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Coal Mine Safety and Health
Linda Levine
Specialist in Labor Economics
July 15, 2010
Congressional Research Service
7-5700
www.crs.gov
RL34429
CRS Report for Congress
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repared for Members and Committees of Congress
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Coal Mine Safety and Health
Summary
Fatal injuries associated with coal mine accidents fell almost continually between 1925 and 2005.
In 2006, however, the number of fatalities more than doubled to 47, which prompted the 109th
Congress to enact the Mine Improvement and New Emergency Response Act (MINER, P.L. 109-
236). Fatalities declined in subsequent years and dropped to a low of 18 in 2009. After the deaths
of 29 coal miners at Massey Energy’s Upper Big Branch (UBB) mine in West Virginia on April 5,
2010, the 111th Congress turned its attention to the issue of mine safety.
In the wake of the methane explosion at Sago mine in West Virginia in January 2006, the Mine
Safety and Health Administration (MSHA) was criticized for its slow pace of rulemaking earlier
in the decade. MSHA standard-setting activity quickened after enactment of the MINER act in
June 2006. The amendment of the 1977 Mine act emphasized factors thought to have played a
role at Sago and other recent incidents, and imposed several rulemaking deadlines on MSHA. The
agency published all the requisite final standards except one: the MINER act required that, by
June 15, 2009, two-way wireless communications systems and electronic tracking systems be part
of emergency response plans (ERPs). In January 2009, MSHA issued a letter stating that “because
fully wireless communications technology is not sufficiently developed at this time, nor is it
likely to be technologically feasible by June 15, 2009 ... [n]ew ERPs and revisions to existing
ERPs should provide for alternatives to fully wireless communication systems.”
Some Members characterized passage of the MINER act as a first step. In 2008, the House passed
the Supplemental Mine Improvement and New Emergency Response Act (S-MINER) as
amended. Some of the bill’s provisions addressed issues that arose from the Crandall Canyon
Mine incident in Utah in August 2007. S-MINER was opposed by the Bush Administration.
In 2010, one issue policymakers have focused on is the greatly increased number of citations for
violations being contested by mine operators. The UBB mine incident brought to public attention
the potential implications for miner safety of operators appealing to the Federal Mine Safety and
Health Review Commission (FMSHRC) penalty assessments proposed by MSHA. Through
publication of an interim rule and a notice of proposed rulemaking in spring 2010, FMSHRC
intends to speed its civil penalty proceedings and thereby more quickly issue final orders that
MSHA can include when determining whether a mine should be placed in pattern of violations
(POV) status. The Miner Safety and Health Act of 2010 (H.R. 5663), introduced on July 1,
includes provisions changing POV criteria as well as withdrawing all persons from coal or other
mines in POV status and doubling the number of mandated inspections at those mines. The bill
also defines in statute significant and substantial mine safety and health violations, strengthens
whistleblower protections for miners and other workers covered by the Occupational Safety and
Health Act (OSH Act), and amends civil and criminal penalty provisions in the Mine act and the
OSH Act. H.R. 5663’s amendment of the OSH Act is similar to provisions in the Protecting
America’s Workers Act (H.R. 2067, S. 1580). The Committee on Education and Labor held a
hearing on the bill on July 13, 2010.
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Contents
Working Conditions in the Coal Mining Industry......................................................................... 1
Safety ................................................................................................................................... 1
Health ................................................................................................................................... 3
The Regulatory Regime .............................................................................................................. 4
Standards .............................................................................................................................. 4
Safety ............................................................................................................................. 4
The Mine Improvement and New Emergency Response Act ...................................... 4
Drug and Alcohol Use............................................................................................... 6
Health ............................................................................................................................. 7
Personal Dust Monitors............................................................................................. 7
Concentration of Respirable Coal Mine Dust............................................................. 8
Enforcement ......................................................................................................................... 8
Upper Big Branch (UBB) Mine: Contested Penalties and Pattern of Violations................ 8
Crandall Canyon ........................................................................................................... 10
Legislative Activity................................................................................................................... 12
110th Congress .................................................................................................................... 12
The Supplemental Mine Improvement and New Emergency Response Act .................... 12
The Mine Communications Technology Innovation Act................................................. 13
111th Congress..................................................................................................................... 14
Tables
Table 1. Number of Fatalities and Fatal Injury Rate in the Coal Mining Industry, 1995-
2009 ........................................................................................................................................ 3
Contacts
Author Contact Information ...................................................................................................... 15
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ews accounts of miners losing their lives as a result of accidents at underground coal
mines have appeared more often in recent years. The methane explosion in 2006 at West
N Virginia’s Sago mine, in which 12 trapped miners died, shined a bright light on working
conditions at the nation’s coal mines. The partial collapse in 2007 at Utah’s Crandall Canyon
mine further drew attention to the plight of coal miners who work underground. These, among
other incidents through 2007, prompted Congress to step up its legislative and oversight activities
with respect to the safety and health of those who toil in the country’s coal mines. The 29
fatalities that occurred on April 5, 2010, at West Virginia’s Upper Big Branch (UBB) mine have
led the 111th Congress to turn its attention to the working conditions of the nation’s coal miners.
This report begins by reviewing the record of working conditions in the coal mining industry. It
then describes the regulatory regime of the U.S. Department of Labor’s Mine Safety and Health
Administration, incorporating discussion of the standard-setting required by the Mine
Improvement and New Emergency Response Act of 2006. The practice in recent years of mine
operators contesting a greatly increased number of MSHA-proposed penalties for safety and
health violations is next discussed in relation to the record at the UBB mine prior to the
explosion. The report closes with an examination of legislative initiatives in the 110th Congress
and the 111th Congress.
Working Conditions in the Coal Mining Industry
Safety
Safety in the coal mining industry is much improved compared to the early decades of the 20th
century, a period in which hundreds of miners could lose their lives in a single accident and more
than 1,000 fatalities could occur in a single year. Fatalities associated with coal mine accidents
fell almost steadily between 1925 and 2005, when they reached an all-time low of 23.1
Nevertheless, coal mining remains one of the most dangerous employment sectors as measured
by fatal work injuries. The fatality rate among persons employed in the private sector was 3.7 per
100,000 full-time equivalent employees (FTEs) in 2008, the latest year for which data are
available from the U.S. Bureau of Labor Statistics (BLS). In contrast, 18.1 fatalities per 100,000
FTEs were recorded across all segments in the mining industry in that year. In terms of non-fatal
accidents, mining does not diverge greatly from the all-industry average. In what follows, then,
the concentration is on fatal accidents.
A variety of factors may have contributed to the long-term improvement in safety at the nation’s
coal mines (e.g., decreased employment, shift from underground to surface mining, and increased
productivity). New machinery such as longwall systems not only reduced the total number of
workers needed, but also did so at the most dangerous spots (e.g., the active cutting face). Other
measures that likely have prevented many large-scale accidents include controlling coal dust,
monitoring methane gas (which is both explosive and poisonous), adequately supporting roofs,
and avoiding spark-producing equipment.
1 Data available at http://www.msha.gov/stats/centurystats/coalstats.asp.
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It would be very difficult to determine conclusively how much of the progress in safety has been
due to the activities of the Mine Safety and Health Administration (MSHA). Much of the industry
might have voluntarily adopted the safety requirements in MSHA standards (regulations) without
that inducement. And indeed, safety increased for a long time before Congress passed the Federal
Mine Safety and Health Amendments Act of 1977 (P.L. 95-164) in which MSHA was established
within the Department of Labor.2
Despite the progress made in worker safety and their disagreement on the specific course of
action to be followed,3 labor and management concur that there is still room for improvement—
especially in light of incidents that occurred within the past 10 years. For example, the flooding of
the Quecreek mine in Pennsylvania in July 2002 raised questions about the accuracy of
underground mine maps and their availability to operators of nearby mines. The Quecreek
accident might have been avoided if the mine operator had access to the final map of a nearby
abandoned mine that had since filled with water.
In January 2006, a methane explosion at West Virginia’s Sago mine, which was precipitated by
lightning that penetrated underground, killed one miner initially. Twelve of the 16 miners who
survived the explosion became trapped and succumbed ultimately to carbon monoxide from the
ensuing fire. The episode raised a number of safety issues that were discussed at a hearing of the
Senate Appropriations Subcommittee on Labor, Health and Human Services, Education, and
Related Agencies in January 2006, including the possibility that different communication and
tracking devices might have enabled the trapped miners to escape or find better refuge, or
rescuers to reach them more quickly. In addition, emergency breathing apparatus issued to the
miners were rated for only one hour and a number of the apparatus reportedly did not work well.
There also was criticism of the fact that it took 11 hours from the explosion until rescuers entered
the mine.4
Accidents at Sago and other coal mines in 2006 more than doubled the number of fatalities from
23 in 2005, to 47 in 2006, a level last reached in 1995. (See
Table 1.) Until the death of 29 miners
at the UBB mine in West Virginia on April 5, 2010, the number of fatal work injuries declined
steadily and fell to 18 in 2009.
Despite the improvement shown in 2007, the collapse at Utah’s Crandall Canyon mine in August
of that year—which resulted in deaths of six miners and three rescuers and injuries sustained by
six others—again highlighted the risks of working in underground coal mines. Rescuers
repeatedly sent messages on pager-like devices to the trapped miners, but it is unknown whether
they ever were received. As mentioned in connection with the Sago tragedy, other technologies
might have allowed communication with and location tracking of the miners.
2 In prior decades, Congress initiated and gradually expanded safety and health regulation of coal and other mining
industries within the Department of the Interior.
3 The United Mine Workers (UMW) union has wanted MSHA to be more active. It has for some time asserted that
there are not enough inspectors and that penalties (proposed and negotiated) are not large enough. In general, the UMW
would make enforcement of standards the highest priority. The mining industry generally has supported the regulatory
approach that characterized much of the current decade. It has urged that inspections be focused on mines with evident
problems rather than on all mines, as required by law.
4 Ironically, one of the “lessons learned” from a September 2001 accident at Alabama’s Jim Walter No. 5 mine appears
to have led to the delay at Sago. Because most of the victims in the earlier accident were responding to a relatively
small explosion when a larger one occurred, considerable time was taken to verify the state of the atmosphere in the
Sago mine before rescue teams were sent in.
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Table 1. Number of Fatalities and Fatal Injury Rate
in the Coal Mining Industry, 1995-2009
Fatal Injury Rate (reported
Number of
injuries per 200,000
Year
Fatalities
hours worked)
1995 47
0.04
1996 39
0.03
1997 30
0.03
1998 29
0.03
1999 35
0.03
2000 38
0.04
2001 42
0.04
2002 27
0.03
2003 30
0.03
2004 28
0.03
2005 23
0.02
2006 47
0.04
2007 34
0.03
2008 30
0.02
2009 18
0.01
Source: U.S. Department of Labor, Mine Safety and Health Administration.
Health
Accidental injuries can be quantified much more reliably than the extent of occupationally caused
disease. It is clear, though, that coal mining causes disability much more by way of long-latency
disease than by traumatic injury. Prime among these diseases is black lung (coal workers’
pneumoconiosis, CWP), which still claims some 1,000 fatalities per year despite being down by
about half since 1990.5 Deaths tend to occur after a long progression, resulting in one year of life
expectancy being lost on average for these cases. However, many years of impaired breathing and
debilitating weakness often precede death, which may not be counted as a mining-related fatality
because the ill miner dies from other immediate causes.
Improved dust control requirements have led to a decrease in the prevalence of CWP. Among
miners with 20-24 years of work experience, for example, the proportion of examined miners
who had positive x-rays decreased from 23.2% in the mid-1970s to 2.2% in the late 1990s.6
Interestingly, sharp drops in rates occurred at certain times: for workers with 25-29 years of
mining experience, the rate fell from 20.2% in the 1987-1991 survey to 5.4% in the 1992-1996
5 U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for
Occupational Safety and Health,
Work-Related Lung Disease Surveillance Report 2002, Section 2 (CWP and Related
Exposures), DHHS (NIOSH) report no. 2003-111, May 2003.
6 Ibid.
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survey; the former cohort began their careers around 1962, the latter around 1967. Under the
Federal Coal Mine Health and Safety Act of 1969 (P.L. 91-173), commonly referred to as the
Coal Act, tighter dust standards were phased in from 1970 to 1973.
In recent years, however, the U.S. Department of Health and Human Services’ Centers for
Disease Control and Prevention (CDC) found advanced cases of CWP among underground
miners younger than 50. This is regarded as particularly troubling because these individuals were
exposed to coal dust after the preventive measures in the Coal Act went into effect. The CDC
suggested four explanations for the continuing development of advanced pneumoconiosis:
1) inadequacies in the mandated coal-mine dust regulations; 2) failure to comply with or
adequately enforce those regulations; 3) lack of disease prevention innovations to
accommodate changes in mining practices (e.g., thin-seam mining) brought about by
depletion of richer coal reserves, and 4) missed opportunities by miners to be screened for
early disease and take action to reduce dust exposure.7
The Regulatory Regime
MSHA is charged with overseeing the safety and health of those employed in underground and
surface coal mining and in other mining industries (e.g., iron ore, sand and gravel). The agency is
mandated to inspect each underground mine at least four times a year and each surface mine
twice a year. (Not until FY2008 did MSHA fulfill this mandate. The agency put in place the “100
Percent Plan” in October 2007 to achieve the required inspections of 14,800 active mining
operations.)8 MSHA not only has the authority to assess financial penalties for violations of its
authorizing statute, but it also has direct authority to immediately shut down dangerous
operations.
Standards
MSHA regulations, often referred to as standards, cover a wide range of equipment, procedures,
certifications and training including methane monitoring, dust control, ventilation, explosives, fire
protection, roof support, maps, communications and emergencies. See
Code of Federal
Regulations, Title 30, Chapter 1; coal mines are specifically addressed in Subchapter O.
Safety
The Mine Improvement and New Emergency Response Act
In the wake of the Sago accident in January 2006, the agency was criticized for its slow pace of
rulemaking, allegedly withdrawing 18 proposed standards that had been pending as of January
7 “Advanced Pneumoconiosis Among Working Underground Coal Miners—Eastern Kentucky and Southwestern
Virginia, 2006,”
MMWR Weekly, July 6, 2007.
8 “MSHA Says 100 Percent Plan Succeeded in Completing All Mandated Mine Inspections,”
Daily Labor Report,
December 15, 2008.
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2001.9 The Bush Administration said in response that it was pursuing a revised agenda,10 and
being more frank by no longer listing long-term projects on which little progress had been made.
Legislative activity undertaken at both the state (e.g., West Virginia, Kentucky, and Illinois) and
federal levels in 2006 emphasized factors thought to have played a part in the Sago mine disaster
(e.g., emergency oxygen supplies, tracking and communication systems, deployment of rescue
teams). The most prominent measure, and the first major revision of federal mine safety
legislation since 1977, is the Mine Improvement and New Emergency Response (MINER) Act
(P.L. 109-236).11
MSHA rulemaking activity started to quicken after enactment of P.L. 109-236 in June 2006. A
final rule on emergency mine evacuation went into effect in December 2006. The final regulation
includes requirements for increased availability and storage of breathing devices (self-contained
self-rescuers, SCSRs), installation and maintenance of escape guides (lifelines) in underground
coal mines, and immediate notification of accidents at all mines. In March 2007 (as opposed to
the MINER act’s deadline of December 2006), MSHA issued another final rule; it raised the civil
penalties for all mine safety and health violations, including those specified in the MINER act.
The act also set a deadline (December 2007) for MSHA to promulgate new requirements that
mine operators must meet concerning rescue teams. In February 2008, MSHA issued a final rule
that among other things mandates the hours and frequency of training for mine rescue team
members.12 In response to the D.C. Circuit Court of Appeals invalidating part of the mine rescue
team rule in February 2009, MSHA published a final rule in June complying with the court’s
decision that requires mine-site teams at small mines to train semi-annually rather than annually
and state employees on state-sponsored rescue teams to train at small mines semi-annually as well
as participate in two mine rescue contests annually rather than one. The MINER act further
required MSHA to finalize, by December 2007, a standard for mine seals and increase from 20
pounds per square inch (psi) the horizontal static pressure that a seal could withstand. In April
2008, the agency issued the final rule on sealing of abandoned areas.
Continued congressional dissatisfaction with MSHA’s performance following passage of the
MINER act in 2006 resulted in inclusion of provisions related to the safety of miners in the
Consolidated Appropriations Act, 2008 (P.L. 110-161). Signed in December 2007, this act
required the agency to issue a proposed rule (June 2008) and a final rule (December 2008)
consistent with the recommendations of the Technical Study Panel on the Utilization of Belt Air
that had been established by the MINER act.13 Within the same time frame, P.L. 110-161 also
9 Jody Warrick, “Federal Mine Agency Considers New Rules to Improve Safety,”
Washington Post, January 31, 2006,
p. A3.
10 Standards proposed and adopted in the 2001-2005 period include methane testing (alternate means), emergency
evacuations, belt entries as air intakes, and training shaft and slope construction workers.
11 Earlier in the decade, Congress gave MSHA $10 million to collect and digitize mine maps and new technologies for
detecting mine voids (Consolidated Appropriations Resolution, 2003, P.L. 108-7). The Emergency Supplemental
Appropriations Act of 2006 (P.L. 109-234) made available $26 million for MSHA to hire 170 coal mine inspectors
above the agency’s June 2006 level, and $10 million for NIOSH to conduct research on new safety technologies.
12 Relatedly, in September 2008, the agency published a final standard on the equipment that must be contained in mine
rescue stations at underground coal and metal/nonmetal mines, and a final standard concerning firefighting equipment
in underground coal mines.
13 Belt air is air directed underground to ventilate active work areas via the same tunnels in which conveyor belts
remove coal from mines. Because these tunnels consequently contain a great deal of highly flammable coal dust, some
think that using them for ventilation increases the risk of directing fires toward the work areas of miners and toward
their evacuation routes.
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directed the Secretary of Labor to propose and finalize regulations consistent with the
recommendations of NIOSH made pursuant to the MINER act requiring rescue chambers or
equally protective refuge facilities in underground coal mines. MSHA met these deadlines for
publishing the two standards. After receiving the final report of the study panel on use of belt air
in December 2007, MSHA published a final rule concerning fire prevention and detection in
connection with conveyor belts in December 2008. The standard requires operators to request
agency approval in their mine ventilation plans to use air from belt entries to ventilate working
sections of mines, requires airlocks on doors along escape ways, reduces levels of respirable dust
at belt entries, and mandates installation of smoke sensors within one year of their approval by
MSHA, among other things. In December 2008, as well, MSHA issued a final rule on refuge
alternatives and their components (e.g., breathable air, water, first-aid supplies). The rule permits
two kinds of refuges, each of which must among other things provide 96 hours of breathable air,
allow a minimum 15 square feet of floor space, be located within 1,000 feet of the nearest
working face, and have an apparent temperature of 95 degrees Fahrenheit or less. Other refuge
alternatives are to be phased out over time. In addition, operators must describe the location of
refuge alternatives in their emergency response plans (ERPs), train miners to locate and use
refuges, and conduct examinations of refuges and their components before the start of shifts.
The rule on refuge alternatives further requires that they contain a two-way communication
facility that is part of the mine communication system. Although such two-way communication
systems were not available when the rule was issued in December 2008, MSHA stated that it
wants them included in ERPs as mandated by the MINER act. In order for an underground mine
operator’s plan to be approved, the act imposed a deadline (June 2009) for provision of “post
accident communication between underground and surface personnel via a wireless two-way
medium,” and for provision of “an electronic tracking system permitting surface personnel to
determine the location of any persons trapped underground or set forth within the plan the reasons
such provisions cannot be adopted.” On January 16, 2009, MSHA issued a program policy letter
that provides guidance for complying with the post-accident two-way communications and
electronic tracking requirements of the MINER act. It notes that because MSHA-approved
electronic tracking systems are available, mine operators should provide for them in new and
revised ERPs. But,
because fully wireless communications technology is not sufficiently developed at this time,
nor is it likely to be technologically feasible by June 15, 2009, ... [n]ew ERPs and revisions
to existing ERPs should provide for alternatives to fully wireless communication systems....
While operators and District Managers must consider mine-specific circumstances in
determining appropriate two-way communications systems, this guidance outlines the
features MSHA believes would best approximate the functional utility and safety protections
of a fully wireless system, given the limitations of current technology.
Drug and Alcohol Use
After receiving comments in late 2005 in response to its advanced notice of rulemaking on the
use of or impairment from alcohol and drugs on coal mine property, MSHA issued a proposed
rule in September 2008. The rulemaking was withdrawn in the regulatory agenda released in fall
2009 based on the comments received and insufficient data about the contribution of alcohol and
drug use to accidents. The current MSHA standard prohibiting possession and use of intoxicating
drinks and narcotics applies only to surface and underground metal and nonmetal mines (30
C.F.R. Sections 56.20001 and 57.20001). The proposed rule, codified at 30 C.F.R. Subchapter N
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(Uniform Mine Safety Regulations), would have extended coverage to surface and underground
coal mines.14
Health
Personal Dust Monitors
Controversy has continued for many years about how dust concentrations are measured in mines.
After MSHA proposed new regulations in 2000, which were superseded by revised proposals in
March 2003, it suspended work on a final rule in June 2003 to obtain information on recently
developed continuous personal dust monitors (CPDMs) that NIOSH was testing. CPDMs are a
new technology that can give individual real-time readings of dust concentration and help resolve
longstanding disputes about how air samples are to be handled. In May 2007, NIOSH’s Jeffrey
Kohler testified at a hearing of the Subcommittee on Employment and Workplace Safety of the
HELP Committee that the institute’s research showed miners equipped with CPDMs were able to
greatly reduce respirable dust exposure based on having real-time dosimetry.
On January 16, 2009, MSHA published a proposed rule to revise existing requirements for the
approval of sampling devices that monitor miner exposure to respirable coal dust. It revises 30
C.F.R. Part 74 by creating performance-based requirements that would permit MSHA and NIOSH
to approve the use of CPDMs.15 The new device, by allowing real-time measurement of the
respirable dust to which coal miners are exposed, “offers the best solution for protecting miners
from” CWP and silicosis according to MSHA.16 The rule also updates the design-based
requirements for the coal mine dust personal sampler units (CMDPSUs) that have been used since
1970. These devices employ a filter cassette to ascertain the concentration of respirable dust; the
cassette is sent to MSHA for processing at the end of a full shift or eight hours, whichever is less.
In April 2010, the final rule was published in the
Federal Register. It went into effect in June
2010. (On the same day, MSHA also published a final rule revising the agency’s electrical safety
standard for the installation, use, and maintenance of high-voltage continuous mining machines in
underground coal mines. It too became effective in June.)
14 The proposed rule generally would have adopted the Department of Transportation’s (DOT’s) testing program
requirements (49 C.F.R Part 40) that call for testing under the following circumstances: pre-employment, random
unannounced, post-accident if the employee might have contributed to the accident, and based on reasonable suspicion
of an employee having used a banned substance. Like the DOT regulation, the proposed rule would have required the
removal from safety-sensitive duties of employees who test positive and their referral to substance abuse professionals.
In order to resume performing these job duties, the employees would have to undergo return-to-duty and follow-up
testing. The proposed rule further required operators to give violators one chance to obtain help and retain their jobs.
The disciplinary consequences for subsequent violations were left up to the mine operator.
15 By law, NIOSH and MSHA must jointly approve devices to measure respirable dust concentrations in coal mines.
MSHA’s specific role is to “approve the intrinsic safety of the device, which assures that the device could be operated
safely in the potentially explosive atmosphere of an underground coal mine” (74 FR 11, p. 2916).
16 Department of Labor, Mine Safety and Health Administration, “Coal Mine Dust Personal Monitors, proposed rule,”
11
Federal Register 2917, January 16, 2009.
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Concentration of Respirable Coal Mine Dust
The above-described rulemaking concerning CPDMs does not address the requirements in 30
C.F.R. parts 70, 71, and 90 about the use of sampling devices (e.g., who, when, and how often).
According to the fall 2009 regulatory agenda, MSHA incorporated compliance sampling for
respirable coal dust and determination of its concentration into rulemaking on lowering miners’
exposure to respirable coal mine dust. MSHA intends to issue a notice of proposed rulemaking
(NPRM) on these matters in September 2010. The regulatory agenda also states that the agency
will publish an NPRM on miners’ exposure to respirable crystalline silica in April 2011.
MSHA is expressly required by its authorizing statute to enforce a dust control standard that
reduces the incidence of black lung and silicosis. The (mandatory) permissible exposure limit
(PEL) to respirable coal mine dust currently set by regulation is 2 milligrams per cubic meter. In
1995, NIOSH developed a (voluntary) recommended exposure limit (REL) for coal dust of 1
milligram per cubic meter, and for silica dust, 0.05 milligrams per cubic meter.17 The Secretary of
Labor convened an Advisory Committee on the Elimination of Pneumoconiosis Among Coal
Mine Workers in 1996, which issued a final report at that time making recommendations to
reduce exposure to coal mine dust and silica.
Enforcement
Upper Big Branch (UBB) Mine: Contested Penalties and Pattern of Violations
The increased value of civil penalties promulgated by MSHA in its 2007 rule coincided with
employers increasingly appealing cases to the Federal Mine Safety and Health Review
Commission (FMSHRC), an independent adjudicatory agency. Operators contested 10,036 out of
135,718 violations of mandatory safety and health standards in 2006, or 7.4%. Contested citations
doubled to 15.0% in 2007 (19,546 out of 130,137 violations) and rose again to 23.5% in 2008
(46,792 out of 198,700). While the number of cited violations dropped to 173,928 in 2009, the
number contested fell to a much lesser extent (46,526), thereby raising the percentage contested
to 26.8%. Similarly, the percentage of proposed dollars assessed being appealed to FMSHRC
jumped from 34.8% in 2006 ($12.2 million out of $35.1 million) to 54.5% in 2007 ($40.6 million
out of $74.5 million). The percentage rose still further to 68.9% in 2008 ($133.8 million out of
$194.2 million). The percentage of dollars assessed being contested fell somewhat in 2009 to
65.8% ($92.9 million out of $141.2 million).
Although operators must abate safety and health violations for which they are issued citations,
they do not have to pay proposed penalty assessments to the Treasury until an administrative law
judge (ALJ) at FMSHRC issues a final order (i.e., renders a decision). Interest is not applied to
penalties while a case waits to be heard by an ALJ. In FY2009, the average time from case receipt
at FMSHRC to disposition was 319 days and 3,738 cases remained undecided for over one year.18
17 U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for
Occupational Safety and Health,
Criteria for a Recommended Standard: Occupational Exposure to Respirable Coal
Mine Dust, DHHS (NIOSH) publication no. 95-106, September 1995.
18 Federal Mine Safety and Health Review Commission,
Congressional Budget Justification FY2011, p. 19.
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The workload of ALJs at FMSHRC has greatly increased since MSHA’s civil penalties rule went
into effect in 2007. The number of new cases being appealed to the Commission by mine
operators almost tripled (from 3,406 to 9,239) between FY2006 and FY2009. The backlog of
cases waiting to be heard by ALJs rose ninefold (from 1,589 to 14,213) over the same period,
which accounts for the greatly delayed decisions noted above.19
The explosion at the UBB mine on April 5, 2010, in which 29 miners lost their lives, brought to
public attention the potential implications of the backlog at FMSHRC. Some initially thought that
the mine had met MSHA’s criteria for issuing a notice of a pattern of violations (POV) before the
explosion occurred.20 But, the citations the UBB mine operator has appealed to FMSHRC kept
the mine from meeting the POV notice criteria, which considers only final orders of FMSHRC.21
If a POV notice had been in effect prior to April 5, an inspector finding a significant and
substantial violation of a mandatory safety and health standard would have been required to issue
an order to withdraw all workers from the mine section affected by the violation until the cited
condition was abated.22 President Obama has called upon the Secretary of Labor “to streamline
the rules for proving that a mining company has committed a pattern of violations.”23
In testimony given before the House Education and Labor Committee in February 2010,
FMSHRC said it was looking at its adjudication system to see where procedures might be
streamlined through administrative and rulemaking changes. The Commission is required by
section 110(k) of the Mine act, as amended, to approve settlements of contested civil penalties
worked out by the parties. In an effort to speed the processing of settlement cases and thereby
more quickly issue final orders, FMSHRC developed an interim rule that went into effect in May
2010, which applies to all civil penalty cases except discrimination cases or cases against
individuals (sections 105(c) and 110(c), respectively). The rule requires a party filing a motion for
ALJ approval of a penalty settlement to include a proposed order (decision) approving the
settlement and to certify that it is authorized by the opposing party to represent that the opposing
party agrees to the submission of the proposed order; the motion must be filed electronically.24
Also in May, FMSHRC published a NPRM concerning the replacement of conventional
procedures with “simplified proceedings” in some civil penalty cases as a means of streamlining
the administrative process (e.g., answers to petitions for assessment of penalty not required;
motions eliminated to the extent practicable; rather than discovery, mandatory exchange of
documents and a pre-hearing conference among the parties and ALJ to narrow and define the
19 Federal Mine Safety and Health Review Commission, annual budget justifications from FY2007 to FY2011.
20 Kimberly Kindy, Steven Nufson, and Ed O'Keefe, “Mines Avoid Crackdowns by Fighting Citations,”
The
Washington Post, April 10, 2010, pp. A1, A6.
21 As of April 5, 2010, 49 of the 82 violations assessed against Upper Big Branch Mine-South in 2008 were still being
contested, as were all 179 violations assessed in 2009 and all nine violations assessed through April 5 of this year.
When MSHA initially screens mines to see whether a POV may be developing, it looks back over a 24-month period.
Those mines that meet all of the initial screening criteria must then fulfill additional criteria developed by MSHA in
order to be issued a POV notice. Only citations and orders that are final can be counted toward the 30 CFR Part 104.3
criteria for issuing a POV notice. For additional information, see http://www.msha.gov/PerformanceCoal/
Upper%20Big%20Branch-South%20Mine%20Civil%20Penalty%20Summary.pdf and http://www.msha.gov/POV/
POVScreeningCriteria.pdf.
22 A significant and substantial (S&S) violation is one that could reasonably be expected to lead to a serious injury or
illness.
23 Gayle Cinquegrani, “Streamline Pattern of Violations Rules, Inspect Troubled Mines, Obama Tells Solis and
MSHA,”
Daily Labor Report, April 16, 2010.
24 Federal Mine Safety and Review Commission, “Penalty Settlement Procedures, interim rule with request for
comments,” 75
Federal Register 21987, April 27, 2010.
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disputed issues). After the pre-hearing conference, an ALJ would conduct a full due process
hearing on any issues still in dispute and issue a final order within 60 days. Cases eligible for
simplified proceedings generally would have at least one of the following characteristics: total
proposed penalty of not more than $15,000 per docket and not more than $50,000 per proceeding;
no citation or order under sections 104(b), 104(d), 104(e), 105(c), 107(a), 110(b), 110(c), or 111
of the Mine act, as amended; no associated fatalities; a hearing expected to last one day or less.25
Relatedly, on June 23, 2010, DOL’s Office of the Inspector General (OIG) provided a memo to
Joseph Main (MSHA’s Assistant Secretary for Mine Safety and Health) advising him that in
March 2009, the agency’s Coal Mine Safety and Health Administrator had inappropriately told
district managers to limit the number of mines considered for placement in POV status to no more
than one per field office and no more than three per district.26 The OIG recommended that MSHA
reevaluate the status of the 10 mines that were removed from the POV screening list as a result of
the administrator’s limit out of concern about the safety and health conditions at those mines.
Main subsequently ordered inspections of the mines and stated that MSHA intends to develop
new POV criteria.27
Crandall Canyon
After the HELP Committee released
Report on the August 6, 2007 Disaster At Crandall Canyon
Mine and DOL’s Office of Inspector General published
MSHA Could Not Show It Made the Right
Decision in Approving the Roof Control Plan at Crandall Canyon Mine in March 2008, and the
Chairman of the House Education and Labor Committee issued a memorandum reviewing the
committee’s investigation of the Crandall Canyon Mine incident in May 2008, MSHA released its
accident report on July 24, 2008. Like the University of Utah’s
Seismological Report on the 6 Aug
2007 Crandall Canyon Mine Collapse in Utah, issued in August 2007, MSHA concluded that the
seismic activity associated with the mine collapse was not due to a naturally occurring
earthquake. Rather,
The extensive pillar failure and subsequent inundation of the section by oxygen-deficient air
occurred [on August 6] because of inadequacies in the mine design, faulty pillar recovery
methods, and failure to adequately revise mining plans following coal burst accidents [about
which MSHA was not notified] within 15 minutes as required by 30 CFR 50.10. [This failure
on the operator’s part] denied MSHA the opportunity to investigate these accidents and
ensure corrective actions were taken before mining resumed in the affected area.28
The August 16 accident occurred because rescue of the entrapped miners required removal of
compacted coal debris from an entry affected by the August 6 accident. Entry clean-up
reduced confining pressure on the failed pillars and increased the potential for additional
bursts. Methods for installing ground control systems required rescue workers to travel near
25 Federal Mine Safety and Review Commission, “Simplified Proceedings, notice of proposed rulemaking,” 75
Federal
Register 28223, May 20, 2010.
26 http://www.oig.dol.gov/public/reports/oa/2010/05-10-004-06-001.pdf.
27 Gayle Cinquegrani, “MSHA Chief Main Responds to OIG Report Citing Flaws in Pattern of Violations Program,”
Daily Labor Report, July 1, 2010.
28 MSHA,
Report of Investigation: Fatal Underground Coal Burst Accidents, August 6 and 16, 2007, Crandall Canyon
Mine, July 24, 2008, p. 2 and 3, available at http://www.msha.gov/Fatals/2007/CrandallCanyon/
CrandallCanyonreport.asp. (Hereafter cited as MSHA,
Report of Investigation.)
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areas with high burst potential.... On August 16, the coal burst intensity exceeded the
capacity of the support system.29
In addition to failing to provide MSHA the requisite notification of prior bursts, the mine operator
(Genwal Resources Inc., GRI) conducted bottom and barrier mining that were not included in the
approved roof control plan and that intensified stress on the pillars. GRI also mined in an area that
was not part of the approved roof control plan, according to MSHA’s report, thereby making
conditions more unstable. Further, GRI did not propose revisions to the roof control plan that
were sufficient to control bursts. MSHA levied a fine of $1,340,000 for multiple violations (30
CFR 50.10, 30 CFR 75.203(a), 30 CFR 75.220(a)(1), 30 CFR 75.223(a)) that directly contributed
to the fatalities that occurred at Crandall Canyon Mine on August 6, 2007. In connection with 11
other noncontributory violations found during the agency’s investigation, it proposed an
additional penalty of $296,664. The total penalties proposed by MSHA against the mine operator
amounted to $1,636,664.30
MSHA faulted engineering analyses performed by Agapito Associates, Inc. (AAI) for the mine
operator. It issued one enforcement action to AAI for “inaccurately evaluat[ing] the conditions
and events at the mine when determining if areas were safe for mining,” which “directly
contributed to the death of nine people.”31 MSHA fined AAI $220,000 for violating 30 CFR
75.203(a).
Since 1989, MSHA has carried out internal reviews of its actions after accidents involving at least
three fatalities. Because the Assistant Secretary for MSHA and the Administrator for Coal Mine
Safety and Health were directly involved during the Crandall Canyon Mine accident and rescue,
however, the Secretary of Labor appointed an Independent Review Team (IRT). The IRT’s report
found many deficiencies on the part of MSHA before the accident, during the rescue operation,
and in other areas. For example, the IRT concluded that MSHA, in approving the roof control
plan and amendments, did not fulfill its responsibility to ensure they were sufficiently protective
of the safety of miners; failed to comply with the MINER act’s provisions that it be the primary
source of communication with the families of trapped miners, the media, and the public; and “The
Agency’s increased focus on compliance assistance and special emphasis activities may have
impacted its ability to complete required inspections as mandated by the 1977 Mine Act.”32
MSHA took measures to address some deficiencies noted in the IRT report. The agency, for
example, issued a letter to mine operators requesting that detailed information be included in their
submittals for approval of complex and/or non-typical roof control plans; sent memoranda,
instructions, and checklists to district personnel about approval of complex/non-typical roof
control plans and reviews, and about implementation of a standardized roof control plan approval
and review process; issued a procedure instruction letter to district personnel on use of technical
support assistance during review of roof control plans; and sent a memo requiring that sections in
which retreat mining is occurring be inspected at least monthly.33
29 Ibid., p. 4.
30 MSHA, “MSHA Levies $1.85 Million in Fines for Crandall Canyon Mine Disaster,”
News Release, July 24, 2008,
available at http://www.msha.gov/MEDIA/PRESS/2008/NR080724.asp.
31 MSHA,
Report of Investigation, p. 176.
32 Earnest C. Teaster Jr. and Joseph W. Pavlovich,
Independent Review of MSHA’s Actions at Crandall Canyon Mine,
July 21, 2008, p. 5, available at http://www.msha.gov/CCreview/CrandallCanyonIR.asp.
33 MSHA,
Crandall Canyon Accident Investigation: Summary and Conclusions, available at http://www.msha.gov/
(continued...)
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Legislative Activity
110th Congress
The Supplemental Mine Improvement and New Emergency Response Act
At the time of the MINER act’s passage, some Members characterized the law as only a first step
that would be followed by more measures. In January 2008, the House passed the Supplemental
Mine Improvement and New Emergency Response Act (S-MINER, H.R. 2768) which
incorporated language from the Miner Health Enhancement Act (H.R. 2769).
On the health front, the bill would have required NIOSH to transmit to MSHA its recommended
exposure limits (RELs) for chemicals and other substances hazardous to miners. MSHA would
then have up to 30 days from receipt of the RELs to adopt them as permissible exposure limits
(PELs). In addition, NIOSH would have had to submit each year new or revised RELs, and DOL
would have had to adopt them within 30 days as PELs.34 H.R. 2768 also would have required
mine operators to adopt NIOSH’s RELs of 1 milligram of respirable coal dust and 0.05
milligrams of respirable silica dust per cubic meter of air. To ensure that the coal dust standard
was being met, MSHA and mine operators would have sampled the amount of dust in the mine
atmosphere using personal dust monitors that provide real-time information to the miners
equipped with the devices.
In light of the use of retreat mining in the 2007 Crandall Canyon tragedy, the bill contained
provisions that address the practice.35 For example, mine operators would have been required to
have a current pillar extraction or barrier reduction plan approved by MSHA before performing
such activities, and the Secretary would have established a special internal review process for
plans involving miners working at depths of more than 1,500 feet. The National Academy of
Sciences (NAS), in consultation with NIOSH, would have been required to make
recommendations about ways to better protect miners during retreat mining and when working at
great depths. Section 4 also would have required the NAS to report on ways to protect miners
from the risk of lightning strikes near mines, a factor at Sago.
On the issue of enforcement authority at mines in POV status, the bill would have had penalties
assessed beyond those already authorized and all workers withdrawn from a mine. It also would
have raised the amount of some currently authorized penalties and established a procedure for
dealing with operators who fail to pay final assessments. The Secretary would have been required
to establish an advisory committee to recommend whether the government should license mines,
their operators, and related personnel.
(...continued)
Genwal/ccSummary.asp and the agency’s response to the IRT report available at http://www.msha.gov/CCreview/
MSHAResponsetoCCIR.pdf.
34 The Secretary of Labor would have been allowed to review the feasibility of a PEL before it was put into effect if
mine operators or miners provided evidence that feasibility might be an issue. If operators or miners provided evidence
that an REL issued by NIOSH lacked the specificity needed to serve as a PEL, the Secretary could have deferred
implementation until NIOSH recommended a more detailed REL.
35 When an underground area has been mined of its coal, the coal pillars that have been holding up that area of the
mine’s roof are pulled to obtain their coal in the opposite direction from which mining originally occurred.
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Coal Mine Safety and Health
On the issue of rescue, recovery, and incident investigating authority, S-MINER included a
requirement that a communications emergency call center be created for coal and other mine
operations, staffed and operated 24 hours a day 7 days a week by at least one employee of
MSHA. Guidelines for rescue operations also would have had to be developed and disseminated;
the guidelines would have delineated lines of authority within MSHA and between the agency,
the private sector and state responders.
In addition to MSHA conducting all accident and incident investigations, the bill authorized an
independent investigation for incidents involving multiple injuries or deaths, or multiple
entrapments. NIOSH would have appointed team members. The bill would not have had these
investigations limit the investigative authority of the Chemical Safety and Hazard Investigations
Board or the department’s inspector general.36
Section 7 of the MINER act concerning family liaisons would have been replaced by a
requirement that the Secretary designate a full-time permanent employee of MSHA to serve as a
family liaison. The designee would, at least in incidents involving multiple miners, serve as the
primary communicator with the families of those miners.
H.R. 2768, as amended, would have established a mine safety program fund. Into this account in
the Treasury would be deposited mine safety civil penalties and private donations. Sums in the
account would have been available for mine safety inspections and investigations only.
President Bush opposed the bill. In a statement of Administration policy issued when the House
was preparing to vote on H.R. 2768, the Office of Management and Budget (OMB) stated that the
provision requiring MSHA to adopt NIOSH’s voluntary RELs as mandatory PELs “would
mandate the adoption of potentially hundreds of PELs without any input from stakeholders and
without [prior] determination of whether the PEL is economically and technologically feasible.”
The OMB further said that by allowing entities in addition to MSHA to investigate certain
accidents, S-MINER would
undermine the government’s ability to hold accountable mine operators who violate mine
safety and health regulations since multiple investigations potentially using different
methodologies and reaching different conclusions could prejudice the government’s ability
to prosecute civil or criminal violations of mine safety and health standards that contributed
to, or exacerbated, an accident.
The Mine Communications Technology Innovation Act
The House passed the Mine Communications Technology Innovation Act (H.R. 3877/S. 2263) on
October 29, 2007. H.R. 3877 would have had the Director of the National Institute of Standards
and Technology (NIST) establish a research, development and demonstration program to develop
best practices, adapt existing technology, and accelerate development of next generation
technology and tracking systems for mine communications. The Department of Commerce’s
NIST also would have coordinated with industry and relevant federal agencies to develop
consensus standards for communications in underground mines.37
36 The Chemical Safety and Hazard Investigations Board is an independent agency of the federal government that,
among other things, investigates and identifies the causes of chemical accidents.
37 Section 6 of the MINER act created within NIOSH an Office of Mine Safety and Health “to enhance the
(continued...)
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111th Congress
On June 30, 2010, Representatives Miller, Woolsey, and Rahall as well as Senators Harkin,
Murray, and Rockefeller released
Proposed Legislative Changes to Protect the Safety of all
Workers and Prevent Future Disasters.38 A discussion draft of worker safety and health legislation
was posted on the Education and Labor Committee’s website the same day.39 It was met with
consternation by some members of the Committee on Health, Education, Labor and Pensions.40
On July 1, 2010, the Mine Safety and Health Act of 2010 (H.R. 5663) was introduced. The
Committee on Education and Labor held a hearing on the bill on July 13.
Among other perceived mine safety and health issues, the bill addresses those that arose from the
UBB mine incident and earlier accidents at underground coal mines by
• requiring an independent investigation of accidents involving at least three
fatalities or as determined by the Secretary of Health and Human Services;
• defining in statute significant and substantial (S&S) violations;
• changing the POV criteria to include such things as citations for S&S and other
specified violations in excess of thresholds established in regulation by the
Secretary of Labor;
• for a coal or other mine in POV status, issuing an order requiring the operator to
withdraw all persons from the mine, doubling the number of mandated annual
inspections, and collecting from mines in POV status fees to establish a Mines in
Pattern Status Inspection Fund;
• strengthening whistleblower protections; and
• promulgating regulations requiring underground coal mine operators to install
atmospheric monitoring systems that provide real-time readings of methane and
carbon monoxide levels.
The bill also aims to make the Mine act’s penalty provisions serve as stronger deterrents to unsafe
conditions in mines. H.R. 5663 raises the maximum penalty for S&S violations to $150,000 for
(...continued)
development of new mine safety technology and technological applications and to expedite the commercial availability
and implementation of such technology in mining environments.” The statute stated that the NIOSH office is
“responsible for research, development, and testing of new technologies and equipment designed to enhance mine
safety and health,” and to carry out this responsibility it has the authority to award grants to encourage the development
and manufacture of mine safety equipment and to award contracts to perform product testing. Separately, the
Emergency Supplemental Appropriations Act of 2006 (P.L. 109-234) awarded $10 million to NIOSH to target research
into safety technologies specifically related to communications and tracking, among other things, that would be
available for use in mines within 24-36 months.
NIOSH organized a Mine Emergency Communications Partnership “to facilitate the development, evaluation, and
implementation of” post-accident communication and tracking technologies. The partnership includes mining
associations, unions, state and federal regulatory agencies, equipment manufacturers, and researchers. (For additional
information, see http://www.cdc.gov/niosh/mining/mineract/mineemergencycommunicationspartnership.htm.)
38 http://edlabor.house.gov/documents/111/pdf/publications/20100629MinerSafetyActFivePageOverview.pdf.
39 http://edlabor.house.gov/documents/111/pdf/legislation/MineSafety2010.pdf.
40 http://help.senate.gov/newsroom/press/release/?id=65064aff-1d7d-4665-905d-de50e4540896&groups=Ranking.
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each violation. For mines in POV status that fail to meet performance benchmarks established by
the Secretary, the bill doubles the civil penalty for violations of the act found during performance
reviews. It also increases criminal penalties (to between $1,000,000 and $2,000,000) and length
of imprisonment (to between 5 and 10 years) for operators who knowingly violate or fail to
comply with orders issued under the act, and makes subject to the same penalties and
imprisonment any director, officer, or agent who knowingly authorized or carried out such
violation or failure. In addition, persons who retaliate against whistleblowers or who give
advance notice of mine inspections could be fined and/or imprisoned under the bill. And, interest
would accrue starting when operators contest a citation and 30 days after a final order of the
FMSHRC or court is issued; withdrawal orders could be issued for failure to pay civil penalty
assessments that have become final orders.
Additionally, H.R. 5663 would amend the Occupational Safety and Health Act by including
portions of the Protecting America’s Workers Act (H.R. 2067, S. 1580). The bill would, among
other things, strengthen whistleblower protections; require employers to correct serious, willful,
or repeated violations while contesting citations; raise civil penalties; increase the amount of the
penalty if a willful or repeated violation causes or contributes to the death of an employee; and
adjust penalties for inflation. Employers who knowingly violate standards, rules, or orders
promulgated under section 6 of the act or regulations prescribed under the act, and the violation
causes or contributes to an employee’s death, shall upon conviction be fined, imprisoned for 10
years at most (20 years if not a first conviction), or both; and employers who knowingly violate
standards, rules, or orders promulgated under section 6 of the act or regulations prescribed under
the act, and the violation causes or contributes to serious bodily harm but not the death of an
employee, shall upon conviction be fined, imprisoned for five years at most (10 years if not a first
conviction), or both.
Author Contact Information
Linda Levine
Specialist in Labor Economics
llevine@crs.loc.gov, 7-7756
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