February 18, 2014 Denver Colorado - PowerPoint Presentation

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February 18, 2014

Denver Colorado

MSHA Update Enforcement Initiatives and New Rules

Denver Coal Club

Scot AndersonLiz TitusSlide2

MSHA RulemakingRefuge Alternatives for Underground Coal MinesRequest for Information (August 8, 2013)Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors Proposed Rule (October 19,

2010)Proximity Detection Rule in the works2Slide3

Underground Coal Mine RefugeRequest for Information Published August 8, 2013MINER Act (2006) amended Mine Act to include requirement that coal mines prepare an Emergency Response Plan (ERP).Also includes NIOSH study of refuge chambers.MSHA publishes final rule in 2008 requiring refuge alternatives for underground coal mines.Remanded by DC Circuit Court of Appeals – no adequate basis for holding hands-on training only once a year rather than quarterly

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The Information RequestMiner Training on Refuge AlternativesIn Place SheltersEscape MethodologyReplacement of Brass FittingsTesting and ApprovalApparent TemperaturePhysiological and Psychological Factors

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Respirable DustProposed Rule published October 19, 2010The politicsBill proposed in House Appropriations committee to prevent funding for the proposed rule

George Miller (D-CA) – black lung is on the rise again due to ineffective regulationNMA: isolated areas with increase incidence of black lungAbnormal White Centers and the “addiction to cheating”5Slide6

“End Black Lung – Act Now” program (2009)Four Elementsrulemaking enhanced enforcementcollaborative outreacheducation and training.

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Proposed Rule (October 19, 2010)7Lower the existing concentration limits for respirable coal mine dust

from 2.0 milligrams of dust per cubic meter of air (mg/m³) to 1.0 mg/m³ over a 24-month phase-in period. For intake air at underground mines and for Part 90 miners (coal miners who have evidence of the development of pneumoconiosis) from 1.0 mg/m³ to 0.5 mg/m³ six months after the effective date of the final rule.Establishes a weekly exposure limit when a continuous personal dust monitor (CPDM) is used for sampling occupations on the MMU and for Part 90 miners. Slide8

Proposed Rule (October 19, 2010)Require the use of the continuous personal dust monitor (CPDM). Over a 12- to 18-month period, phase in the use of the CPDM that provides a direct, real-time display of respirable coal mine dust concentrations. Operators would use CPDMs to continuously monitor underground coal miners in occupations exposed to the highest dust concentrations and Part 90 miners.

CPDMs would be optional at surface coal mines and for non-production areas of underground coal mines (such as outby areas). The CPDM would electronically store all respirable dust sampling data collected during the shift; this data would be sent electronically to MSHA. 8Slide9

Proposed Rule (October 19, 2010)Provide for the use of a single, full-shift sample to determine compliance. Single, full-shift samples, collected by MSHA or the mine operator, would be used to determine noncompliance with respirable dust standards.Currently, multiple dust samples of different miners’ exposures are averaged.

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Proposed Rule (October 19, 2010)Require respirable dust sampling for the full shift a miner works, rather than a maximum of 8 hours. Change the existing definition of “normal production shift” to require sampling at a production rate that is more representative of normal mining operations. Currently, the production level required for a valid dust sample is 50 percent of the average production, which results in

respirable dust during sampling at levels far lower than those miners are normally exposed to. The proposal would require sampling when production is at least the average production over the last 30 production shifts. Expand medical surveillance to add spirometry testing, occupational history, and symptom assessment to the chest x-ray examinations already required for underground coal miners and extend medical surveillance to surface coal miners.

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Industry Concerns with the Proposed RuleA solution in search of a problemNIOSH Coal Workers Health Surveillance Program Not a representative selectionCPDM Inaccuracies and UnreliabilityErgonomics/Industrial Hygiene

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Calculating ExposureMSHA wants real time monitoring to reduce exposure in excess of the standardMSHA example: Currently, multiple dust samples of different miners’ exposures are averaged, with some samples indicating that miners are exposed to unhealthy dust levels far above the current 2.0 mg/m3 standard. For example, under the existing standard, five measurements of: 3.4, 2.7, 2.6, .7, and .5 would result in an average of 1.98, which meets the 2.0 mg/m3 standard, although 3 individual measurements exceed the standard.

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Industry Concerns on Exposure CalculationContinuous Monitoring creates 36 times more samples; increases likelihood of an outlier.Outliers drive up averages.Therefore, the mean value must be very low to compensate for the risk of an unusually high sample.One comment on the rule calculates that an operator would need to keep the mean value at the longwall tailgate at 0.14 mg/m3 to achieve 95% compliance.

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Enforcement UpdateUpper Big Branch Mine-South Corrective Action Plan – Three New Public Policy Letters Pattern of Violations RuleMSHA v. Wolf Run Mining Co.14Slide15

Upper Big Branch Mine-South Corrective Action PlanProgram Policy Letter P13-V-03 re Maintenance of Cutting Bit on Continuous Miners and LongwallsMakes clear that “cutting coal or rock with continuous mining machines or longwall shearers with damaged or missing cutting bits is a violation of 30 C.F.R

. § 75.1725(a).”15Slide16

Program Policy Letter P13-V-03Section 75.1725(a) provides “Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.”“This policy is designed to prevent the ignition of methane caused by damaged, worn, or missing cutting bits, and thereby prevent the accidents and injuries that can result.”

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Upper Big Branch Mine-South Corrective Action PlanProgram Policy Letter P13-V-11 re Program for Regular Cleanup and Removal of Accumulations of Coal and Float Coal Dust, Loose Coal, and Other CombustiblesMSHA’s cleanup program standard at 30 CFR § 75.400-2 requires mine operators to

written clean up program for regular cleanup and removal of accumulations of coal and float coal dust, loose coal, and other combustibles.17Slide18

Program Policy Letter P13-V-11Clean up program must include the following elements:The regular cleanup methods for the removal of accumulations of coal and float coal dusts, loose coal, and other combustibles in all active workings or on diesel-powered and electrical equipment, The equipment and methods used for applying rock dust to maintain 80% Total Incombustible Content (TIC) as required by § 75.403 and the methods to continuously apply rock dust to areas where coal dust is generated and float coal dust accumulates; and The means to evaluate the effectiveness of their cleanup program, such as review of

preshift examination records, rock dust usage, rock dust sampling results, and compliance history. Mine operators should place emphasis on critical areas such as longwall tailgates, belt transfer points, section returns, and bleeder entries.18Slide19

Upper Big Branch Mine-South Corrective Action PlanProgram Policy Letter P13-V-12 re Examination, Evaluation, and Effectiveness of Bleeder SystemsProvides guidance regarding description of bleeder system in ventilation plan.Bleeder system are used to control the air passing through

a pillared area and to continuously dilute and move methane-air mixtures and other gases, dusts, and fumes from the worked-out area away from active workings and into a return air course or to the surface of the mine. A bleeder system includes the area from which pillars are wholly or partially recovered, bleeder entries, bleeder connectors, and all associated ventilation control devices that control the air movement through the area. 19Slide20

Program Policy Letter P13-V-12District Managers would not suggest changes to the relevant portions of existing approved ventilation plans.MSHA anticipates that a ventilation plan will include:description of the full extent of the worked-out area intended to be ventilated by the bleeder systemidentification

of bleeder entries (including rooms surrounding the pillared area) intended to be examinedApproved examination locations for methane, gases, dusts and fumesAirflow direction at examination location and bleeder entries should be demonstrated on a map or diagram20Slide21

Pattern of Violations RuleEliminates initial screening and the potential POV (PPOV) process. Eliminates the existing requirement that MSHA can consider only final orders in its POV review. Establishes two sets of

general criteria and procedures that MSHA will use to identify mines with a pattern of S&S violations. 21Slide22

Pattern of Violations Rule – Criteria 1MSHA generates a report to determine if a Pattern of Violations exist within the preceding 12 months50 citation/orders for S&S violations 8 or more S&S violations per 100 inspection hours, or

the degree of negligence of “high” or “reckless disregard” for 25% of the S&S violationsAt least 0.5 “elevated” citations/orders (i.e. issued under sections 104(b); 104(d);104(g); or 107(a) of the Mine Act) issued per 100 inspection hours

An Injury Severity Measure (SM) for the mine that is greater than the overall Industry SM for all mines in the same mine type and classification (number of lost work days per 200,000 employee hours)

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Pattern of Violations Rule – Criteria 2At least 100 S&S citations/orders issued in the most recent 12 months.At least 40 elevated citations and orders [issued under section 104(b); 104(d);104(g); or 107(a) of the Mine Act] issued

during the most recent 12 months. 23Slide24

Pattern of Violations - EnforcementOn Oct. 24, 2013, MSHA issued the first three POV notices under its revised ruleA forth POV notice was issued in November of 2013.Down trend from PPOVs issued in 2012 (6), 2011(14) and 2010 (13)

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RecommendationsRequest conferences of S&S citations and those with “high” degrees of negligence Conference may be only opportunity to reduce feesConsider contesting S&S citations and those with “high” degrees of negligence – may not result in fee reduction

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RecommendationsBe mindful of Dodd-Frank Requirementsthe total number of violations of mandatory health or safety standards that could contribute to a mine safety or health hazard and for which the operator received a citation from MSHA,the total number of orders and citations issued under MSHA,

The total number of flagrant violations and imminent danger orders issued under MSHA,the total dollar value of proposed assessments from MSHA and the total number of mining-related fatalities;A list of mines, of which the reporting company or a subsidiary is the operator, that receive written notice from MSHA of a pattern of violations, or a potential for a pattern of violations, of mandatory health or safety standards that could contribute to certain health and safety hazards; andAny pending legal action before the Federal Mine Safety and Health Review Commission involving a mine operated by the reporting company or a subsidiary of the reporting company.

Pattern of Violation findings or imminent danger orders26Slide27

MSHA v. Wolf Run Mining Co. – Sago MineOn December 23, 2013, the FMSHRC reversed the ALJ’s reduction of the negligence finding (from high to moderate) for failing to immediately report the explosion at the Sago Mine and vacated the unwarrantable failure designation associated with the emergency control plan.Explosion occurred at 6:26 a.m.

Lighting Strike on the surfaceAt 6:32 a call describing airflow changeAt 6:36 another call stating that “we had a mine explosion or something here.”Mine personnel went underground to investigate and assist in the evacuation of miners.At 7:20 request to inform authoritiesNo attempt to notify MSHA until 7:5030 C.F.R. 50.10 requires immediate notification within 15 mins.

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MSHA v. Wolf Run Mining Co. – Sago MineMSHA cited Wolf Run with violation of:Sec. 50.10 (High Negligence)Sec. 75.1502(a) (High Negligence, S&S and Unwarrantable Failure)ALJ – Reduced negligence to Moderate, vacated the Unwarrantable Failure, reduced penalties by $2,500.

Held that duty to notify did not occur until 7:23Stated that delay was motivated by desire to evacuate survivorsNoted that accident occurred on federal holiday. 28Slide29

MSHA v. Wolf Run Mining Co. – Sago MineCommission reversed the ALJ (2-1)Although an operator should be afforded a reasonable opportunity to investigate, once it is determined that a reportable accident has occurred, an operator must act immediately to report the incident. Imposes a constructive knowledge standard generally used for a finding of negligence (should have known vs. actual knowledge)

Cites intentional delay in contacting the mine rescue team, in favor of attempting its own rescue.“The operator's intention to assist underground personnel during this emergency, while admirable, is exactly the type of conduct that the Mine Act and the Secretary's regulations are intended to address and avoid.”29Slide30

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