Eight Days After Accident, MSHA Cites Inadequate Rock Dust At Upper Big Branch

Posted in Uncategorized on April 19, 2010 by minesafetywatch

MSHA last Tuesday issued a citation to the Performance Coal Co. Upper Big Branch Mine – South, alleging insufficient measures to control explosive coal dust before the fatal April 5 explosion.

The April 13 citation was based on a sample taken March 15 – three weeks before the fatal accident. The time required for lab analysis of such samples creates a lag in obtaining results.

An MSHA inspector took eight dust samples from mine surfaces on March 15, the citation stated. “One out of eight samples taken were less than 80 per centum of combustible [sic] content,” read the text of the citation, in a printout from MSHA’s computer system obtained by Mine Safety and Health News.

MSHA alleged that the mine violated standard 75.403. The standard specifies that incombustible content of underground coal mine surfaces required to be rock dusted must be at least 65% in general, 80% in return air courses, and still higher – according to a formula – for each 0.1% methane present.

The samples were taken on Mechanized Mining Unit 029-0, according to the citation. A detailed mine map provided by MSHA indicated that that 029-0 was the number of the unit engaged in developing a new area for future longwall mining.

In issuing the citation – 8 days after the blast – MSHA characterized the alleged violation as “reasonably” likely to cause up to 30 deaths. Negligence by the mine operator was characterized as “low,” however.

The April 5 accident remains under investigation, and whether the alleged violation could have actually contributed remains undetermined.

MSHA also on April 13 issued a withdrawal order to the Upper Big Branch Mine under section 104(b) for alleged failure to correct a previously cited violation within the time allowed, the agency database showed.

MSHA did not respond today to a request for specifics on the alleged uncorrected violation.

Update: Initial post said “10 days.” Corrected shortly after posting.


Names Released

Posted in Uncategorized on April 17, 2010 by minesafetywatch

Ken Ward has reported that an official list of the names of the miners who died at Upper Big Branch was at last released, by the West Virginia Medical Examiner. (My own calls to the ME’s office remain unreturned.) Rose & Quesenberry Funeral Home, resopnsible for some of the funeral arrangements, has also put up a full list here.

Most of these names, if not all, were already known unofficially through private memorials, obituaries, Web pages, families and friends. Ken has been posting the many of the deeply touching obituaries as these become available. (Meanwhile the company had declined to release the names officially, citing family privacy. MSHA deferred to the company.)

Here, then, is the roll of those who lost their lives in the tragic Upper Big Branch mine explosion on April 5. The information is taken from Ken’s official list supplemented with obituary notices. (Note, in some cases I haven’t located a middle name and will update when possible.)


Carl Calvin Acord, 52
Jason Matthew Atkins, 25
Christopher Lee Bell, Sr., 33
Gregory Steven Brock, 47
Kenneth Allan Chapman, 53
Robert Eugene Clark, 41
Charles Timothy Davis, 51
Cory Thomas Davis, 20
Michael Lee Elswick, 56
William Ildon Griffith, 54
Steven J. Harrah, 40
Edward Dean Jones, 50
Richard Keith Lane, 45
William Roosevelt Lynch, 59
Nicholas Darrell McCroskey, 26
Joe Marcum, 57
Ronald Lee Maynor, 31
James E. Mooney, 50
Adam Keith Morgan, 21
Rex Lane Mullins, 50
Joshua Scott Napper, 25
Howard D. Payne, 53
Dillard Earl Persinger, 32
Joel R. Price, 55
Gary Quarles, 33
Deward Allan Scott, 58
Grover Dale Skeens, 57
Benny R. Willingham, 61
Ricky Workman, 50

May they rest in peace and may their families find comfort in their faith and in one another.

Massey Responds

Posted in Uncategorized on April 16, 2010 by minesafetywatch

My editor at Mine Safety and Health News, Ellen Smith, gave permission to republish here the following update, which was distributed to subscribers earlier today.

Massey Energy Responds On Family Benefits, Safety Record

Massey Energy is “meeting with families and describing benefits that it will provide to them,” the company advised Mine Safety and Health News in response to an inquiry about financial arrangements for families and co-workers in the wake of the April 5 explosion at the Upper Big Branch Mine.

Other Upper Big Branch miners, who no longer have a place to work since the explosion closed the mine, will be shifted to other Massey operations “where possible and practical,” the company stated.

Benefits offered to the families, the coal producer said in its statement, “are designed to ensure that no family will have to worry about missing a paycheck, paying a medical bill or sending a child to college.”

“At least one internet media source has inaccurately suggested that these benefits are being provided to settle lawsuits,” the statement continued. “This is absolutely untrue. These benefits are being provided by the Company without any obligation by the families to agree to any settlement.”

In addition, the statement continued, “The Company is aware that personal injury lawyers have published advertisements seeking cases and that some personal injury lawyers have made efforts to contact some of the families during this difficult time.

“Massey Energy believes that there will be an appropriate time to discuss settlement options with the families. If any proposals are made to the families, those families will be given a full opportunity to review those proposals with a lawyer of their choosing.

“To the extent settlements are reached, it is the Company’s desire that the families — and not personal injury attorneys — receive the money. Unfortunately, personal injury attorneys frequently take 30-40% of any settlement received by a family. The Company hopes such a result can be avoided in this circumstance,“ the company statement concluded.

Separately, Massey also published a response to yesterday’s remarks by President Obama, who noted that many questions remain unanswered but added, “…[W]e do know that this tragedy was triggered by a failure at the Upper Big Branch mine — a failure first and foremost of management, but also a failure of oversight and a failure of laws so riddled with loopholes that they allow unsafe conditions to continue.”

Massey Energy, in its response, called the President’s comments “regrettable.”

“We fear that the President has been misinformed about our record and the mining industry in general,” the company stated.

“As to our record,” the statement continued, “we note that in 2009, under this administration, MSHA presented Massey Energy with three ‘Sentinels of Safety’ Awards – the highest number of such awards ever received by one company in a single year.

“There has been criticism regarding the backlog of violations that have been appealed. There have been violations at Upper Big Branch that the Company does not agree with and a number of those violations have been appealed. The percentage of violations appealed at UBB and Massey is similar to that for the industry as a whole.

“The enormous backlog of appeals waiting to be heard has been frustrating to all involved. We urge Congress to appropriate the funds necessary to enable this system to work better by helping government regulators to resolve the enormous backlog at MSHA.

“Regardless of the backlog, however, it’s important to understand that all violations must be fixed and are fixed to the satisfaction of state and federal agencies before mines are allowed to continue operating. Most violations are fixed the same day they are discovered.

“Massey believes in safety, accountability and responsibility,” the company stated. “We seek the truth in the ongoing investigations and are cooperating with federal and state agencies to determine the cause of the tragic accident at Upper Big Branch Mine. Unfortunately, some are rushing to judgment for political gain or to avoid blame. Our goal is to communicate transparently as the facts unfold, ” the company concluded.

# # #

Just one family is known to have filed a suit over the Upper Big Branch accident. The Beckley Register-Herald has, so far as I know, the most detailed story about that lawsuit at this point.

Latest point of interest: Davitt McAteer, heading a special inquiry for the state, says he’s looking into surface blasting as a possible contributing factor, Ken Ward reports in the Charleston Gazette. Could surface blasting have caused ground movement that release massive quantities of methane? If so, that would be a novel factor in a major mine explosion, to the best of my knowledge.

What Now In Mine Safety Reform?

Posted in Uncategorized on April 15, 2010 by minesafetywatch

I wasn’t able to catch President Obama’s remarks on mine safety live, but immediatley saw the summary by Ken Ward at Coal Tattoo.

Two main thrusts in the points flagged by Ken:

MSHA needs a better way of identifying mines that need extra enforcement attention. And new legislation is almost 100% certain in the next months.

Update: exceptionally strong words from the President’s actual statement:

….we do know that this tragedy was triggered by a failure at the Upper Big Branch mine — a failure first and foremost of management, but also a failure of oversight and a failure of laws so riddled with loopholes that they allow unsafe conditions to continue.

Many experienced, intelligent and thoughtful people will be giving their best attention to reforming mine safety. The S-Miner Act, which was proposed but not enacted after Crandall Canyon in 2007, is one likely starting point.

Not an engineer, nor an attorney — but nevertheless, having worked more than 30 years around mine safety issues, I would like to offer a few personal reflections that someone might possibly find useful.

Identifying dangerous mines. I tend intuitively to agree with those who suggest the Pattern of Violations rule would work better if the formula were less complicated. As one side effect, MSHA has admitted, its computer program did not account for all factors and has missed many mines that were actually showing evidence of a pattern.

In science, there is a rule called Occam’s Razor. Don’t multiply causes and entities in a scientific theory or formula beyond the barest necessity. While identifying dangerous mines isn’t an exact science, the same principle surely applies.

Earlier this week, I was compiling selected data on certain mines from the MSHA database, and a penny dropped for me. A simple formula for mines “of concern” might look like this: the lost-workday injury rate X the VPID (violations per inspection day).

This formula could intuitively be improved by including fatalities.

It might also be improved by counting all alleged violations (VPID doesn’t count violations that are under contest or otherwise not final). I have tried this only on a spot check basis, but regulators might look at some such simple formula as:

(Fatality rate + lost-worktime injury rate) X (alleged violations per inspection day) = CR (concern ranking)

I don’t know if legally, including the contested violations would hold up as a basis for actual pattern sanctions, but even if not, surely it would be okay to use a formula like this strictly for guidance in applying extra inspection resources. (And the great majority of contested violations are ultimately upheld.)

More discretion in plan approval?

I don’t want to prejudge this accident. MSHA has not yet released the ventilation plan for Upper Big Branch. (I asked the press office and got no result, so I’ve filed a FOIA.)

But in some past situations, I have been told that MSHA was in the position of approving mine plans that its specialists were not necessarily all that happy about. The regular practice seems to be that if a mine plan — meticulously followed — appears that it will meet minimum conditions of safety, then MSHA must approve that plan. In real life, of course, plans are not always meticulously followed, unexpected conditions do arise, and minimum conditions of safety are not always enough. Again, I don’t want to prejudge this mine plan or this accident. But a question to consider is whether MSHA can and should, in general, be given the right to demand more from a mine plan than at present?

Significant and substantial. The basic legal definition of this is “reaonably likely to result in an injury or illness that is reasonably serious.” Whether a violation is rated S&S has consequences for urgency of abatement, penalties, and other sanctions (such as pattern of violations.)

To rate such violations, mine inspectors have to use judgement and consider each violation in context. If, in the total circumstances, it wouldn’t cause an injury, it would be non-S&S.

But this possibility comes to mind: a violation that is non-S&S when the inspector writes it could be S&S a few hours later. This is hypothetical…and I am not an inspector, so I stand ready to be corrected…but suppose for instance there is an area in an underground mine that has not been rock dusted. It might be relatively small and remote from the working face, with no likely ignitiion source nearby. There might be no methane in the area. Maybe it would be considered non-S&S? But perhaps, before this is corrected, ventilation conditions in the mine change for some reason, and that relatively small area becomes critical? Again, I’m speculating. But I’m wondering whether some kinds of violations should be S&S automatically. This would take legislative change.

Or does the whole idea of S&S versus non-S&S need re-thinking?

Another S&S quirk is related to health. It’s my understanding that most health violations are automatically rated non-S&S because a single overexposure is not likely to result in an illness. But a series of single exposures (whether detected or not, and MSHA cannot sample every miner on every shift) can add up to illness. Does this point about S&S deserve further consideration by Congress?

Safeguards. This relates more to single fatalities and other day-to-day accidents.

Few universal standards have been imposed on haulage and transportation in the underground coal industry. Inspectors are left to impose “safeguards” requiring haulage safety measures on a mine by mine basis. Sometimes this works out like adding traffic signals after someone is killed at an intersection. Such cases, it is my impression from writing up fatality reports, have become more prominent in recent years. Should the mining community be thinking about universal haulage safety standards in coal mines?

Other things sure to come up.

Based on past experience, I think we can expect some to argue that MSHA should be freed from the necessity to inspect all mines regularly, so that it can give more resources to inspecting the ones believed to be most dangerous at the time.

It is possible we may hear some take the position that, “The problem is too much regulation,” distracting mine operators from safety.

Others may ask that MSHA get subpoena power to compel testimony in investigative interviews, without necessarily holding a public hearing, as required now for use of a subpoena.

We will certainly hear from advocates that the whole civil penalty/contest process should be radically streamlined because backlogs are hampering enforcement.

Perhaps the contest process, in straightforward cases, could be done electronically?

And based on current news coverage, it seems a fair bet that Congress will be looking into the whole issue of ovearching corporate responsibility for mine safety in more depth than ever before.

Obviously the story is still unfolding rapidly. Just my thoughts at this point.

Do Upper Big Branch Miners’ Families Want Names Kept Secret?

Posted in Uncategorized on April 14, 2010 by minesafetywatch

This was raised with me, so a few words on it.

At this point, despite numerous polite requests, there is still no official list of fatalities from Massey, MSHA, or state officials.

If this delay is at the specific request of the miners’ families, it would be a unusual request at this stage in my experience. But surely the authorities have only to say so?

Certainly, I would respect a family’s request for privacy in the immediate aftermath of such a loss. But no one has been willing to say this on record who knows about the cause of the delay.

I contacted Massey again this morning, and got this statement: “The company has not released the names of the miners out of respect for the families involved.” Which implies, perhaps, but stops short of actually saying in so many words that the families requested withholding.

I also don’t understand why the company would withhold the names from MSHA, as a spokewoman for MSHA indicated yesterday. Massey’s statement on the spokewoman’s comment was: “We don’t understand how that can be.”

Meanwhile, the names of most — perhaps all — the victims are, in fact, widely known and being circulated on an unofficial basis in Montcoal and elsewhere. I have not made a complrehensive search of the Web, but for instance, WTRF-TV has reported 22 names, which the TV stations states were “confirmed through the State Medical Examiner and family members.” (My emphasis.)

Annoyance to families is, in my experience, more likely to result from outsiders — such as TV reporters — attempting to establish the facts in the absence of official information. An official ID at this point would simply close the chapter. I, for one, as a reporter for Mine Safety and Health News would prefer to have official information and will use unofficial sources only if I must.

Meanwhile, Governor Manchin is starting a news conference, so we’ll see what that brings.

In other news, MSHA has emailed registrants to cancel an April 27 stakeholder meeting in Triadelphia, W.VA. that was scheduled (before the accident) to discuss mine emergency response.

Massey Withholds Victim Identities From MSHA: Spokeswoman

Posted in Uncategorized on April 13, 2010 by minesafetywatch

A continuing saga that looks odder and odder.

I’ve been for two days in search of an official roster of the miners who lost their lives in Upper Big Branch. In strange contrast to the usual routine nature of this kind of information, nothing officially forthcoming from MSHA, the state or the company so far (see earlier posts).

MSHA spokewoman Amy Louviere informed me earlier today:

We don’t yet have the names of the victims.

I wrote back:

Why doesn’t MSHA have the names of the victims, may I ask? Didn’t MSHA ask the company for this info?

Her reply:

Company hasn’t yet provided.

To reiterate a few things I’ve said:

I worked at MSHA for more than 25 years — including as information officer in mine accidents and investigations — and have covered mine safety stories for almost 6 years since then. I have never heard of the names of mine accident victims being kept secret once their families were properly notified.

To the best of my knowledge, it has been standard practice for mine agencies to obtain the victim or victims’ names from the mine operator in any fatal mine accident or prolonged entrapment. What in the world is going on?

Why are the names of deceased employees being — apparently — treated like the private property of their employer?

Yeah — I can’t believe it either.

Upper Big Branch Had Unidentified Pattern of Violations

Posted in Uncategorized on April 13, 2010 by minesafetywatch

MSHA posted this statement from Secretary of Labor Hilda Solis at 5:50 p.m. today.

On Monday evening, [a] review found an error in the computer program used since 2007 to screen mines to determine whether they meet the criteria for inclusion into pattern of violation status. Specifically, the program was not counting final orders of unwarrantable citations in the ‘unpaid and uncontested; first demand letter sent’ category. This error was immediately corrected and the data re-run.

“Massey Energy’s Upper Big Branch Mine had eight citations in this category, which were not counted in the screening process.

“Inclusion of these orders means that the Upper Big Branch Mine should have been identified for further consideration for placement on a potential pattern of violation status.

“It is very likely that the Upper Big Branch Mine would have received a letter from MSHA informing Massey Energy that this mine would be included on the potential pattern of violation list.

“Had the error in the computer program been corrected, the mine could have been placed into potential pattern of violation status in October of 2009, when the last pattern of violation review for this mine took place.

On the other hand, the statement continues, the mine most likely would have avoided actual pattern sanctions because it later improved its record somewhat. It would not have been on the potential pattern list at the time of the explosion.

House Democrats immediately called for an investigation:

WASHINGTON, D.C. – U.S. Reps. George Miller (D-CA), chair of the House Education and Labor Committee, Nick Rahall (D-WV), chair of the House Natural Resources Committee, and Lynn Woolsey (D-CA), chair of the House Workforce Protections Subcommittee, today called on the U.S. Department of Labor Inspector General to investigate the disclosure that a computer error prevented the federal Mine Safety and Health Administration from issuing a letter to the Upper Big Branch mine in Montcoal, West Virginia warning them that the mine may be under a so-called ‘pattern of violations.’ The chairs also asked the Inspector General to look at how MSHA uses their ‘pattern of violation’ enforcement.

Meanwhile, I filed a formal FOIA with MSHA for preliminary reports and/or an official roster of the accident victims at Upper Big Branch. Spokeswoman Amy Louviere replied:

We don’t yet have the names of the victims.

The mine blew up 8 days ago, all of the missing had been found 4 days ago, the last victims were recovered today, and MSHA still doesn’t know who was in the mine?

I worked at MSHA for more than 25 years — including as information officer in mine accidents and investigations — and have covered mine safety stories for almost 6 years since then. Speaking form that perspective, this has become, I am sorry to say it, bizarre. I have never heard of the names of mine accident victims being kept secret once their families were properly notified.

And to the best of my knowledge, it has been standard practice for MSHA to obtain the victim or victims’ names from the mine operator in any fatal mine accident or prolonged entrapment. What in the world is going on?

Update: Ken Ward at Coal Tattoo has other updates this p.m., including appointment by Gov. Manchin of former MSHA assistant secretary Davitt McAteer to head a state investgation — just as McAteer did in the 2006 Sago explosion. McAteer is a longtime advocate and practitioner of sunshine in these investigations — a good thing, too.

Note: Comment function for this blog is still messed up. I have contacted tech support.