Command Center and the manner in which mine rescue teams were deployed underground. Standard protocols were not followed, effective records were not kept and rescuers’ lives were placed in jeopardy.

Recommendations:

  1. The mining industry, MSHA, and West Virginia should adopt the National Incident Management System (NIMS) Incident Command Model, a nationally recognized emergency incident management system, to improve coordination, cooperation and communication between public and private entities.
  2. Protocols should be established and followed with regard to mine rescue and recovery, using lessons learned and best practices identified from other emergency response events.
  3. The one-to-one backup system for mine rescue personnel, which is already established protocol, is absolutely critical for the safety of these volunteers.
  4. The mine rescue community should convene a summit of mine rescue team members, in particular, individuals who responded to the mine emergency incidents from 2006 to the present, to discuss the state of the U.S. mine rescue system. Advisory guidelines should be written for mine rescue teams.
  5. MSHA and West Virginia should require a digital recording of the activities and communications in a mine emergency command center. Briefings and debriefings of mine rescue team personnel also should be recorded. The current paper and pencil method fails to produce a thorough record of key data and decision points. Such a record is necessary to conduct a thorough investigation, assess the effectiveness of existing mine rescue operations and contribute to training curriculum for advanced mine rescue personnel.
  6. Mine operators’ emergency response plans (ERPs) must be treated more than just more paperwork. ERPs should be developed collaboratively with miners, their families, local responders, and mine rescue team members, and revised based on mine-specific drills and table-top exercises.

Finding #9: Investigations of major mining disasters must be conducted in an open, independent and transparent manner that inspires public trust in the fact-finding process and the conclusions that are reached.

Recommendations:

  1. The U. S. Department of Labor should adopt a public investigation process for major mine disasters. Procedures should be established to provide for public hearings, including interviews of witnesses.
  2. If the investigations continue to be under the MSHA’s direction, the agency should have subpoena power to compel witnesses to appear to testify under oath and for companies and individuals to produce evidence, including documents, data, correspondence and physical evidence.
  3. Explicit rights should be provided to any individual who is willing to speak with or provide a statement to MSHA, the state agency or the independent panel during an accident investigation, to do so without the presence, involvement or knowledge of the operator or the operator’s agents or attorneys.
  4. Rights should be granted to a deceased miner’s immediate next-of-kin to name an individual to serve as a miners’ representative in such investigations.
  5. A coordinated, formal debriefing of all mine rescue team members who respond to a major mine emergency should be conducted within a month of the event. The objectives of the assembly would include offering counsel on post-traumatic stress, discussing what worked well and what didn’t in their mine emergency response, and identifying team members whose testimony would be helpful to accident investigators.

Finding #10: Testimony from UBB miners indicated that the SCSR training they received was not effective in educating them about the practicalities of donning the device in a potential emergency situation. Miners at other operations also may not be receiving effective training.

Recommendations:

  1. SCSR training should be realistic and conducted in actual mining situations, such as riding in a mantrip and working on a longwall. It should incorporate a variety of actual in-mine scenarios for which the SCSR must be donned and activated. The training should emphasize the importance of activating the SCSR at the very first warning of an emergency.
  2. SCRS training should be conducted quarterly, instead of annually.
  3. MSHA, WVMHST and NIOSH should develop a program to measure and evaluate the effectiveness of training provided by certified trainers.

Finding #11: The prevalence of coal workers’ pneumoconiosis among the deceased Upper Big Branch miners is both surprising and troubling.

Recommendations:

  1. WVMHST, NIOSH, MSHA and the mining industry should adopt before the end of 2011 rules to: reduce the permissible exposure limit (PEL) for coal mine dust to 0.9 mg/m3; reduce the PEL for crystalline silica to 0.05 mg/m3; and mandate continuous dust monitoring, verification of mine operators’ dust control plans at normal production (e.g., at least equal to the average production recorded for the most recent 30 production shifts), and single-shift sampling.
1 For example, 30 CFR 75.370, the requirements to develop and follow a ventilation plan approved by MSHA, that is designed to control methane and respirable dust and suitable to the conditions and mining systems in the mine; 30 CFR 75.400: the prohibition of accumulated coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, in active workings including on equipment therein; 30 CFR 75.402: the requirements for rock dusting; 30 CFR 75.403: the requirement to maintain incombustible content of rock dust.
 

United States Senator Robert C. Byrd
November 20, 1917 – June 28, 2010

Senator Robert C. Byrd served West Virginia in the United States Senate from 1959 until his death in 2010. He was the longest-serving senator in the history of the United States Congress.

In one of his last commentaries, Senator Byrd lamented the loss of the 29 miners in the Upper Big Branch disaster.

“Reflecting on President John F. Kennedy’s death, Robert F. Kennedy once said, ‘Tragedy is a tool for the living to gain wisdom,’” he wrote.

Senator Byrd also said, “As West Virginians, our birthright is coal… Coal brings much-needed jobs and

revenue to our economy. But the industry has a larger footprint, including inherent responsibilities that must be acknowledged by the industry.

“First and foremost, the coal industry must respect the miner and his family. A single miner’s life is certainly worth the expense and effort required to enhance safety.

“The old chestnut that ‘coal is West Virginia’s greatest natural resource’ deserves revision. I believe that our people are West Virginia’s most valuable resource. We must demand to be treated as such.”

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