-

I Wriw'
State of 'West
Earl Ray Tomblin, Governor

WV Office of Miners' Health, Safety Training
Eugene White, Director
#7 Players Club Rd., Suite 2 - Charleston, West Virginia - 25311-1626
Telephone 304-558-1425 - Fax 304-558-1282

mM 

REPORT TO
THE LEGISLATURE AND GOVENOR
AS REQUIRED BY WEST VIRGINIA
CODE 

COAL MINE SAFETY REPORT

PREPARED BY WEST VIRGINIA UNIVERSITY LAW INSTITUTE

- Region One - 14 Commerce Dr. Ste 1 - Westover, West Virginia 26501 - Telephone 304-285-3268 - Fax 304-285-3275
- Region Two - 891 Stewart St. - Welch, West Virginia 24801-2311 - Telephone 304-436-8421 - Fax 304-436-2100
- Region Three - 137 Peach Court, Suite 2 - Danville, West Virginia 25053 - Telephone 304-3 69-7823 - Fax 304-369-7826
- Region Four - 550 Industrial Dr. - Oak Hill, West Virginia 25901-9714 - Telephone 304-469-8100 - Fax 304-469-4059

II.

Miners Safety Report

December 31, 2013
TABLE OF CONTENTS

INTRODUCTION AND EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ENFORCEMENT BY THE OFFICE OF HEALTH, SAFETY AND
TRAININGInspectors and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Increase the salaries and number of inspectors . . . . . . . . . . . . . . . . . . . . . . 3

Z. Enhance the qualifications and duties of mine inspectors . . . . . . . . . . . . . . 4

Need for initial and annual training, including specialized training
Need for specialized duties to ensure each mine inspector conducts
his or her specific job

3. Provide mine inspectors with the authority to order the abatement of
hazards that are not expressly identified Provide for impact or targeted inspections for problems mines and areas. 7
5. Review mine inspection priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Randomize the procedures by which regular inspections are conducted. . 8
7. Revise Provisions on Removal of Inspectors . . . . . . . . . . . . . . . . . . . . . . . . 9
Implementation and Penalty Provisions . . . . . . . . . . . . . . . . . . . Improve fines and sanctions provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Adjust penalties provisions
Enhance pattern of violations provision
2. Clarify decertification penalties for coal miners, foremen, and others and
coordinate decertification with other states . . . . . . . . . . . . . . . . . . . . . . . . 13
Clarify decertification
Coordinate decertification with other states
3. Strengthen subpoena power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14



IV.



4. Modify Accident Investigation Procedures . . . . . . . . . . . . . . . . . . . . . . . . 15

5. Create corporate director, officer, and agent liabilityStrengthen Anti-Retaliation Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
C. Performance StandardsRevise the drug and alcohol testing and enforcement provisionsRevise Rock Dusting Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3. Eliminate remaining references to "flame safety 1ampsStudy Extended Cut Mining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
D. Board of Coal Mine Health and Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. . . .- 22
Revise the composition and procedures of the Board of Coal Mine Health and
Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

E. SummaryCOAL MINERS LUNG DISEASES AND AIR QUALITY REGULATION . . . . . . . . . . 24

A. IntroductionProtectMiners with Lung Disease from Discrimination . . . . . . . . . . . . . . . . . . . . 27

C. Address Monitoring of the Workplace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Improve Monitoring of MinersEducate Miners about Lung Disease Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Improve Data CollectionSummaryTECHNOLOGYEducate about and Encourage the Use of New TechnologyRequire Proximity Monitors and Cameras . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

C. Require Use of Coal Dust Explosibility Meters . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

D. Encourage Virtual and Interactive Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

V. TRAINING AND CERTIFICATION . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 37

A. Improve Preemployment Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-- . . . . . . . . 37

Revise Apprenticeships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Enhance Continuing TrainingEnhance Equipment Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

E. Require Certification of Mine Superintendents . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

GLOSSARY OF ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
APPENDICES

Appendix A -- Harisha Kinilakodi, Robert Larry Grayson, Samuel A. Oyewole,
Evaluating Equivalence of the Safe Performance Index (SP1) to a Traditional Risk
Analysis, 2 OPEN J. OF SAFETY SCI. TECH. 47 (2012), and Harisha Kinilakodi R.
Larry Grayson, A Methodology for Assessing Underground Coal Mines for High Safety-
Related Risk, 49 SAFETY SCIENCE 906 (2011).

Appendix -- A Draft Statute for Provision of .Mine Accident Inspection Teams.

Appendix -- Rock Dusting: A Jurisdictional Survey.

Appendix -- Recommendations and Findings of the Governor's Independent
Investigation Panel on the Upper Big Branch Explosion (May, 2011).

I. INTRODUCTION AND EXECUTIVE SUMMARY
In response to the explosion and the deaths of 29 miners at the Upper Big Branch Mine
in 2010, the Legislature in 2012 enacted a major mine safety law to deal with some

pressing issues in our mine safety code. H.B. 4351 (2012). The Act also ordered the Director of

I the Office of Miners' Health, Safety and Training to submit to the Legislature by December 3-1,

2013, a report on needed revisions in mine health and safety enforcement. That provision, which
was codified as West Virginia Code 22A-12-1, reads:
The director shall, by December 31, 2013, report to the Legislature and Governor on
the need for revisions in the state's underground mine safety enforcement procedures.
The director shall initiate the study using appropriate academic resources and mining
safety organizations to conduct a program review of state enforcement procedures
to evaluate what reforms will assure that mining operations follow state mandated
safety protocols. The report shall include recommended legislation, rules and
policies, consider various options for improving inspections, accountability and
equitable and timely administrative procedures that cause remediation of hazardous
working conditions.
This report fulfills the directive made in 22A--12-1.
West Virginia has repeatedly had the highest coal mine fatality and accident totals in the
country.' The State must correct that. If West Virginia wants safe mines and healthy miners, it must

create a culture of safety. Other states have managed to do so, and individual companies have

MSHA, Coat Mining Fatalities by State by Caiendar Year, available at:
According to MSHA, between 2002 and 2013, West Virginia
had 129 coal mine fatalities; the next highest numbers were Kentucky with 87 and Alabama with 24. Id. For
thorough data on injuries, see MSHA's data at: 

1

accomplished it.2 What is needed is commitment to the goal, and that commitment must start with
legislative commitment of the resources needed to communicate that the State is serious about
creating and enforcing a system of mine safety. At present, there are deficiencies in safety
enforcement directly traceable to a shortfall of state investment. That must change. Revenues are
needed to establish an effective state mine safety regime and to convince all (not just some) coal
operators and miners that safety comes first.

The Table of Contents, above, lists the recommendations made in this report, and summaries
at the end of Parts 11 and 1H also provide condensed lists. The most prominent features of this report
can be readily identified. One would be the already-mentioned commitment of resources, especially
to the Office of Miners' Health, Safety and Training for enhanced inspectors' pay (see Section II-A-
1, infra), research II--C--4 and and training (Part V). Other particularly important
recommendations include emphasizing enforcement efforts using impact inspections II-A-4) and
focusing on operators with patterns of violations revising rock dusting regulations 11-
C-2), revamping the composition and procedures of the Board of Coal Mine Health and Safety 
II-D), adopting all of the suggestions in Part that address the adverse consequences of the recent
increases in miners' lung diseases, and requiring the use of proximity monitors or cameras on
equipment and of coal dust explosibility meters IV -B and -C). As directed by the authorizing
statute, the report recommends changes in legislation, rules and policies, considers

options for improving inspections and accountability, and addresses improved procedures. Some

2Consolidation Coal Company, for example, has been widely cited as maintaining an effective and

disciplined commitment to safety. Such was not always the case with Consol. See, e.g. Rodriguez v. Consolidation
Coal Company, 206 317, 534 672 (1999); United Mine Workers, D1'strict 31 v. Consolidation Coal
Co., Monongalia Circuit Court, Civ. Action No. 88-C-391 (enjoining company's "Safety Approach Program," which
provided for progressive discipline for work injuries, as being in violation of mine safety and workers' compensation
laws); BONNIE E. STEWART, No. 9: THE 1968 FARMINGTON MINE DISASTER (W.V.U. Press 201 1).

2

of the recommended changes require new legislation while others can be handled administratively.
The Office of Coal Miners' Health, Safety and Training has already implemented or is in the process
of implementing many of the suggestions.

II. ENFORCEMENT BY THE OFFICE OF HEALTH, SAFETY AND
TRAINING

A. INSPECTORS AND INSPECTIONS
1. Increase the salaries and number of inspectors

Ensuring coal mine safety in West Virginia requires competent and qualified mine inspectors
within the Office of Miners' Health, Safety and Training or "the Office"). Because of
competitive wages being offered by mine operators and the federal Mine Safety and Health
Administration the low level of salaries currently paid by the State has made it difficult
for the Office to find and retain qualified inspectors. Retention has been particularly problematic,
as turnover among the inspector corps has been high. Increasing the number and salaries of surface
and underground mine inspectors employed by the OMHST will enhance mine safety within West
Virginia.

As of -the date of this report, the minimum annual salary for surface mineinspectors is
$53,904 and for underground mine inspectors the minimum is $54,804. Those compare to West
Virginia coal miners' average 2012 income of $84,750'' and MSHA inspector salaries that approach
$75,000." West Virginia Code 22A-l-9, -l -12, -13, and -24, authorize the Director of the

OMHST to set the minimum salaries paid to surface and underground mine inspectors. The

3National Mining Association, "Annual Coal Mining Wages v. All Industries, 2012," available at:


Department of Labor at obsearch.

3

OMHST has the authority to employ as' many surface and underground mine inspectors as the
Director determines to be "reasonably necessary in fully and effectively carrying out the applicable
provisions" of the West Virginia regulations. W. Va. Code 22A-1-12 and -13. While the
statutory authority has been provided to the Director to set competitive salaries and hire a sufficient
numbers of inspectors to do the work necessary to ensure safe mining, the funding to do so has not
been provided. Funding should be allocated to permit the OMHST to increase mine inspectors'
salaries to a level that would enable it to be competitive in hiring and retaining qualified inspectors
and to permit the agency to increase the number of inspectors to a level believed by the Director to
be adequate to meet the need. The agency needs a sufficient number of inspectors not only to
perform the statutorily required four inspections per year at each mine, W. Va. Code 22A-1-14,
but also to target particular mines that have troubling safety records. The increase in the number
of inspectors is needed to inspect the problem mines more frequently and to subject them to the
"impact inspections" that are discussed below.
Z. Enhance the training and clarify the duties of mine inspectors
Need for initial and annual training, including speciaiized training
Unlike certified coal miners, who are required to undergo initial and annual training, mine
inspectors are merely required to pass an initial examination and meet experience requirements. W.
Va. Code 22A-l-12. To ensure that mine inspectors are up to date on mine safety regulations and
any other information the OMHST deems pertinent to their duties as mine inspectors, initial and

continual training should be mandated for all mine inspectors. To be sure, the OMHST has on its

own _recently implemented an ambitious education program for its inspectors that has included, 

among other things, ventilation instruction, a first aid/first response course, roof control meetings,

an accident investigation course, violations instruction, and, for new inspectors, creation of a

4

training manual and a mentors program. The educational program, however, needs to be codified
to ensure that future administrations are similarly enlightened.

The initial training should include instruction on the duties of mine inspectors, on particular
problems that inspectors are likely to encounter, on the pertinent health and safety provisions, and
other information that the OMHST deems useful. Providing mine inspectors with initial training will
give them some guidance on what is expected of them as inspectors and will result in a more
efficient process of conducting inspections and identifying violations. Familiarity with the Code
gained through the initial instruction will better facilitate enforcement and reduce inspector errors.

In addition to initial training, mine inspectors should be required to receive continuing
education. That training should focus on any changes in safety regulations, new mining
technologies, and new safety and health developments (research, techniques, technology, etc.). The
training should also address any specific regulatory issues or safety problems that inspectors or other
OMHST agents have encountered. Some educational program on the order of that which the
Office has recently initiated -- should be mandated. The Director of the OMHST should have broad
discretion in fashioning that program.

The Office should tailor the training to each inspector's specific duties. For example,
electrical inspectors should receive specialized training on their duties that would not necessarily.
be pertinent to what is expected of surface and underground mine inspectors.

The training could be supplemented by investing in easily portable computers or hand-held
devices loaded with electronic files of the relevant code provisions and regulations. The device
could also provide inspectors with the means for storing information gathered during an inspection.

(The Office has recently invested in I-Pads for some of its inspectors and has begun training on their

use. This process could take a while.)

 Need for specialized duties to ensure each mine inspector conducts his or her specific
job 

Although the West Virginia Code does distinguish the qualifications and duties of electrical
inspectors from those of surface and underground mine inspectors, the allocation of responsibilities
should be clarified to enable each individual inspector to perform his or her specific job without the
concern of surface or underground mine inspectors performing electrical duties that they may not
be qualified to perform.

The qualifications of electrical inspectors are set forth in W. Va. Code 22A-1-1 1 and their
duties are stated in 22A-1-l6. The latter should be amended to provide more detailed guidance on
what is required of electrical inspectors and to clarify for mine inspectors what they are not
responsible for. In addition, training for inspectors should include instruction on avoiding risks with
electrical equipment and wiring.

3. Provide mine inspectors with the authority to order the abatement of hazards that are not
expressly identified in the law

The current West Virginia regulations identify a wide range of potential hazards that mine
inspectors may cite operators for violations. Circumstances often arise, however, that are not
expressly covered by regulation yet are hazardous to the safety of coal miners. Safety requires that
these hazards be identified by mine inspectors and corrected by operators, regardless of the express
provisions of the law.

To abate hazards not expressly identified under the law without assigning mine inspectors
unbounded discretion in issuing violations, a "catch-all" provision should be created to authorize
the OMHST, through its inspectors and upon the approval of its Director or Deputy Director, to
issue citations for hazards not expressly covered by statute or regulation and, more importantly, to
order abatement of the hazardous condition. The law cannot anticipate every hazard that can arise,

6

and an inspector in the field needs the authority to order attention to the unanticipated risks. A-ny

citations, of course, would be subject to challenge by the operator and reviewable by the Coal Mine

. Safety Board of Appeals.

4. Provide for impact or targeted inspections of problem mines and areas

The federal Mine Safety and Health Administration has found considerable success in using"

"impact inspections." Those inspections employ a team of inspectors and the element of surprise
to descend upon a targeted mine at any time the week. Officials
immediately secure the mine's communication lines and devices and proceed to conduct a swift but
thorough inspection of the mine. Using impact inspections has enabled MSHA to observe many
unsafe practices that otherwise might have gone undetected. Mines are typically selected _for impact
inspections based upon a data analysis of their past performance, although maintaining the right and
threat to do an impact inspection on any mine can also be effective. Between April 20l0'and July
2013, MSHA conducted 642 impact inspections, which resulted in l0,789 citations, 996 orders, and
45 safeguards. News Release: MSHA announces results of July impact inspections, U.S. Department
of Labor, Office of Public Affairs, Aug. 27, 2013 available at


The OMHST has also used such strategies -- which the Office refers to as "blitz inspections"
-- and found them to be effective. It, however, has not had the resources to do them on the scale that
MSHA has done them. As noted above, more resources are needed for this purpose. An express
statutory provision authorizing the impact inspections would also be helpful; -it would put operators
on notice that such inspections are possible and could prove costly to them if they are not safety
responsible. In addition, explicit statutory authority to seize a mine's communications would be
useful. The OMHST has not yet attempted to control a mine's communications when undertaking

7

an impact inspection, in part because of concerns about the lack of legislative authorization. These
provisions would help to ensure that another disaster like Upper Big Branch does not occur due to
an operator's consistent failures to abide by the pertinent laws and regulations.

Those mines that are most in need of impact inspections should be identified by the OMHST
based "on the history of violations, poor compliance, and accident rates and on particular mine
conditions that present hazards (gassy mines, certain geological conditions, historically bad top,
etc.). See section II-B-1, inflra, on a "pattern of violations" provision. Sophisticated analyses have
been developed to identify high-risk mines. Examples are attached to this report as Appendix A.5
The OMHST should have the discretion and authority to conduct the impact inspections in mines
identified as at-risk mines and to do so in addition to the four inspections per year required by West
Virginia Code 22A--1-14. The Office should also have the discretion to focus particular
inspections on problem areas of a mine. Conducting impact inspections that target problem mines
and problemlareas shifts resources to where they are most needed.

5. Review mine inspection priorities

The OMH ST should be required to review regularly its mine inspection priorities and revise

them, as appropriate-, to ensure that mines that have a history or pattern of violations are inspected

more frequently while still conducting the minimum number of inspections of each mine required
by West Virginia Code 22A--1-14. That would codify what OMHST currently does.

6. Randomize the procedures .by which regular inspections are conducted

5The Appendix reprints Harisha Kinilakodi, Robert Larry Grayson, Samuel A. Oyewole, Evaluating
Equivalence of the Safe Performance Index (SP1) to a Risk Analysis, 2 OPEN J. OF SAFETY SCI. TECH.
47 (2012), and Harisha Kinilakodi R. Larry Grayson, A Methodology for Assessing Underground Coal Mines for
High Safety-Related Risk, 49 SAFETY SCIENCE 906 (201 1).

To enhance the effectiveness of inspections, the OMHST should have the express authority
to develop strategies to randomize the procedures by which regular inspections are conducted,
including conducting inspections at varying hours of the day and days of the week. In addition,
inspections should be conducted by randomly proceeding through different areas of the mine,
especially in those larger mines that require more than one day to inspect. The Office has already
adopted such practices, but an explicit statutory grant would be useful.

The inspection system's effectiveness is enhanced when mine inspectors begin inspections

at unpredictable hours of the day and days of the week, including some weekends and holidays. See

Va. Code 45 .1-161.85 (2011). Implementing a provision similar to Virginia's would help to

prevent evasion of the law by unsafe (or even conscientious) operators. Generally, the less
predictable the inspection system is, the more effective it is.
7. Revise provisions on removal of inspectors

West Virginia Code setsforth the grounds and procedures for removal of
mine inspectors. Some of its provisions have constitutional problems. Subsection 5 forfeits the
position of any inspector who refuses to answer any question under oath because his testimony
might tend to incriminate him or her or who refuses to waive immunity from prosecution. Although
circumstances" could make a difference, such automatic forfeitures would at a minimum raise
questions about their constitutionality under the Fifth Amendment to the United States Constitution
and Article 5 of the West Virginia Constitution. See, e. Slochower v. Board of Education,
350 U.S. 551 (1956). In addition, subsection states that, if the Board removes an inspector,
the Board's decision "is final and is not subject to judicial review." It is highly doubtful that the
Legislature can insulate any administrative adjudicatory decision. from judicial review. See W. Va.
Constitution, Article 3 6 (conferring constitutional certiorari review on, respectively, the

9

Supreme Court and the circuit courts). There is, moreover, no reason_to insulate the Board's
decisions from review. I
The subsection  forfeiture provisions and the subsection 6 attempted bar to judicial review
should be removed.
B. IMPLEMENTATION AND PENALTY PROVISIONS
1. Improve fines and sanctions provisions
Adjust penalties provisions
Two sections of the mine safety code provide for civil penalties. Section 22A-1-21
establishes four categories of sanctions: (1) regular assessments, (2) regular assessments for
knowing violations, (3) special assessments, and (4) individual personal assessments. Regular
assessments are issued to operators who violate a health or safety provision of Chapter 22A of West
Virginia Code or a health or safety rule promulgated pursuant to Chapter 22A of the Code. Regular
assessment penalties are not to exceed $5,000. If, however, the_. operator
"knowingly" violates a code provision or regulation, then the penalty may be up to $5,000 for the
first violation and up to $10,000 for any subsequent knowing violation. Special
assessment violations are issued when the violation is of a serious nature and involves one or more
of the following conditions: (1) violations involving fatalities and serious injuries; (2) failure or
refusal to comply with any order issued under 22A-1-15 of the Code; (3) operation of a-mine in
the face of a closure order; (4) violations involving an imminent danger; (5) violations involving an
extraordinarily high degree of negligence or gravity or other unique aggravating circumstances; or
(6) discrimination under of the Code. W. Va. Code Special

assessment violations must be at least $5,000 but may not exceed $10,000. Id. An individual

personal assessment violation may be issued to any miner who knowingly violates any health or

10

safety provision of Chapter 22A of the West Virginia Code or a health or safety rule promulgated
pursuant to Chapter 22A. W. Va. Code Individual personal assessment violations
are not to exceed $250. Id.

In addition to the 22A-1-21 fines, 22A--2-66 requires the OMHST Director to impose a
$100,000 civil administrative penalty on any operator or general mine foreman who fails to give
immediate notice to the state of an incident that caused or threatens to cause death or a serious safety
concern. The statute specifically defines such incidents and allows the Director to waive the penalty
if the failure to provide notice was caused by circumstances wholly outside the control of the
operator. I

The provisions of 22A-1-21 could use some tweaking. The term "knowingly" as used in
subsections and should be defined to mean that the violations were intentionally
committed.and not that the person knew that he or she was violating some law. In other words,
ignorance of the law should be expressly eliminated as a defense. Subsection should also
make clear that an operator "knowingly violates" the law if any agent -- any management personnel
-- knowingly violated the code or regulation. And the ceiling for special assessments should be
raised from $10,000 to $20,000.

Unfortunately, many accidents and injuries result from the carelessness or recklessness of
coal miners rather than from the operator's actions or inactions. To improve the deterrent effect on
unsafe miner behavior, the statutory ceiling for individual personal assessments should be increased.
Obviously, individual miners cannot afford to pay the kinds of penalties that operators pay, but the
penalty must be sufficient to impose a sanction that will operate as a conscious deterrent on unsafe

conduct that is something less than the capital punishment of decertification. The current cap of

11

$250 is not sufficient to accomplish that purpose. As noted above, "knowingly" should be defined
in such a way as to exclude ignorance of the law as a defense.

Enhance pattern of violations provision

A provision authorizing penalties for patterns of violations would allow the OMHST to
identify those mines known to continuously violate the health and safety provisions of the West
Virginia Code and would provide an additional enforcement tool for protecting the health and safety
of coal miners. A provision should be enacted that sets forth criteria to identify those mine operators
who have a habit of disregarding the health and safety of the State's coal miners and that establishes
what constitutes a pattern of substantial and significant violations. Imposition of stricter penalties
should be made available against operators identified as persistent offenders. The penalties should
include closure orders until compliance is established.

Procedures and criteria should be created by statute or by the OM HST pursuant to statutorily
granted rule-making authority to identify those operators who have established pattern of violations.
Consideration should be focused on the operator's compliance history, including: (1) orders issued
under W. Va. Code and (2) 'violations issued; (3) the history of
accidents, injuries, and fatalities at the mine while under the operator's control; (4) any other
enforcement measures taken against the operator by the and (5) any mitigating
circumstances. See Pattern of Violations, 78 Fed. Reg. 5056 (Jan. 23, 2013) (codified at 30 C.F.R.
Part 104). Once a mine operator is identified as having a pattern of violations, notice shall be issued
to the mine operator informing him of this characterization. See 30 C.F.R. 104.3 (2013). If notice
is issued on a mine operator based on a finding that the mine has been characterized as having a
pattern of violations and that mine is issued any substantial and significant violations
within three months (90 days) after the issuance of the notice, the OMHST should have the authority

12

to issue an order, pursuant to 22A--l-15 of the West Virginia Code, withdrawing all persons from
the mine and prohibiting them from reentering the mine until an authorized representative of the
OMHST determines that no danger exists and that the mine is in full compliance with all health and
safety regulations.

Although the West Virginia Code refers to a pattern of violations, that
provision applies only as a consideration in issuing a temporary closure order and not as a basis for
imposing other penalties. What constitutes a pattern of violations justifying additional penalties and

increased oversight needs to be clarified and the criteria must be articulated. The specific pattern

criteria and the process for identifying pattern violators should be posted on the OMHST's website.

See 30 C.F.R. 104.2.

2. Clarify decertification for coal miners, foremen, and others and coordinate decertification
with other states

Clarijjz desertification

Suspension or revocation of a miner's certification imposes a greater sanction than a mere
monetary fine. Currently, West Virginia Code 22A-l-3l sets forth the procedures for withdrawal
of a miner's certification, but the practice is rarely used and the provision does not specify which
offenses warrant suspension or revocation of one's certification. Currently in West Virginia, the only
specified ground for miner decertification is a violation of the substance abuse drug screening
provisions that were implemented in January, 2013. See W. Va. C.S.R. 56-19-5 .4 (2013).

To strengthen penalties for coal miners, foremen, and other certified personnel within the
mines, the OMHST and Coal Mine Safety Board of Appeals should be authorized to suspend or
revoke a miner's certification for specified serious offenses or for a pattern of individual personal

assessments. What constitutes a serious offense warranting suspension or revocation of certification

13

must be clearly defined. See 805 Ky. Admin. Regs. 8:010 (2002) (defines first offense as an
individual's or entity's intentional violation of, or order to violate, a mine safety law that places a
miner in imminent danger of serious injury or death). Provision should be made, however, to
authorize the OMHST to seek decertification for unspecified conduct that involves a serious breach
of safety and to decline to seek desertification for specified conduct that, in the particular
circumstances, was rational and justified. The procedure used to decertify those miners charged
with committing a serious offense or pattern of violations can be the same procedure as is used to
decertify those miners who have violated the substance abuse drug screening policy. Once it is
determined that the specified offense(s) warrant(s) suspension, the Board of Appeals, in its
discretion, shall determine the appropriate period of time for suspension. See 805 Ky. Admin. Regs.
8:030 (2002). After the suspension period ends, the miner may apply to the Board of Appeals for
reinstatement of his certification. See id. The Board should also have the authority to revoke
certification permanently or for an unspecified period.

Coordinate decerttfication with other states

The law should direct the OMHST, upon the suspension or revocation of a miner's
certification, to share that information with surrounding states. The Office should also be required
to post on its website a list of the names of decertified miners and the periods of their suspensions.
The distribution to other states' mine safety agencies and the website postings should include those
miners whose certification has been suspended or revoked due to a violation of the substance abuse
drug screening provision.

3. Strengthen subpoena power

Currently under West Virginia Code the Director of the OMHST has the

power to call or subpoena witnesses for the purpose of conductin hearings into any mine accidents,

14

fires, or explosions. The section -should be amended to empower the Director to delegate his
subpoena authority to OMHST legal counsel and to inspectors to question any individual, without
the presence or knowledge of a mine operator, regarding a mine accident. The provision should
expressly recognize an individual's right to retain legal representation during any questioning and
state the duty of OMHST to inform the interviewee of that right. Amendment should also be made
to provide that, if the interviewee is being questioned on the record as the spokesperson for the
operator, then the operator has a right to have its counsel attend as well.

Finally, the mileage rate allowed by to witnesses should be increased from
the current $.15 to that amount that the State pays its employees for their official travel.

4. Modify Accident investigation procedures

To achieve more efficient and thorough investigations following serious or fatal mine
accidents, a mine accident investigation team should be created. The mine accident investigation
team should consist of a number of mine inspectors that the Director deems sufficient to conduct
a thorough investigation and preserve evidence collected during the investigation.

The need for a mine accident investigation team has been created by the delays that occur
before the Coal Mine" Safety Board of Appeals. Because of a backlog in the Board's docket, a
hearing on the events of a serious accident is often held years after the investigation and issuance
of any citation. Under the current practice, once the operator gives notice to the OMHST of the
accident, an inspector investigates the conditions of the mine and the causes of the accident. W. Va.
Code ?22A-l-14. A report is then issued to the Director of the OMHST setting forth the results of
the investigation, including the conditions of the mine and the perceived causes of the violations.
Id. When a violation is alleged and is challenged, a hearing ensues before the Coal Mine Safety
Board of Appeals. By the time the case gets to hearing, it is often difficult for an inspector to recall

15

accurately the exact "events and why violations were issued. This problem can be alleviated by the
creation of a mine accident investigation team that has received special training in investigation and

hearing procedures.

The duties and compensationof the mine accident investigation team should be specifically.

set forth by law. The team should consist of a panel of mine inspectors, both underground and
surface. The number of insp ectors that shall be employed on a particular mine accident investigation
should be decided by the Director of the OMHST, based on the proximity of the mine inspectors to
the accident scene and the need for a smaller or greater number of mine inspectors to serve. Because
of practical limitations, a mine accident investigation team would only be engaged in fatalities or
those cases that, .in the Director's opinion, involve a serious injury. The duties of the mine accident
investigation team shall include: 

- Conduct a thorough investigation of the mine accident, including identifying all factors
that caused the accident, identifying any contributing actions or inactions of any party;

- Prepare a thorough report of the accident, identifying the causes of the accident, any
citations issued and the basis for them, (C) witnesses relied on in identifying the causes of the
accident, a list of persons within or around the mine at the time of the accident, copies of all
pertinent records pertaining to the accident at the time it occurred and to the perceived causes of the
accident, and any actions taken by the mine accident investigation team or operator to remedy
the violations and any future actions that must be taken by the operator (or other person) to_comply
with the relevant provisions of the law and prevent a reoccurrence; and

- Upon completion of the investigation and the report, compile inventory, and preserve all
evidence relating to the investigation, including any notes taken during or after the investigation,

all records collected, and all witness statements.

16

Regulations should also specify the compensation for the members of the mine investigation
team. The provisions relating to OMHST mine rescue teams provide an appropriate analogy for
determining an appropriate compensation for mine accident investigation team members. See W.
Va. C.S.R. 36-44-4. Currently, the minimum compensation to be paid to mine rescue team
members is $250 per month in addition to the required salary earned as a mine inspector employed
by the OMHST. Minimum compensation for mine accident investigation team members should be
established and reviewed annually by the Director of the OMHST. See Appendix for a proposed.
statute on mine investigation teams.

5. Create Corporate Director, Officer, and Agent Liability
West Virginia does not currently impose comprehensive liability on individual members of

corporate boards or corporate officers and agents. The federal Mine Safety and Health Act does.

. 30 U.S.C. provides:

Whenever a corporate operator violates a mandatory health or safety standard or knowingly
violates or fails or refuses to comply with any order issued under this chapter or any order
incorporated in a final decision issued under this chapter, except an order incorporated in a
decision issued under subsection of this section or section of this title, any director,
officer, or agent of such corporation who knowingly authorized, ordered, or carried out such
violation, failure, or refusal shall be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under subsections and of this
section.

West Virginia should consider adopting this provision or follow a recommendation made by the

Govemor's Independent Investigation Panel on the UBB disaster on the same subject:

17

 Adopt provisions similar to those contained in the Sarbanes~Oxley Act to make a Board
of Directors accountable for mine safety compliance. Boards of Directors should utilize
existing health and safety committees or form a committee to oversee health and safety
aspects of the mines under the company's control. The committee would be responsible for
'ensuring compliance with all federal and state regulations and would be required to certify
that the mines are in compliance each quarter. A criminal penalty should be assessed on
these board members who certify, negligently or willfully, that the mine is in compliance
when it is not."
6. Strengthen the Anti-Retaliation Provision
West Virginia Code provides a remedy for miners and their authorized
representatives who have been discriminated against because they have invoked the protections of
the mine safety laws or have participated in any proceeding resulting from the administration or
enforcement of those laws. An aggrieved miner may apply to the Board of Appeals which is
directed to investigate the matter. In reality, there is no investigation. Rather, the matter proceeds
to a hearing at which each side presents its evidence, and the Board renders its decision. The
provision could use improvements.
First, the miner is given only thirty days in which to file his application -with the Board of
Appeals. That is an extremely short limitations period for what can often be a fairly complicated
matter. Six months would be a more reasonable limitation. Second, in light of the Board's practice

of not investigating the cases, the parties could be given some limited rights of informal discovery.

. Davitt McAteer, er al., Gcvernor's Independent Investigation Panel, UPPER BIG BRANCH: REPORT TO
THE GOVERNOR 109 (May 201 1), available from: 

18

Third, the provision could provide an alternative remedy to the miner of filing a court claim
that could seek not only back pay but also noneconornic damages or, perhaps, liquidated damages
equal to the amount of back pay or other economic loss. Technically, that alternative already exists
in discharge cases due to the State Supreme Court's decisions in Coilins v. Eikay Mining Company,
179 W. Va. 549, 371 46 (1988), and Wiggins v. Eastern Associated Coal CompanyVa. 745 (1987), which held that employment discharges of miners who have invoked
the mine safety laws violate a substantial public policy of the' State and are therefore actionable in
tort. See also Stanley 12. Sewell Coal Company, 169 W. Va. 72, 285 679 (1981). A statutory
provision would, however, solidify that a tort claim is an alternative, could make the administrative
and judicial alternatives mutually exclusive (which is not currently the case), could alsoprovide for
attorneys' fees for prevailing plaintiffs in the circuit court cases (something that the public policy
cases do not authorize), and could expand the alternative remedy beyond the discharge cases. As

a practical matter, the judicial alternative would only make sense to claimants when there is a

potential for substantial damages.

C. PERFORMANCE STANDARDS
1. Review the drug and alcohol testing and enforcement provisions
In January, 2013, and pursuant to the authority created in the 2012 Act, W. Va. Code 
21A-1A-1, et seq. the OMHST rule took effect requiring operators to administer random substance
abuse drug screening of certified personnel at least four times per year testing at least twenty-five
percent of a mine's employees. C.S.R. 56-19-3.13 and The Rule has been amended to
include mandatory alcohol breath tests. C.S.R. 56-19-5.4. The statute could use some

tweaking.

19

Subsection 1 of Article IA should authorize covered employers to use testing procedures that
are as reliable as the currently required urine tests. (Notably, that would currently be use of hair and
blood samples.) Subsection 2 should make clear that, at the Board of Appeals hearing, the burden
of persuasion rests on the person who has tested positive for a prohibited substance. The Act should
also give the Director the discretion and authority to modify the program's scope and procedures.

In addition, the first year of the testing program has yielded a very large number of appeals
to the Board of Appeals, a number that threatens to displace the Board's other important work.
Consideration should be given to providing for some alternative mechanism for satisfying the
employees' due process rights and relieving the Board of that onus.

Finally, regarding the confidential nature of substance abuse screening tests,
should be amended to make clear that the OMHST can disclose to other state mine safety agencies,
and can publicly post, the names of miners who have been decertified because they have failed a
substance abuse test. The section raises an additional problem with regards to the conduct of
appeals by miners who have tested positive. Section 3 precludes release of the test results except

in limited circumstances. It is critical, however, for the OMHST in the appeal cases to adduce the
results as evidence and to have medical personnel testify about the results. At the same time, the

Board of Appeals has insisted that the hearings shall be public. Section 22A-1A-3 must therefore

- be amended to either authorize disclosure of the test results in hearings before the Board of Appeals

or to mandate closure of the hearings.
2. Revise rock dusting requirements
Section 22A-2-24 of the West Virginia Code currently requires and regulates rock dusting,

but enforcement to ensure adequate rock dusting has proven difficult. Inadequate rock dusting

20

contributed in a significant way -to the UBB explosion.' Several changes must be made to address
the problem. First, 22A-2-24 should be revisited. The 2012 Act amended it to raise the required
level of incombustible content of mine dust from 65% to 80%. The State should also consider
increasing the required incombustible content when methane is present and adopt something similar
to the federal standard. It provides: "Where methane is present in any ventilating current, the
percent of incombustible content of such combined dust shall be increased 0.4 percent [above 80%]
for each 0.1 percent of methane." 30 C.F.R. 75.403. Second, the incombustibility standard
should be enforced by inspector use of a Coal Dust Explosibility Meter, which provides real time
readings of the combustibility of particles in the mine air. See Part IV-C, infra, on Technology.
Third, operators should be required to purchase and use the meters. Finally, the State should
develop and insert in 22A-2-24 a standard for the quality of rock dust that is used, and inspectors
should be trained on how to test rock dust for quality.

As suggested elsewhere in this report, varying the times of the day when inspections occur
could contribute to better enforcement of rock dusting and air quality control.

3. Eliminate remaining references to "flame safety lamps"

Section 22A-2-14 makes reference to and authorizes use of a "flame safety lamp." That
equipment is no longer in use or considered safe. The 2012 Act removed references to the flame
safety lamp in other provisions of the Act and replaced it with "approved methane detecting device,"
but overlooked 22A--2-14. That oversight should be corrected.

4. Study Extended Cut Mining

7See . Davitt McAteer, et al., Governor's Independent Investigation Panel, UPPER BIG BRANCH: REPORT TO
THE GOVERNOR (May 201 1), available from: 

21

The OMHST has plans to study the effects of deep or extended out mining. This needs to
be supported. By using such techniques, operators may be able to reduce the number of equipment
moves (which are high-risk measures), enhance efficiency, and possibly reduce dust levels (because
of the way the scrubbers on the machines work). Nevertheless, the federal government has "been
limiting the ability of operators to use deep or extended cuts. Study is needed to more precisely
assess upsides and down sides of the technique and to work with federal officials to reach an
appropriate balance.

D. BOARD OF COAL MINE HEALTH AND SAFETY
Revise the composition and procedures of the Board of Coal Mine Health and Safety

The powers and composition of the Board of Coal Mine Health and Safety ("Board") are set
forth in Chapter 22A, Article 6 of the West Virginia Code. Currently, the Board is made up of six
voting members, three members selected by the Govemor from nominations submitted by the

operators' association and three selected from union-submitted names. W. Va. Code 22A-6-3.

The OMHST Director serves as an ex officio, non-voting member. W. Va. Code 22A-6-3(a) (4). I

The duties of the Board include proposing and promulgating rules to enhance coal mine safety,
reviewing all reports and recommended rules submitted by the Director of the OMHST, and
reviewing coal mine fatalities. W. Va. Code 

The Board's ability to function has been hampered by the lack of a voting member to serve
as a tiebreaker in the event that the six industry-- and union--nominated voting members cannot agree
on a proposed rule. Prior practice provided the Director of the OMHST with voting rights, but there
are good reasons not to put the Director in that position again. There are several alternatives. One
would be to require the six members to provide the Governor with three nominations of persons

knowledgeable in coal mine health and safety from which he or she can select the seventh member.

22

Or the Governor could be given full authority to name the tiebreaker without confining the selection
to a particular list. Yet another possibility would be to assign the selection or nomination in the first
instance to the industry- and union-nominated members and, if they fail to agree on a person or set
of nominees within a stated time period, to then allow the governor full authority to select a person
of his or her choice. In any event, the nominee should be subject to Senate confirmation.
Obviously, with an odd-numbered Board, the possibility of gridlock can be avoided.

Section 22A-6-3(t) should also be amended by deleting its clause that prohibits the Board
from voting unless all of its members are present. -For a Board with an even number of members,
the provision promotes gridlock. For a Board of any size, it gives each Board member a veto power
by simply not attending a meeting.

E. SUMMARY
To improve the current West Virginia mine safety laws and regulations and enhance the
health and safety of the State's coal miners, the following recommendations are made:
- Increase the salaries and numb er of surface and underground mine inspectors employed
by the OMHST, as deemed appropriate by the Director of the 
- Implement initial, annual, and specialized training programs for inspectors;
- Authorize mine inspectors to order the abatement of hazards that are not expressly
identified within the law;
- Create criteria and procedures for targeted and impact inspections of those mines that
have an identifiable history of noncompliance, a high accident rate, or geological or
other features that create unusual safety risks;

- Review regularly mine inspection priorities;

23

- Increase fines on operators cited for special assessments and include a pattern of
violations provision;

- I Clarify decertification grounds and procedures for mine personnel and coordinate
desertification with surrounding states;

- Strengthen the OMHST's subpoena power to allow the OMHST attorneys and inspectors
to question those witnesses deemed pertinent to a mine accident investigation;

0 Creation of a mine accident investigation team to be used for fatal mine accidents and


those determined to be serious;

I Create liability for corporate directors, officers, and agents;
- Strengthen the anti-retaliation provision;
- Revise the drug testing prov_isions and monitor other states' substance abuse drug

screening regulations to ensure the best practices in monitoring miners and sanctioning

those found to be in violation;

- Revise and enforce rock dusting requirements.
- Eliminate remaining references to "flame safety lamps"; and
- Create a seventh position on the Board of Coal Mine Health and Safety and establish a

procedure for the selection of that member.
COAL LUNG DISEASES AND AIR QUALITY CONTROI.
A. INTRODUCTION
Coal miners risk a spectrum of lung diseases from their inhalation of coal dust. These
include not only the interstitial lung diseases of pneumoconiosis (or black lung) and silicosis but also

dust-related diffuse fibrosis and chronic obstructive pulmonary disease, such as chronic bronchitis

24

and Following the imposition in the Coal Mine Health and Safety Act of 19699 of
federal air standards and monitoring, there was a steady decline in the rates of pneumoconiosis and
other detected lung diseases among coal miners. This trend reversed itself in (about) 2000." A
study completed in 2010 of the files of West Virginia coal miners during a nine-year period showed,
among other things, rapid disease progression, with as little as five years and a mean of twelve years
between the miner's last normal chest radiograph and a diagnosis of progressive massive fibrosis. 
Moreover, the post mortems that were able to be done on 24 of the 29 UBB victims revealed that
17 of them had pathologic findings of pneumoconiosis. The diseased miners ranged in age from 25
to 61 years and included five who had less than ten years of experience." Smaller mines and the
mines of Central 'Appalachia have been "hot spots" for black lung incidence."

The explanation for this surprising and disturbing turn-around is likely multifaceted. A
likely contributing cause is that, with thick--seamed coal being. depleted, mining has shifted to

harder-to-access and thinner seams of coal, which requires cutting into more rock, which in turn

"Edward L. Petsonk, Cecile Rose, Robert Cohen, Coal Mine Dust Lung Disease: New Lessons from an
Old Exposure, 187 AM. J. RESPIR. Carr. CARE MED. 1178 (2013).

930 U.S.C. 801, etsea.

(NIOSH), Work Related Lung Disease Surveillance System, Table

Wade, Edward L. Petsonk, B. Young, I. Mogri, Severe Occupational Pneumoconiosis among
West Virginian Coal Miners: One Hundred Thirty-Eight Cases of Progressive Massive Fibrosis Compensated
between 2000 and 2009, 139 CHEST 1458 (2010).

Davitt McAteer, et al., Governor's Independent Investigation Panel, UPPER BIG BRANCH: REPORT TO
THE GOVERNOR (May 201 1).

"Grayson H. Kinilakodi, Analysis of U. S. Small-Mine Compliance with Proposed New Respirable Dust

Standards and Implications for Better Dust Control Methods, 332 TRANSACTIONS (Society for Mining,_ Metallurgy,
and Exploration) (2012).

25

increases the miners' exposure to silica." In addition, miners are generally working longer shifts,
and longer shifts increase the miners' exposure, especially since dust levels tend to build up as a
shift progresses. (The longer the production goes', the more dust.) Changes in mining practices and

enforcement may have rendered the 1969 standards no longer adequate to protect miners' health. '5

Finally, there is evidence that some operators have learned how to game the monitoring system and 

exceed dust limits without detection."

Whatever the causes, it is clear that lung disease among coal miners and its prevention
continue to present huge challenges.

There are several issues that need to be addressed relating to the occurrence of black lung
and silicosis among miners. Miners suffering from black lung or silicosis have full access to
workers' compensation, as provided in Chapter 23 of the West Virginia Code. Unfortunately, while
workers' compensation may provide miners with benefits once they have been diagnosed with black

lung and/or permanently disabled, it does nothing to protect those individuals from being

discriminated against because of their disease or to prevent instances of black lung or silicosis -

Laney, Edward L. Petsonk, MD. Attfield, Pneumoconiosis among Underground Bituminous Coal
Miners in the United States: Is Silicosis Becoming More Frequent? 6'7 OCCUP. ENVIRON. MED. 652 (2009); R.L.
Grayson H. Kinilakodi, Analysis of U. S. Small-Mine Compliance with Proposed New Respirable Dust Standards
and Implications for Better Dust Control Methods, 332 TRANSACTIONS (Society for Mining, Metallurgy, and
Exploration) (2012).

Pollock, .D. Potts, G.J . Joy, Investigation in to Dust Exposures and Mining Practices in Mines in
the Southern Appalachian Region, 2010 MIN. ENG. 44 (Feb. 2010); .L. Weeks, The Mine Safety and Health
Administration Criterion Threshold Value Policy Increases Miners Risk of Pneumoconiosis, 49 AM. J. IND. MED.
492 (2006); Criteria for a Recommended Standard: Occupational Exposure to Respiratory Coal Mine Dust, DHHS
(NIOSH) Publication 95-106 (1995), available at: Based on the latter
research, MSHA has twice proposed revised standards. A 1999 proposal was not adopted. A currently pending
proposal was published for comment, revised, and then submitted. It is currently pending before the Office of
Management and Budget. .

Department of Labor, MSHA, REPORT OF INVESTIGATION OF FATAL UNDERGROUND MINE

EXPLOSION OF APRIL 5, 2010 (available at:
1noappx.pdf).

26

among miners. Several strategies are needed. First, coal miners with black lung or silicosis must
be protected from discrimination by mine operators in the hiring and firing process. Second,
resources should be provided the OMHST to study the need for additional State regulation of air
quality in coal mines, what standards if any should be imposed by the State, and what would be the
most effective means to implement and enforce any standards that are imposed. Third, there needs
to be improved monitoring of the miners. This includes preliminary and periodic testing and other
prevention strategies that seek to identify black lung and other occupational diseases before they
become permanently disabling. Fourth, educational efforts must be initiated to teach miners about
the ravages of miners' lung diseases and about how the risks of contracting them can be reduced.
Lastly, data collection must be improved to include data regarding dust conditions and the
incidences of lung disease by mine location and job.
B. MINERS WITH LUNG DISEASE FROM DISCRIMINATION

West Virginia must implement regulations to protect miners with black lung or silicosis from
discrimination in the workplace.

One of the main problems discouraging miners from getting tested and treated for black lung
is the negative stigma attached to having the disease. Not only is it a fatal and abhorrent disease, but
it also often makes those miners who have been diagnosed less appealing to employers. Because of
the effects that black lung has on a miner's health and the potential liability that attaches to an
employer if that employee becomes permanently disabled or dies during the course of his
employment, an employer will often choose to hire a miner who has not been diagnosed with black
lung over a miner who has. For these reasons, miners choose not to get tested for fear that a

diagnosis will result in loss of their job or inability to get another job.

27

Currently, state regulations protect miners from being discriminated against for a variety of
reasons. For example, West Virginia Code 22A-1-22 is a whistleblower protection law that
prevents an employer from discharging an employee for notifying the Office of Miners' Health,
Safety and Training of an alleged violation occurring within the mine, for instituting a proceeding
under that law, or for testifyinglin a proceeding resulting from the enforcement of the provisions of
that law. W. Va. Code 22A-1-22(a) (West 2011). In addition, West Virginia Code 23-SA-1 et
seq. prohibits employers from discriminating against an employee because he or she sought or is
receiving workers' compensation benefits. Like all employees, miners are protected by the State's
Human Rights Act from discrimination on the basis of race, sex, disability, age, and similarly
invidious class-based grounds. W. Va. Code 5-1 1-1, et seq. Additional protection is needed,
however. The State should prohibit an employer from discriminating against an employee who is
capable of performing the job in question because he or she has been diagnosed with black lung or
other occupational disease." Such measures would not only protect those miners who have been
diagnosed with a lung disease from the potential loss of a job but also would reduce the stigma that
is attached to a black lung diagnosis. If miners are not afraid of losing their jobs or being assigned
to a less desirable job within a coal mine, they are much more likely to get tested and treated.

C. ADDRESS MONITORING OF THE WORKPLACE

Successfully monitoring the workplace and attempting to reduce or eliminate those hazards

that are linked to black lung and other occupational diseases are important efforts that must be

undertaken to reduce diagnoses among miners. . Respirable coal dust causes lung diseases yet it is

"This provision would not create that dramatic of a change; following the enactment of the Americans with
Disabilities Act Amendments Act of 2008, it is likely that most employer discrimination against qualified persons
because they have black lung would be considered to be a Violation of the Americans with Disabilities Act, 42
U.S.C. 12101, et seq. To date, however, that possibility has not been the subject of a reported decision known to
the reporter.

28.

not currently regulated in a meaningful way by West Virginia. West Virginia Code 
authorizes the Board of Coal Mine Health and Safety to "promulgate rules governing respirable
dust," but the Board has not used that authority and lacks the resources to do so.

Regulation of the concentration of respirable dust in a mine's atmosphere is currently the
domain of MSHA. Federal regulation now requires that the average concentration of respirable dust
during each active shift not exceed 2.0 milligrams per cubic meter of air 30 C.F.R.
70.100. MSHA has proposed new regulations that, if adopted, would reduce the respirable dust
standard to 1 mg./cm and create a 0.1 mg./cm standard for quartz. These standards were based on
a major NIOSH study done in the nineties and had been proposed but not adopted during the Clinton
Administration. The current proposal has been through the comment period, been revised, and is
presently pending before the Office of Management and Budget.

To ensure that the State does what it can to reduce the occurrence of black lung and other
occupational diseases among miners, resources should be committed to the OMHST to study the
need for state regulation and monitoring of respirable dust in coal mines and, if the need exists, to
develop the standards to be imposed and the means for enforcing those standards. The resources
needed would include not only those to support additional personnel but also additional expertise.

D. IMPROVE MONITORING OF MINERS
Reducing the instances of total disability among miners caused by black lung and other

occupational diseases would be facilitated by periodic testing and check-ups for miners. While

"mandatory testing for black lung is impractical, there are other alternatives that should be

considered. One alternative is to incentivize testing. Providing operators with discounts on their

workers' compensation or insurance premiums if they choose to implement a testing program .for

their employees will give operators an incentive to do so. An example of a testing program is the

29

Coal Workers' X--ray Surveillance Program, used by the National Institute for Occupational Safety
and Health as a medical monitoring and surveillance program to detect and prevent
black lung. The program requires up to three chest x--rays performed on coal miners within a
specified time frame after their employment begins. After those are performed, the initial testing is
followed by voluntary periodic chest x-rays performed approximately every five years. This and
similar programs would obviously keep a participating miner informed about his health, but it would
also provide valuable data for both operators and regulators.
E. EDUCATE MINERS ABOUT LUNG DISEASE ISSUES

Education of miners about lung diseases is needed on several fronts. First, they need to
know what they risk when they breathe coal dust. That is, they need to learn about the debilitating
effects of black lung, silicosis, and other diseases, and they need to learn it when they are starting
their careers. Second, miners need to learn what they can do to lessen the risks of getting black lung.
How a miner does his job can affect the amount of dust that he breathes, so he must know the
techniques for limiting that amount. Third, miners must learn how to detect, monitor, and seek help
regarding lung diseases. Finally, miners must be taught about their rights and remedies regarding
the diseases -- their protection from discrimination and the benefits available to them if they do get
black lung and how to go about seeking those benefits.

The United Mine Workers' of America provides training to its members on prevention
strategies and on how to detect of the disease. Uperators must be required to develop
instructional programs of the same order so that all miners are as informed as those in the union.
Providing such training would not impose a burden on the operators, who are already required to

provide continual training.

30

F. IMPROVE DATA COLLECTION

To improve the monitoring of the workplace and of miners, and to eventually reduce the
prevalence of black lung, there needs to be better data collection. The Office of Mine Safety and
Health Research a subdivision of the Center for Disease Control has focused
its research efforts on establishing enhanced methods of measuring the amount of dust and finding
ways to reduce miners' exposure to that dust. While the OMSHR has paved the way, additional
research and data collection need to be undertaken on a smaller level, beginning on a company-wide
basis.

Black lung-related deaths have been clustered in the Central Appalachian region, including
West Virginia, Kentucky, and Virginia. Because of this, more advanced research is necessary in this
region than in other parts of the country. To begin, coal mine operators should be required to
periodically use the five sample method. *3 That requires the operator to test the dust exposure levels
and levels of black lung in five separate parts of the mine and averaging their numbers. The average
of those numbers is the average for that specific coal mine and is that number that MSHA uses to

determine compliance with the 2.0/cm standard. These numbers should then be added to a statewide

database. Doing the five samples will not only provide useful data for monitoring coal dust levels

throughout West Virginia, but each coal mine operator will know where in the mine the dust levels
are most problematic and can explore corrective and preventive measures.
G. SUMMARY
The new and surprising increase in black lung among coal miners makes it necessary for the

state of West Virginia, as well ascoal mine operators, to adopt policies that seek to provide better

"See 30 C.F.R. 70.207 - 70.210.

31

monitoring of the workplace and of miners to reduce the occurrence of black lung. To do so, it is
recommended that:
- Protection be provided to qualified miners who have black lung or other occupational

disease from discrimination in employment;

- Legislation be enacted protecting miners from discrimination because of a black lung
diagnosis;
- Resources should be invested in the OMHST to study the need for and desirable scope

of State regulation of respirable dust concentrations in coal mines;
- The use of more efficient, accurate, but practical technology for monitoring the
workplace be encouraged;

- An incentive be provided to operators for initial and periodic testing of coal miners for

black lung;
- Training be provided to miners on the severity of black lung and other occupational

diseases and what the miners can do to reduce the risk of contracting black lung;

- Coal mine operators be required to periodically collect five air dust samples at different
locations within the mine and submit the results to the States for the creation of a
statewide database.

IV. TECHNOLOGY
A. EDUCATE ABOUT AND ENCOURAGE USE OF NEW TECHNOLOGIES

The Mine Safety Technology Task Force is responsible for providing technical and other

assistance to the OMHST relating to the implementation of new technological requirements. W. Va. I

Code 1-3. In addition, the Task Force is charged with conducting a study each year on the

opportunities for new and emerging technological advances. Id. Once the study is complete, the

32

Task Force must submit a report to the Governor and the Board of Coal Mine Health and Safety that
includes a comprehensive overview of any issues regarding the implementation of technological
advances and recommendations as to the enactment, repeal, or amendment of any statute to take
advantage of technological advancements. Id.

In addition to continuing the current procedures used by the Mine Safety Technology Task
Force, methods should be established to make the information contained in the task force study and
other work more readily available to operators, miners, and organizations representing miners in a
user-friendly format to inform them of emerging and available technologies. The Task Force has
recently created a website to begin that process," but it needs to be developed.

To encourage the use of the safest and most advanced technologies, incentives such as tax
credits or decreased insurance premiums should be provided to mine operators to use those
technologies. The Code currently includes the West Virginia Innovative Mine Safety Technology
Tax Credit Act, W. Va. Code 11-3BB-5, et seq. The Act could use-liberalization by increasing
the allowable credits, allowing for carry-overs and carry-backs, and shortening the length for
qualifying lease terms in subsection In addition, 14 presently calls for the Act to
terminate on December 3 1, 2014. That needs to be amended to continue the Act. Finally, provision
must be made to publicize the Act's potential to coal operators and to make it more user-friendly.
To date, the Act has been under-used.

There are three technological advances whose safety benefits would justify the costs of their

adoption. They are discussed in the following three sections.

"Go to: 

33

B. REQUIRE PROXIMITY MONITORS CAMERAS

One of the most important things that could be done to increase day to day safety in coal
mines would be to require use of either proximity monitors or cameras on moving equipment."
Using both would be most effective. Many, and perhaps most, serious mining accidents occur when
equipment is being moved." Proximity monitors or cameras would significantly reduce the risks
in equipment moves, and using both could render equipment moves no more dangerous than other
deep mining activity. If only one device is required, it should be the proximity monitor.

The proximity monitor automatically shuts off heavy equipment if it gets too close to miners
working around it or to other objects. It would thus prevent the equipment from crushing or injuring
nearby miners and would protect the equipment operator, as well. There is concern that a monitor
could create a false sense of security if, unbeknownst to the operator, it has been overridden.
Adding a camera to the equipment would fill this gap in safety and enable the equipment operator
to see other miners if they have gotten in his blind spots. A provision that would make overriding
a proximity monitor grounds for decertification would also increase the effectiveness of a monitor
requirement. I

_Coa1 mining can be highly repetitive, which increases the risk that a miner might not be as
attentive as he should be. Proximity monitors guard against such circumstances. The use of both

proximity monitors and cameras would be the ideal. The cameras could increase efficiency by

"The West Virginia Coal Mine Technology Task Force has recommended to the Board on Coal Mine
Health and Safety that it adopt a rule requiring use of proximity detection devices in all of the State's underground
coal mines. Ken Ward, Jr., Task Force Recommends "Proximity Systems in Mines, CHARLESTON GAZETTE, Sept.
19, 2013. The same recommendation had been made in 2008 by a team of inspectors from the OMHST. Id. The
Board recently created a subcommittee to study the proposal.

"For example, "between 1984 and 2010, 30 miners died and 220 were injured nationwide when they
became crushed, pinned or struck by continuous mining machines underground." Id.

34

allowing machinery operators to see miners before_forcing a shutdown, and in the event a monitor-

- was not working, the cameras would provide a back-up mechanism.

C. REQUIRE USE OF COAL DUST EXPLOSIBTLITY MONITORS

Another piece of technology that should be required is the hand-held rock dust monitor,
referred to as the Coal Dust Explosibility Meter, or This device gives real time
measurements of the percentage of noncombustible dust and the explosibility of the coal dust present
in the mine. They are not now required, however, and have not achieved widespread use.
Unfortunately, the industry still judges rock dusting mostly by a visual test, trusting that the
responsible miner or inspector can just tell. While it may be the case that some individualsdo have
that ability, coal dust explosibility is not something that should be left to eyeball inspection. The
massive explosions at Farmington in 1968 and UBB in 2010 attest to the disasters that inadequate
rock dusting can wreak."

Reluctance to use the device should have been dispelled by an extensive 2009-10 cooperative

study between NIOSH and MSHA. The study found that, in close to 300 samples, laboratory

retestings agreed with CDEM field readings in 97% of the cases in which the sample was found to

be combustible. (That is, the noncombustible content was less than 80%. See 30 C.F.R. 75.403.)

The 3% difference was attributed to the samples' variability, that is, the retained moisture in the

22] . Davitt McAteer, er.' al., Governor's Independent Investigation Panel, UPPER BIG BRANCH: REPORT TO
THE GOVERNOR (May 201 U.S. Department of Labor, MSHA, REPORT OF INVESTIGATION or FATAL
UNDERGROUND MINE EXPLOSION or APRIL 5, 2010 (available at:


35

samples, and the inherent ash in the coal." In the wake of the Upper Big Branch explosion, there
is no reason why mine operators and inspectors should not be required to use CDEMS.
D. ENCOURAGE USE OF VIRTUAL AND INTERACTIVE TRAINING

Additional technological advancements that the industry should move toward are virtual
training and interactive training. Virtual training has developed over the last few years and has true
potential. It is an encompassing term used to describe computer simulated training of varying
degrees. The OMHST has developed two virtual training videos that it makes available to schools
for the eighty hour training, and some schools have used them. Several mining academies as well
as a number of operators use this type of training for equipment operators. Functioning similarly
to flightsimulators, the programs simulate operation of coal mining equipment. The simulators are
interactive and real time and give miners hands-on experience before they ever step foot on the real
equipment in the mine. The simulators could be incorporated into statue-offered training, and coal
operators and mining schools could be given incentives to induce their use of the technique. The
training offers a safer and more effective means for giving inexperienced miners the foundation to
perform safely.

One of the most often heard complaints about miner training is that it is repetitive and
boring. Interactive training could alleviate this problem by allowing miners or prospective miners
to become much more engaged in the process. Some trainers have used computer programs to turn

training into a game, and others have created simulated environments of roof falls, fires, etc. The

"The study is reported in M.L. Harris, M.J. Sapko, .D. Varley, Coal Dust Explosibiliiy Meter
Evaluation and Recommendariansfor Application, DI-IHS (NIOSH) Publication No. 2012-172 (Aug. 2012). As
reported to the OMHST, Consolidation Coal Company has conducted its own tests of the CDEM and found its
accuracy to be exceptional. 

._36

simulated environments show miners the true importance of (for example) their rescue equipment
and force them to understand its proper use.
V. TRAINING AND CERTIFICATION
A. IMPROVE PREEMPLOYMENT TRAINING

The training required for miner certification needs major attention. Currently, many
operators depend upon independent businesses to provide the training for the 40 (surface mining)
and 80 hour (deep mining) cards. W. Va. Code 22A-8-3 and -4. There are no standards for
qualifying these businesses; the OMHST maintains an approval process and requires some proof of
mining experience, but the process is not rigorous and is not pursuant tolstatutory or regulatory
standards." There are no standards for suspending approval. There is some monitoring of the
instructional programs, but it is not structured and depends upon inspectors and mine safety
instructors who have many other duties to perform. The situation needs attention. The State has
several alternatives. If the current regime is to continue, the OMHST should be authorized and
directed to issue regulations that establish criteria that businesses must meet to qualify to become
mine training facilities, that create a licensing system, that provide for periodic review of the
substance of the training, and that specify standards and procedures for license revocation.
Alternatively, resources could be given to the OMHST to develop high quality training programs
to be offered in various regions of the state on a regular basis. Ideally, the programs would take
advantage of the latest training technology and would have facilities similar to those builtin Boone

County by Alpha Coal Company as part of the UBB settlement. Coal operators could continue to

"One interviewee reported seeing a Southern West Virginia business that was a combination hair salon and
miner training school. Another school shared a building with an illegal drug operation.

37

offer their own training, but it should be subj ect to approval and oversight by the OMHST. See W.
Va. Code 22A-8-3.
B. REVISE 

West Virginia Code 22A-8-4 to -6 require an apprenticeship following the initial training
of at least six months during which time the trainee, referred to as a "redhat" because of the color
of the hard hat that he is required to- wear, must always be working with and under the supervision
of a certified miner. There is currently, however, no structure to the apprenticeships, and redhats
are frequently assigned tasks without regard to whether they are actually learning how to become
knowledgeable, competent and safe coal miners. Operators should be required to develop training
programs for their apprentices to ensure they receive a well--rounded training. The programs should
belsubmitted to the Director for approval. The T)irector should be authorized to issue regulations
setting forth what the training programs should contain. Finally, serious consideration should be
given to extending the apprenticeship period for an additional two or three months.

C. ENHANCE CONTINUING TRAINING

A repeated refrain heard from miners is that the routine safety/training sessions are repetitive
and ineffective. Because many or most operators do not have 'the capacity to develop
meaningful educational programs, resources should be allocated to the OMHST to do it for them.

The programs could be develop ed and then distributed to operators to be delivered to the miners and

could include interactive training that engages the miner in computerized or nontechnological

simulations. Operators would continue to be free to develop their own training or to contract with
outside firms to provide it, subject to OMHST oversight.' Furthermore, the Office should be given
authority to develop regulations establishing a minimum number of continuing training hours that
a miner must complete within a twelve month cycle in order to retain his certification. (This system

38

 would be similar to what many professions require for continuing education.) A separate set of

regulations should be authorized for training and certification of foremen. The training hours should
be supplemented by posteincident (accidents and near-accidents) briefings delivered by the operator
and monitored by inspectors. I
D. ENHANCE EQUIPMENT TRAINING

Whether it is new equipment or equipment that is new to the miner, equipment training for
miners has been inadequate. The OMHST needs the authority to issue regulations requiring
adequate training on equipment before a miner can be assigned to operate it and should be given the
resources to develop training programs (including simulated training) to be made available to
operators and administered by inspectors or safety instructors. The OMHST currently provides
instruction to inspectors on new technology, but that should be statutorily required. Furthermore,
assignment by an operator of a miner to operate equipment on which he has not been trained should
be made a serious safety violation.

E. REQUIRE CERTIFICATION OF MINE SUPERINTENDENTS

The OMHST should be authorized and directed to develop a certification program for mine
superintendents that includes basic experiential requirements, an examination of the applicant's
knowledge and ability to carry out the State's mine health and safety laws, and in-mine

demonstration of superintendent skills.

ACKNOWLEDGMENTS
The West Virginia Law Institute acknowledges and extends appreciation to the many people
who contributed their time to this report. The project leaned heavily, as it should, on officials, staff,

and inspectors of the West Virginia Office of Miners' Health, Safety and Training. Mine safety

39

experts with the United Mine Workers of America, the West Virginia Coal Association, the State's

'mine safety boards, the Upper Big Branch investigative team, Consolidation Coal Company, and

researchers in the field all gave freely of their time. The bulk of the information gathering and
research fell upon Marissa Zielinsky and Joshua Elliot, law students at the West Virginia University
College of Law, who did yeomen and accomplished work on the report for over eighteen months.
Two. other W.V.U. law_ students, Kenneth Bannon and Katrina Harper, also provided valuable
assistance. To all of these contributors, the Law Institute says "thank you."

-- Robert M. Bastress, Jr.

John W. Fisher, 11 Professor of Law and

Director, West Virginia Law Institute
West Virginia University College of Law

40

Abbreviation

CDC

CDEM

C.F.R.

DHHS

MSHA

NIOSH

OMHST

OMSHR

UBB

W. Va. C.S.R.

GLOSSARY OF ABBREVIATIONS

The Reference

Center for Disease Control (U.S. research agency)

Coal Dust Explosibility Monitors

Code of Federal Regulations

Department of Health and Human Services (U.S. Cabinet Department)
Mine Safety and Health Administration (U.S. enforcement agency)
National Institute of Occupational Safety Health (U.S. research agency)
Office of Miners' Health, Safety and Training (W. Va. enforcement agency)
Office of Mine Safety and Health Research (U.S. research agency)

Upper Big Branch (W. Va. 2010 mine disaster)

West Virginia Code of State Regulations

APPENDICES

Appendix A .-- Harisha Kinilakodi, Robert Larry Grayson, Samuel A. Oyewole,
Evaluating Equivalence of the Safe Performance Index (SP1) to a Traditional Risk
Analysis, 2 OPEN J. OF SAFETY Sci. TECH. 47 (2012).

I-Iarisha Kinilakodi. R. Larry G-rayson, A Methodology for Assessing
Underground Coal Mines for High Safety-Related Risk, 49 SAFETY SCIENCE 906
(2011). 

Appendix Proposed Statute to Create Mine Accident Investigation Teams
Appendix - Rock Dusting: A Jurisdictional Survey

Appendix -- Recommendations and Findings of the Governor's Independent.
Investigation Panel on the Upper Big Branch Explosion (May, 2011).

APPENDIX A

Harisha Kinilakodj, Robert Larry Grayson, Samuel A.
Oyewole, EvaluatingEq uivalence ofthe Safe Performance
Index (SP1) to a Traditional Risk Analysis, 2 OPEN-J. OF
SAFETY TECH. 47 (2012).

Harisha Kjnilakodi R. Larry Grayson, A Meihodologz
for Assessing Underground Coal Mines for High Safety-'
Related Risk, '49 SAFETY SCIENCE 906 (2011).

Open Journal ofSofety Science and Technology, 2012, 2, 47-54  
doii I0.4236iojsst.20l2.2200'i' Published Online June 2012 Rielfifilf?li

Evaluating Equivalence of the Safe Performance Index
(SP1) to a Traditional Risk Analysis
Harisha Kinilakodi*, Robert Larry Grayson, Samuel Adekunle Oyewole
Department of Energy and Mineral Engineering,' The State University, University Park, USA
Email: h2kl28@psu.edu 
Received January 11, 2012; revised February 10, 2012; accepted February 2012

ABSTRACT
Following upon a recommendation by the Mine Safety Technology and Training Commission relative to thevmodifica-

tion of the Australian risk assessment approach for application to U.S. mines, the authors had previously" developed the

Safe Performance Index (SP1) as a risk-based methodology. It -was desigied to assess the relative safety'-related risk. of
underground coal mines regarding' injuries and citations. for violations of regulations. To determine whether it is

equivalent to a traditional risk analysis, a Risk Index is developed in this paper using a traditional risk analysis that em- .

braces the frequency and severity of accidents and violations of mine regilations in a final equation. This methodology
is used. to analyze the relative risk for all underground coal mines for the years 2007-2010, and the results are compared
to the results obtained using the SP1. The comparison revealed that the SP1 does emulate a traditional approach to risk
analysis. A correlation coefficient of -0.89 or more "was observed between the results of these two metho'dologies, and
either can be used to assist companies, the Mine Safety and Health Administration (MSHA), or state agencies in target-
ing mines with high risk for serious injuries and elevated citations for remediation of their injury and/or violation ex-
perience. The SP1, however, provides a more understandable approach for mine operators to apply using measures

compatible. with enforcement tools. The SP1 is also _a transparent and reproducible approach for mine opera-

tors and federal and state enforcement agencies to apply,

Keywords: Risk -Analysis; Risk Index; Mine Safety; Performance Index; Safety Violation; Safety-Related Risk

1. Introduction

The U.S. underground coal mining industry has made
significant progress in safety over the years, but the re-
cent major disasters have set back the progress. Histori-
cally, major disasters have led to a major legislative and
regulatory rfefonn that is stricter and highly specified
regarding compliance. Last decade -was no different fol-

lowing the. 2006 underground coal mine multiple-fatality

events, the U.S. Congress passed the Mine Improvement
and New Emergency Response Act and the disaster
of 2010 (the worst mining disaster in 40 years) initiated a
bill, the Robert C. Miner Safety and Health Act,
which was voted down by the Congress; however, another
version is pending further action. These events indicate
that the industry has likely been following a reactive
approach to managing safety, rather than a proactive
approach in managinglmajor-hazard risks.

In 2006, the National Mining Association established
an independent, tripartite commission to study the

. status of safety in underground coal mines and to deter-

mine what may be done to elevate the industry to a global

'Corresponding author.

Copyright (C) 2012 SciRes.

leadership position in mine safety. As described in their
report the commission "specified 75 recommenda-
tions that, if implemented, would set safe performance
standards for achieving a culture of prevention at mines,
including risk assessment, and noted that mines which
could not meet the level of safety requirements specified
in the report should not be allowed to mine coal." The
report was "aimed at' preventing underground coal mine
disasters in the future and targeting the goal of zero fata-
lities and lost-time accidents." The commission also
recommended that some form of risk assessment needs to
be adopted in every mine to mitigate the major-hazard
risk and improve the safety performance; however, the
Australian risk assessment approach should be modified
for application in U.S. mines.

in 2007, the Mine Safety and Health Administration
(MSHA) implemented an enforcement risk-targeting tool
called Pattern of Violations (POV) to target mines with a
poor safety performance, specifically to force improve-
ment of their safety. By 2010, the POV process was
called broken because of its failure to place any mine on
POV status its legal complexities, and its ineffec-
tiveness in targeting the poor-performing mines On

OJSST

48 H. KINILAKODI ET AL.

the commissions' recommendation, the National I nstitute
for Occupational Safety and Health (NIOSH) pursued a
project on Major Hazard Risk Assessment (MHRA), a

-pilot study to demonstrate risk assessment metho-

dologies in the U.S. mining industry. However, it has not
largely been adopted by the industry. Some of the possi-
ble reasons for indust'ry's reluctance to adopt a formal
risk assessment- methodology include: 1) too busy with
compliance, 2) complicated or sophisticated methodo-
logies, 3) lack of 'on-site expertise (particularly at small

mines), 4) lack of safety infrastructure to support its use,

and 5) learning curve associated with the implementation
of formal risk assessment. 

Previously, the Safe Perforrnance Index (SPI) was de-
veloped as a transparent and reproducible risk-based
methodology to assess the relative" overall safety per-
formance of a mine Until late 2010, the POV screen-
ing criteria were not transparent and reproducible by' the
mine operators. The Safe Performance Index' (SP1) was
olfered as an alternative to the POV process in assessing
a mine's overall' safety performance, and it could help in
overcoming the industry's reluctance in adopting formal
risk-based methodologies In this .paper, a traditional
risk-analysis method is developed using MSHA data' on
accidents and citations for violations of regulations dur-
ing 2007-2010. The results will be compared to the SP1
results to assess how well the SP1 emulates a more tradi-
tional risk analysis. 

2. Literature. Review

According to Joy and Griffiths there are many dif-
ferent ways of doing risk analysis, both qualitatively and
'quantitatively. Generally, experienced people are neces-
sary to make good judgments in a qualitative risk analy-
sis. Unfortunately, in the U.S., 60% of the underground
coal mines are small-size mines. (less than 50 employees)
and they are generally not equipped with on-site

safety expertise capable of perforr_ning_ a complex or so-

phisticated risk analysis. Quantitative risk analysis has
the advantage of using historical safety perfonnance data
to evaluate the frequency and severity in a more object-
tive way. Historically, small underground coal mines
have experienced higher fatality rates than larger mines
[10-l and a similar trend was found in a recent study
which "indicates a heavy occurrence of very severe in-
juries in a number of very small (<20 employees) and
small mines" Mine size is highly correlated with coal
seam height in the U.S., and smaller mines tend to ope-
rate in significantly thinner coal seams than large mines.
Miners are at higher risk -of having a nonfatal injury as
mining height decreases 

Often, fatality and injury rates are used to evaluate the
safety performance of mines and their ability to manage

Copyright (C) 2012 SciRes.

risk. However, in the U.S. mining industry, elevated cita-
tions for certain violations of regulations (such as those
designated assignificant and Substantial (Sets) and with-
drawal or imminent danger orders) may reflect failures of
mine personnel to manage risks and may result in "poor"
mine safety performance. Risk analysisis not mandatory in
the as it is in Australia, where risk analysis is con-
sidered as a part of the daily work routine. The South
African mining industry "has established a Hazard Iden-
tification and Risk Assessment Program (HIRA-2003) to
identify and record significant risks" 

. Quantitative perfonnance measurement has been. proven
valuable in the fields such as economics, health care
management, and education, where policies are driven by
indicators such as the unemployment rate, infant mortality,
and standardized test scores The policymakers in
the U.S. mining industry have recognized the importance
of data and analytically accurate details for' decision-
making. During congressional hearings on mine safety
reform (HR. 5663), the' current paper's co-'author pre-
sented the SPI as an alternative methodology to the POV
process 

3. Methodology

In this paper, a risk analysis method is developed and
compared with the SP1 methodology which was pre-
viously developed by' the authors The description of
the data, detailed description of the risk analysismethod,
and a brief description about the SP1 methodology is given
next. Comparison is made" to evaluate the equivalence of
the SP1 in assessing the risk of accident and citation data
of differing severity in a combined measure (the SP1) to a
risk analysis approach-. 

3.1. Data Description

The accident/injury data and citation data for the years
2007 to 2010 were downloaded from the MSHA Open
Government Data Sets website Mines with no pro-
duetion and zero inspection hours were excluded from
the analysis. There were 563 underground coal mines in
2007, 583 in 2008, 539 in 2009, and 496 in 2010. The
non--finalized or under-contest citations, significant and
substantial citations, and unwarrantable
failure, withdrawal and imminent danger orders [104(b),
104(g), and 107(a)] were included in the citation
data. Higher risk is associated with more severe accident
measures and with more elevated citation measures.

3.2. Risk Analysis

Generally, risk is defined as the product of the proba-
bility of occurrence (frequency) of an event and its sc-
verity of impact. In this study, the probability of occur-

OJSST

H. KINILAKODI ET AL. 49

rence is the normalized safety measure and, severity is
determined from the relative level of associated loss. For
example, a general citation has low severity, an $853
citation has medium severity, and an order has high se-
verity; a similar scheme is applied to the accident/injury
measures. Accordingly, a risk analysis approach is de-
veloped by assigning five risk' levels (very low, low, me-
_dium, high, and very high) to the six normalized safety
measures, which are calculated' using downloaded calen-
dar~year data on injuries, employee-hours worked, cita-
tions, and inspection hours. 

The six safety measures are the no days-lost incidence
rate (NDL IR, number of no lost-time accident/injuries
per 200,000 employee hours), the non-"fatal daysvlost
incidence rate (NFDL IR, number of lost-time injuries
per 200,000 employee hours), the severity measure 
100, number of statutory, restricted,  lost work days
per 200,000 employee hours, divided by 100), the num-
ber of citations per 100 inspector hours IH), the
number of significant and substantial citations per 100
inspector' hours IH), and the number of with-
drawal orders and unwarrautable failures per 100 in-
spector hours (01100 IH).

Each measure's range of values is divided into five
equal intervals in ascending order, and risk values of 1
(very low), 2 (low), 3 (medium), 4 (high), and 5 (very
high) are assigned accordingly. In the majority of the
cases, there will be few extreme values that influence the
determination of the ranges of values for a normalized
safety measure, and in this case-, it was no different. In
order to negate the influence of extreme values, the box-
plot method, available in the Mioitab statistical software
is used to determine the lower quartile, upper quar~

tile, and interquartile range values. In examining the data,
the boxplot, a non-parametric statistical method, is used
to identify outliers and extreme outliers without making
any assumptions about thepopulation distribution. For
each normalized safety measure, the interquartile range
(IQR: the absolute d_ifi'erence between the upper and
lower quartile) is calculated using the values. item the box-
plot as shown in Figures 1-4. The outliers and extreme
outliers are calculated as follows 

IQR upper quartile (Q3) -- lower quartile (Q1) (1)
Outlier upper quartile (Q3) 1.5 (IQR) (2)
Extreme Outlier upper quartile (Q3) 3.0 (IQR) (3)

In this paper, extreme outliers are identified and excluded
item the process of determining the five equal intervals
of, values for each safety measure. However, the extreme
values are included when assigning the risk value, and
they were assigned a very high. risk value (5). For each
tnine's safety measures, based on the interval values for
each safety measure, a corresponding risk value' is assigned
to convert it to a risk measure. The new risk measure has
values ranging from 1 (very low risk) to 5 (very high
risk). To form the risk index for a mine, the weights 0.05,
0.15, 0.30, 0.05, 0.15, and 0.30 are used as pre-multi-
pliers for RNDL, RSM, RC, RSS, and R0, re-
spectively, which are symbols for the no days lost risk,
the non-fatal days--lcst risk, the severity measure risk, the
citation risk, the citation risk, and the
types of orders risk, respectively, and the products are
sun1r-ned.- The weighting factors vary according. to' the
severity of the various measures; for example, orders are
the most severe citations that can be issued by inspectors,
thus they get the highest weighting factor. Note that the

  

NFDL IR.  i

 
 
   



CIIOO IH

 

1

   

Copyright (C) 2012' SciRes.

    

Fig_u_ re 1. Boxplot orzoor safety measures.

 

it

 

 

OJSST

50 H. KINILAKODI - ET AL.

 

   
 

onqn ZR

 

   
     
  
       




. 



 

Figure 2, Boxplot of 2008 safety measures.

 1+

 
   

  

      

M, 


'9 -.




   



Inf}! 4:19
351100 


lonon IH











  
   

 
 

   

I-
- i
Cliflfl IH 

1! 

fl

I

Figure 4. Boxplot of2l}l0 safety measures.

Copyright (C) 2012 Scilles. - - . OJSST

H. KINILAKODI ET AL. 51

sum of the weighting factors equals 1, appropriately, and
the sum of weights for the injury experience (three mea-
sures) and the citation experience (three measures) are
each. 0.5. The authors believe that the injury experience
and the citation experience should have equal weights for a
mine safety performance index to be well-<<balanced. This
method represents a traditional risk-analysis approach using
a new risk measure that embraces frequency and severity
in the final equation. 

3.3. Safe Performance Index (SP1)

The SP1 methodology was previously developed by the
authors. to monitor mine safety performances using
the appropriate accidentlinjury and citation safety mea-
sures. An in-depth explanation on criteria for oho.os'ing
the six safety measures and the corresponding weighting
factors to form the SP1 is given in In this paper, the
same methodology is used to calculate the SP1 or' each
mine for the years 2007 to .2010 which are then com-
pared to the results of the risk-index analysis. It is noted
that th'e West Virginia Coal Association (WVCA) and
Arch Coal Company have given statements at regulatory
hearings on the POV process in support of using the'SPl.
Arch Coa1's Tony B-tunbico "noted that MSHA should
consider SP1, a holistic measure that more equitably
blends injury and enforcement data" The metho-
dology was also explicitly proposed in the ULS. House of
Representatives' bill H.R. 5-788 to target "poor" mine
safety performances.

4. Equivalence of the Safe Performance
Index Results to the Risk Analysis Results

1 The SP1 results were evaluated to detennine how well the

SP1 methodology emulates atraditional risk analysis ap-
proach, as rcpresented by the risk-index methodology.
The values of the upper quartile, interquartile range, and
'extreme outliers for all the six safety measures for the
years 2007-2010 are shown in Table 1. The IH

measure did not have any extreme outliers, except in
2009. In 2007, there were 12 extreme outliers in NDL IR,
4 in NFDL IR, 22 in 2 in 1'11, and 35 in
0/100 IH. The extreme outliers of each risk measure for
the years 2008, 2009",. and 2010 are shown in Table 1.
The constructed risk ranges for each normalized safety
measure for. the years 2007-2010 are given in Tables 2-5,
respectively.

4.1. Risk Index Results

The final risk index values for mines range from one to
five. A risk index value of one implies a very low-risk
mine, >1 but 52 is a low-risk mine, >2 but 53 is a nie-
dium-risk mine, >3 but :54 is a high-risk mine, and >4 is
a very high-risk mine. The numbers of very high-risk and

high-risk mines for the years 20'07-2010, as per' the .

risk--index are shown in Table 6. In 2007, there were 8
mines with very high risk and' 27 mines with high
risk whereas in 2008, there were 4 mines with very
high risk and 28 mines with high risk In. 2009,

there were 7 mines with very high risk (54) and 29 mines

with high risk and in 2010, there were 3 mines with
very high risk and 25 mines with high risk The
average risk index for all the mines _was 1.65, 1.67, 1.69,
and 1.66 in 2007, 2008, 2009, and 2010, respectively.
The average risk index for all mines for the four years
was at the low-risk level and 6% of the mines were attire
highlvery high risk levels.

. 4.2. Safe Perfonnance Index Results

The final SPIs of the mines range fiorn 100 to 0 (zero).
An SPI of 100 implies a very good safety performance
mine, an SP1 less than 40 implies "below average" or
"poor" safety performance, and an SP1 of zero indicates

A the worst safety--performa.nce mines. The average SP1 for

all mines was 66.66 each year due to the intrinsic' design
of the methodology, which is a valuable and consistent
marker for average performance. As shown in Table 6,

Table 1. Safety measures' interquartile range, upper quartile, and extreme measures: 2007-2010.

Boxplot
- 2007 2008 2009 2010
Measures
Inter Upper Extreme Inter Upper Extreme Inter Upper Extreme Inter Upper Extreme
Quartile Quartile Outliers Quartile Quartile Outliers Quartile Quartile Outliers Quartile Quartile Outliers
Range (Q2) (H03-) Range (Qs) 0106-) Renee (Qa) 0108-) Range (Q3) (I108-)
NDL IR 7.77 7.77 31.08 (12) 6.82 6.82 21.28 (15) 6.54 6.54 26.16 (12) 7,70 7.70 3080 (13)
NFDL IR 7.57 7.5? 30.28 (4) 5.91 5.91 23.64 (8) 6.47 6.47 25.88 (3) 5.12 5.12 20.48 (4)
SMII-00 4.32 4.32 17.28 (22) 3.20 3.20 12.80 (25) 4.11 4.11 .16.44 (29) 1.88 1.88 7.52 (29)
C1100 IH 15.34 27.33 73.35 (0) 12.76 25.33 63.61 (0) 11.89 23.32 58.99 (2) 11.37 21.96 56.0? (0)
SSr'l00 11-1 6.06 9.43 27.61 (2) 4.87 8.08 22.69 (3) 4.43 7.32 20.61 (3) 5.09 7.88 23.15 (1)
0.60 0.60 2.40 (35) 1.15 1.15 2.00 (31) 0.42 0.42 1.68 (38) 0.65 0.65 2.60 (28)
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Copyright (C) 2012 SciRes.

52

Table 2. Safety measures' risk level scheme: 2007.

H. KINILAKODI ET AL.

Risk Level
Measures Very Low Low Medium High 
1 2 3 4 5
IR 0.00 - 6.21 6.22 - 12.43 12.44 13.64 13.65 - 24.36 24.37 - 31.07
NFDL IR 0.00 - 6.05 6.06 - 12.11 12.12 - 13.16 13.17 -24.22 24.23 -- 31.27
 31141100 0.00 - 3.45 3.46 -- 6,91 6.92 -- 10.3_6 10.37 -- 13.32 13.33 - 17.27
111 0.00 12.31 12.32 - 25.62 25.63 - 33.43 . 33.44"- 51.24 51.25 -- 64.05
331100111 0.00 5.52 5.53 - 11.04 11.05 4 16.56 16.57 - 22.03 2209- 27.60
01100 11-1 0.00 - 0.43. 0.49 - 0.96 0.97 - 1.43 1.44 - 1.91 1.92 -- 2.39
15101041 Indicates increasing severity of accidentfinjury measures and citation measmes. -
Table Safety measures' risk level scheme: 2008.
Risk Level 
Measures V0131 Low Low Medium High Very. High
0.00 - 5.45 5.46 - 10.91 10.92 .. 16.36 16.37 -- 21.32 21.33'- 27.27
a_ 1' NFDL 111 0.00 -4.73 4.74 - 9.45 9.46 -- 14.13 14.19 13.90 - 13.91 - 23.63
31117100 0.00.256 2.57 -- 5.12 5.13 . 7.67 7.63 - 10.23 10.24 - 12.79
311001" 0.00 - 11.97 11.93 - 23.94 23.95 - 35.91 35.92 - 47.33 47.39 - 59.35
SS1100 111 .0.00 - 4.54 4.55 - 9.07 9.03 - 13.61 13.62 - 13.14 13.15 - 22163
011100.111 0.00 - 0.40 0.41 -- 0.30 0.31 - 1.19 1.20 - 1.59 1.60 - 1.99
N01e:?' I11dic3te's imreasing severity ofaeeidenviajury 1ne'as'u11es-311d citation measures. A
Table 4. Safety measures' risk level scheme: 2009.
111111 Level
Measures Very Low Low - Medium High Very High
0.00 -5.23 5.24 - 10.46 10.47 -15.69 15.70 -20.92 20.93 - 26.15
0.00 - 5.17 5.13 - 10.35 10.36 - 15.52 15.53 - 20.70 20.71 -- 25.37
31711100 0.00 -- 3.29 3.30 . 6.57 6.53 - 9.36 9.37 -- 13.14 13.15 - 16.43
C1100 0.00 -11.30 11.31 -- 23.59 23.60 - 35.39 35.40 -- 47.13 -47.19 -- 53.93
311.1100 111 0.00 - 4.12 4.13 -- 3.24 3.25 - 12.36 12.37 - 16.43 16.49 - 20.60
01100 1:11 0.00 - 0.33 0.34 - 0.67 0.63 - 1.00 1.01 - 1.34 1.35 -1.67
Notes; Indicates increasing severity of aeeidentfinjuty measures and citation measures.
Table 5. Safety measures' risk level scheme: 2010.
Risk 
Measures Very Low Low Medium High _v.-11y High
0.00 -- 6.16 6.17 - 12.32 12.33 - 13.47 13.43 - 24.63 24.64 - 30.79
3' 1 NPDL 111 0.00 - 4.09 4.10 - 3-19 3.20 - 12.23 12.29 -- 16133 16.39 -- 20.47
 51111100 0.00 -- 1.50 1.51 - 3.00 3.01 - 4.51 4.52 - 6.01 6.02 - 7.51 
so 0.00 - 10.06 10.07 - 20.12 20.13 - 30.13 30.19 - 40.24 40.25 . 50.03
i ss1100 H-1 0.00 -- 4.63 4.64 - 9.26 9.27 - 13.33 13.39 - 13.51 13.52 . 23.14
01100 IH 0.00 - 0.52 0.53 - 1.04 1.05 - 1.55 1.56 - 2.07 2.03 - 2.59

None; Indicates increasing severity of aeeidentlinjury measures and eiralion measures.

'Copyright (C) 2012 Scilles. OJSST

H. KINILAKODI ET AL. 53

Table 6. Very high- and high-risk mines as per risk analysis
and SPI: 2007-2010.

Risk Index (RI) I SPI



>4 >3 Avg. 0.00's <40 . Avg.
2007 3. 27 1.65 30 59 66.65
2003 4 23 L67 27 64 66.66
2009 7 29 1.69 15 40 - 66.66
2010 3 25 1.66 24 52 66.66

there were 30 mines with zero SP1 and 59 mines with an
SPI less than 40 in 2007. Similarly in 2008, there were
2? mines with zero SP1 a.nd 64 mines with an SPI less
than 40, whereas in 2009, there were 15 mines with zero
SP1 and 40 mines with an SPI less than 40. In 2010, there
were 24 mines with zero SP1 and 52 mines with an SPI
less than 40..

4.3. Correlation of the SP1 to the Risk Index
Results

Based on the analysis of results, in the authors' opinion
the mines with a very high risk level should be targeted
for improvement and immediate action should be taken
to reduce the risk; Likewise, the mines with zero SPI
should be targeted and immediate interventions should be
taken to improve the safety performance. Mines with
high risk' or with an SPI less than 40 should take action to
remediate their poor safety performance. 

The risk index results and the. SPI results were tested
for correlation using the Minitab statistical sofiware with
a level of significance (or) of 0.05. The risk index and SP1
correlations. are shown in the Table 7 for the years
2007-2010. The negative correlations of the risk index
with the SP1 were expected, as a high risk index indicates
a high-risk mine, whereas, the SP1 was constructed -as a
positive safe performance indicator. The correlations of
the risk index with the SPI were -0.913, -0.922, -0.905,
and -0.898 for the years 2007, 2008, 2009, and 20l0,_
respectively. The correlations between the risk index and
the SP1 for each year 'were excellent as well as significant

. (based on the p-value). This indicates that the SP1 metl1o-
dology elfectivcly emulates the risk index developed
using the traditional risk approach.

Using the SP1 approach does have the advantage over
the use of the risk index, because in the risk index ap-
proach, the range of values for each risk measure is ge-
nerally unknown in deciding what intervals to create.
Analysis of the data is required to construct an appro-
priate risk interval for each measure. Also, because of the
normalized measures incorporated, the SPI is an under-
standable approach (tto learning curve) for mine opera-
tors as well as federal and state enforcement agencies,
and it would likely be more compatible with MSI-IA's

Copyright (C) 2012 SciRes.

Table 7. Correlation of risk index and SP1 results: 2007-


Years Correlation (RI-SP1) p-value (a=0.0s)
2007 -0.913 0.000
2003 -0.922 0.000
2009 0905 0.000
2010 -0.393 0.000
enforcement tools.

5. Conclusion

In this paper, a traditional risk approach was used to de-
velop a risk index that embraces frequency and severity
in the final equation for assessing the safety perfor-
mances of U.S. underground coal mines based on six
prominent normalized safety measures. The risk. index
ranks the mines' relative safety perfonnances on a risk
scale that ranges from very low risk to very high risk. In
order to explore the equivalence of a traditional risk
analysis appro'acl1 with the SP1, the mines' safety per-
formances were also calculated using the previously de-
veloped Safe Performance index" methodology. The risk
index and SP1 -results for each mine. for the years 2007-
2010 showcda correlation coefficient of -0.89 or more
between the results of these two methodologies. Thus the

application of the SP1 methodology effec_tively- emulates 

a traditional risk analysis. Either can be used to assist
companies, the U.S. Mine Safety and Health Administra-
tion, .or_ state enforcement agencies in targeting mines
with high risk for serious injuries and elevated citations
for remediation of their injury and/or "violation expe-
rience. The SPI is, however, a transparent, understand-
able, and reproducible approach for mine operators and
federal and state agencies, with a quick. learning_ curve,
and it is likely more com'pati_bl_'e with MSHA's enforce-
ment tools than 'a formal risk analysis.

REFERENCES

"Mine Improvement and New Emergency Response Act,"

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H. Kinilakodi and R. L. Grayson, Methodology for
Assessing Underground Coal lvlincs for High Safety-Re
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OJSST

Safety Science 49 (2011) 906-91]

 

A methodology for assessing underground coal mines for high safety-relatecl risk

Harisha Kinilakodi R. Larry Grayson

Department ofEnergy' and Mineral Engineering. The State University. State College, PA. USA

an-Tlctarnro ABSTRACT

Article history:

Rec?iv'ecl'27 July 2010

Received in revised form 4 February 2011
Accepted 12 February 2011

Available online 10 March 261:

Keywords:

Mine safety
Performance index
Safety violation
Safety-related risk

or injury experience.

in 2008 the authors developed a methodology for assessing underground coal mines for high risk for
major-hazard events. It focused on major hazard-related violations of safety standards' associated with
high-risk conditions. later using the same stratified pilot sa'm'ple of 3-1 mines. injury measures and 
citation data were combined into "a Safe Performance index (SP1). Using 2009 data, the database' was
expanded to 107 mines, which is a 30% sampling of all Liniierground coal mines. The SP1 was used to
assess the relative safety-related risk of mines. including by mine-size category. The niethddology can
be used to assist companies. the Mine Safetyand Health Administration, or state agencies in targeting
mines with high risk for serious injuries and elevated citations for remediation of their violation and,'

(C) 2011 Elsevier Ltd. All rights reserved.

1. Introduction

Fo'llo'wirlg the underground coal mine disas'ters of 2006. the U5.

Congress passed. the' Mine Improvement and New Emergency Re-

sponse Act Act. P.L. 109-236). It was enacted primarily to
address several shortcomings in emergency preparedness and re-
sponse. aiding miners in escaping and surviving emergency situa-
tions. and to increase the enforcement of safety in mines. An
independent. tripartite commission (Mine Safety Technology and
Training CoTnrr'1issio'n._ 2006) was established by the National
Mining Association. which published a consensus report aimed at
preventing underground coal mine disasters in the future and
targeting the goal of zero fatalities and lost--tir_ne accidents. The
report specified 75 recommendations that. if implemented. would
set safe perfonn?ince standards for achieving a culture of preven-
tion at mines. including risk assessment. and noted that mines
which could not meet the level of safety requirements specified
in' the report should not be allowed to mine coal.

Act. the Mine Safety and Health Administration
increased enforcement of mines in all sectors. and the level
of fines was about 3.5 times higher than pre-2005. The provisions
of the MINER Act were largely implemented by 2009. with few
exceptions. thereby increasing the protection of miners during
emergencies" and better preparing mines for effective emergency

response. Mine safety professionals hoped that major hazard- .

related disasters would be avoided in the future. However. in spite
of many efforts by the Federal government and a number of state
governments, the worst underground coal mine. disaster in

Corresponding author. Tel.: +1 8143211165.
E-maii address: harisha.bhat@gmail.com Kiniiakodi).

0925-7535lS -- see front matter 9 2011 Elsevier Ltd. All rights reserved.


40 years occurred at the Upper Big Branch--Sou_th_ Mine on April 5.
201 0.

Following' publication of the Mine Safety-Technology and Train-
ing Commission MSTT C) report, the National institute for Occupa-
tional Safety and Health (NIOSH) followed up on the 
recommendation that NIOSH "develop a series of case studies that
mines could use as templates (for risk assessment), and that it con-
duct workshops and seminars to diffuse this approach to safety
throughout the industry." NIOSI-I completed its study, but there
was little, response by industry to attend workshops to diffuse
the major-hazard risk assessment methodology. Thus, a key com-
ponent of the MSITC report remained largely unaddressed. and it
was critical for establishing a safety culture of prevention founded
on systematic risk assessment and follow-up remediation of ide'n--
tified major hazard-related risks.

Beyond ventilation and roof control plans. MSHA has pursued
risk management over the years. Stop Look Analyze and Manage
(SLAM). the Pattern of Violations provision. and Rules to Live
By are the most recent examples. The two-step POV process was
initiated in' earnest in June 2007. Today problems persist with
the PIN process. which depends on final citations, including ele-
vated ones. The process is also not transparent to the mine safety
community. is complex with 10 components comprising the calcu-
lation. and is cumbersome to enforce. particularly because a signif-
icant percentage of significant and substantial citations and
orders are challenged through the due process that operators exer-
cise via the Mine Safety and Health Review Commission.

In the summer of 2007. rheauthors initiated a pilot study of 31
underground coal mines, stratified by mine size and state, to ana-
lyze the comparative risk among them. One of the tools developed
was the Safe Performance index (SP1). which combines statistics on
a mine's injury experience with its citation experience in

H. R. Larry Grayson {Safety Science 49 (2011) 905-911 90"?

determining its relative level of safety. or risk (l<iniIaltodi. 2009).
Emulating the Environmental Performance Index (Emerson et al.,
2010). the was designed to provide a more straight-forward,
transparent, and understandable method for determining the rela-
tive risk of mines thanthe POV process. in the calculation. it gives
greater weight to the injuries and citations that are m'ore.serious. .It
can be. used to benchmark superior safety performance, in'cluding_
by mine size or type of mining, or for screeningrnines for improve-
ment efforts. The details on the development of the SP1 as well as
the results of analyses using it will be given next.

2. Pilot-sample study

The 31 pilot-sample mines shown in Table 1 were created for
the risk assessment exploratory study by G1'aysor1'et al. (2009).
The pilot.-sample mines were created to study the citation
database and it was the first attempt to use the MSHA citation
database for a risk' assessment study, other than MSHA using it
in POV calculations. The 31 mines in the pilot study were randomly
selected and stratified based on mine size and the state in which
they are physically located. In 2006. there were 421 active under>>
ground coal mines with. production greater than or equal to 10,000
tons. Out of 421 mines, 112 were very small mine-size, 143 were
small mine-size,_ 78 were medium Inine--size, 49 were large
mine-size. and 39 very large mine:-size. In the pilot sample there
were 8 very small mines. '10 small mines, 6 medium-size min'es,
4 large mines. and 3 very large mines which were proportionately
representing the various mine--size categories and the nine differ-
ent states (Alahama, Colorado, Illinois, Indiana, Kentucky. 
vania. Utah. Virginia, West Virginia). Hence, the 31 mines sampled
satisfy the size-wise and state-"wise representationldistributlon. In

general, the 31 pilot-sample mines represent the overall industry -

situation. Final MS!-in 2006 injury. employment and citation data
were captured on the 31. mines. Three tools were developed for
monltoringmine safety performance, as follows:

Risk assessment for major-hazard conditions using major haz~
ard-related citation data -- the calculation made for each mine
was the product of the frequency of occurrence of citations
and the penalties (in dollars) assessed on them (Grayson
et al., 2009).

The reliability of not getting an MSHA citation on an inspector
visit [I<ini al<odi and Grayson. 201 1 J.

. The' Safe Performance Index.

The remainder of this paper focuses on the details of the devel-
opment of the Safe Performance Index and the' results from using
it. - 

3. Safe Performance Index calculations from pilot study

data for 2005 on the 31 mines in the stratifiecl, random
sample was used in this pilot study; When the project was begun,
2007 data was not yet available. The basic safety data on- the _sam-
ple mines is given in Table The 'inspector hours' field contains
total inspector hours, primarily because the Pattern of Violation
process (Smith. 20.10] was not yet implemented. In the, pilot study
data there were no fatalities. which indicate the low probability' for
an underground coal mine to have a fatality in a given year
(approximately 4% chance). - 

The nieasures used in calculating the Performance' index (PI).
and later the SP1. for 2006 data included standard injury measures.
l.e. the No Days Lost Incidence Rate (NDL IR). the Non-Fatal Days
Last Incidence Rate (NFDL IR), and the Severity Measure (SM),
and citatiomrelated measures, i.c. Citations per 100 Inspector
Hours IH). Significant and Substantial Citations per 100
Inspector l-lours (SSH00 IH). and withdrawal Orders and
unwarrantahle failures per 100 Inspector Hours (01100 ll-i). They
are shown in Table 2 for the 31-mine sample.

As the first step in calculating the SP1, the is calculated as the
summation of the safety measures. The. PI thus gives a combined

Table 1
MSHA safety data on pilot study mines.

Mine ID No. Empl. No. NLT accidents No. LT accidents Restricted and lost work days Ernpl. hrs. No. citations No; 5&5 No. orders lnsp. 
1 15 0 0 0 35.004 16 3 0 237.50
2 13 0 0 0 8429' 11 I3 0 101.50

3 7 0 0 0 12.285 11 4 0 307.75

4 20 7 3 3 54,692 51 15 0 740.50
5 20 0 1 354 33,214 150 a_4 0 513,60
6' 2 2 162 35.060 65 27 2 435.00
7 14 0 0 0 27.057 7 1 0' 212.25 
15 0 1 120 14,608 13 I 0 156.50
9 49 8 2 146 135.414 512 228 76 2740.50

10 35 2 2 51 79,853 54 23 'l 434.00

1] 21 0 2 50 36,708 46 18 0 301.75

I2 25 2 2 6 40.880 47 20 0 356.75

13 21 0 0 0 38.274 73 39 1 408.25

14 30 2 0 0 67.958 55_ ll 2 1092.80

36 2 4 326 69.822 9 5 0 181.50

16 42 0 9 106,095 48 27 2 445.75

17 22 0 0 0 29.166 84 32 3 416.00

18 37 2 5 384 93.419 72 28' 0 681.75

19 67 1 0 0 178,226 I07 53 0 325.75

20 72 4 2 16 71.977 48 9 0 492.00

21 56 5 2 229 122.416 65 20 0 364.00

22 72 15 1435 170,692 96 41 4 619.75

23- 53 23 1188 152.847 141 9 45 1152.30

24 58 7 52 169.469 86 5? l0 588.00

25 142 10 5 47 278.55? 133 31 8 1556.50

26 107 13 3 165 257,958 354 53 2 858.75

27 103 19 176 309,759 I67 92 2 845.00

28 231 10 4 428 499.328 195 69 12 2088.00

29 390 80 8 653 894.791 370 5 2861.50

30 303 13 12 392 655.104 103 33 1 1705.50

31 383 29 16 1541 794,802 517 128 5 2959.00

908 . H. Kinllakodi. R. tony Graysonfsufety Science 49 (2011) 906-911

Table 2 Table 3
Normalized safety measures used in calculating the SPI. Calculated Pl. normalized Pl and SP1.

Mine ID NDL IR IR SM C.l'l00 1H 551100 IH 01100151 Mine 10 Pl Norm Fl 591
1 0.00 0.00 0.00 6.74 1.26 0.00 1 8.00 0.00 100
2 0.00 0.00 0.00 10.84 5.91 0.00 2 16.75 - 0.01 99
3 0.00 0.00 0.00 3.57 1.30 0.00 3 4.87 0.00 100
4 25.60 10.97 29.25 6.89 2.03 0.00 4 74.74 0.04 96
5 0.00 5.23 1852.72 28.96 16.22 0.00 6 1903.13 1.00 1 0
6 11.09 11.09 898.50 14.94 6.21 0.46 6 942.29 0.5_0 50
7 0.00 0.00 0.00 3.30 0.47 0.00 7 3.77 0.00 100
8 0.00 13.69 1642.94 8 .31 0.64 0.00 8 1665.58 0.88 12
9 11.82 2.95 215.64 18.68 8.32 2.77 9 260.18 0.14 86

10 6.01 5.01 127.73 12.44 5.30 0.23 10 155.72 0.08 92

11 0.00 10.90 326.90 15.24 5.97 0.00 11 359.01 0.19 81

12 9.78 9.78 29.35 13.17 5.61 0.00 12 - 67.69 0.04 96

13 0.00 0.00 0.00 17.88 9.55 0.24 13 27.67 0.01 . 99

14 5.89 0.00 0.00 5.03 1.01 0.18 14 12.11 0.01 99

15 5.73 11.46 933.80 4.96 2.75 0.00 15 958.70 0.60 50

16 0.00 1.89 l5.97_ 10.77 6.06 0.45 16 36.14 0.02 98

17 0.00 0.00 0.00 20.19 7.69 0.72 17 28.60 0.02 99

18. 4.28 10.70 822.10 10.56 4.11 0.00 18 851.75 --0.45 55

19 1.12 0.00 0.00 12.96 6.42 0.00 19 20.50 0.01 99

20 11.1 1 5.56 44.46 9.76 1.83 0.00 20 72.72 0.04 96

21 8.17 3.27 374.13 17136" 5.49 0.00 21 408.92 0.21 79

22 17.58 12.89 1681.39 15.49 6.62 0.65 22 - 1734.62 0.91 9

23 7.85 30.10 12.13 3.87 0.09 23 1608.54 0.85 15

24 8.26 1.18 73.17 14.63 9.69 1.70 24 108.63 0.06 94

25 7.18 3.59 33.75 8.54 1.99 0.51 25 55.56 0.03 97

26 10.03 2.33 127.93 17.93 6.17 0.23 26 164.67 0.09 91

27 12.27 6.46 113.64 19.76 10.89 0.24 27 163.26 0.09 91

28 4.01 1.60 171.43 9.39 3.30 0.57 28 190.30 0.10 90

29 6.71 1.79 147.07 12.93' 3.49 0.17 29 172.16 0.09 91
30 3.97 3.66 1 19.68 6.04 1.93 0.06 30 135.34 0.07 93
31 7.30 4.03 387.77 17.41 4.31 0.17 31 420.99 0.22 78

measure where the highest value is the 'worst' performer in the
groupof mines and the lowest value gives 'the 'best? performer. Since
the Pl had a wide-range of values. it was considered useful to index
the P1 to give a range of values from 0 (best-perfonning mine) to 1
(the Thus the normalized Pl was calculated
as a. rr'1i1'1e's 'Pl dividedby the highest Pl among all mines.

The was then calculated as the normalized Pl times '100. with
the result subtracted from 100. This gives the best-perfoiming
mine' with zero injuries and zero citations. theoretically, having a
value of 100, with the worst-performing mine having a value of
zero. The results of the calculations are presented in Table 3.

4. Modified Safe Performance' Index using 2009' data.

Following completion of the pilot study. MST-IA 2009 data was
captured to examine primarily the fluctuations in the SP1 for the
31 mines. As this process unfolded in early 2010. the Upper Big
Branch-South Mine disaster occurred and issues related to the inef-
fectiveness or the Pattern of Violations process were emphasized in
the mainstream press and media. and to the US. Congress (Smith.
2010). This sparked an examination by the authors of all under-
ground longwall coal mines as compared to the pilot-sample
mines. Added to the list of mines to examine were the under-
ground coal mines given to Congressman Miller (Chair. of the US
House -Education and Labor Committee) by MSHA as 'dangerous'
mines and mines that were targeted for special inspections by
MSHA following the disaster. Ultimately. 2009 accident, in-
jury and citation data were captured to form a database comprised
of 107 mines. This provided a robust database (30% of all mines) for
examining the overall value of the Safe Performance Index in spec-
ifying the relatlve risk of the mines and in identifying the high-risk
underground coal mines. The 2009 MSHA data for the upper 
middle and lower representing the best-performing. aver-

age-performing. and worst-performing mines. respectively, of the

107 mines is given in Table 4.

For this more recent database. responsive to the' need to better
reflect the impact of fataiities and full and partiai disabilities. the
Severity Measure was modified. to include statutorily charged
days for these more serious injuries. Scrutiny of the previous
model for calculating the SP1 showed. for the larger sample. that
the modified Severity Measure and to a lesser extent a couple of
other measures would heavily influence the combination of the
component measures. In order to address this situation. first each
co_rnponent_ measure was scaled to have the same mean 
essentially the data dispersion remained the same. On'c'e' equality
of means was achieved. then weighting factors were used to place
proper weight on the most serious safety-compromising compo-
nents. Severity Measure{100 and IH.

Following are the criteria used for assigning proper weights on
safety measures. Every underground coal mine in the U.S. is in-
spected by an MSHA inspector on a quarterly basis to check
whether a mine is complying with the mandatory health and
safety standards. During an inspection. the'M5HA inspectoris) is-
sue citation(s) for mandatory health and safety standards that
are violated and determine the degree of seriousness based on ta-
bled criteria and their judgment. According to case law (MSHA.
20100). "significant and substantial violations. which are more
serious. must have four elements proved:

. The underlying violation of a mandatory standard.
2. The existence of a discrete safety hazard contributed to by the
violation.
3. A reasonable likelihood that the hazard contributed to will
result in an injury. 
4. A reasonable likelihood that the injury in question will be of a
reasonably serious nature."



If a violation is caused by an unwarrantable failure. where MSHA
has determined that the "mine operator has engaged in aggravated
conduct constituting more than ordinary negligence". then a

H. Kiniiakodl. R. Larry Graysanfsafely Science 49 (2011) 906-911

Table 4
MSHA 2009 safety data on top six best-performing. average performing. and mines of 107 underground coal mines.
Mine ID NLT LT Days lost Fatals Empl. Citations 5&5 at Orders Insp, 
Pilot mine 3 0 0 0 0 15.925 13 0 0 306.25
LW-19 17 0 0 0 370.524 47 16 0 2225.50
LW-26 1 1 148 0 482.319 80 12 0 1064.50
LW-25 2 1 27 0 772.432 173 30 1 1007.00
Lw.14 15 4 60 0 393.530 160 37 0 1522,99
Pilot mine 14 2 0 0' 0 26.612 24 9 0 485.75
26 9 418 0 414.021 355 71 10 1635,75
100-13 6 4 97 0 166.376 229 66 5 850.50
MIL-15 13 13' 471 0 451.091 360 147 5 1584.25
l.W-7 7 14 801 0 343.8 44 250 28 0 965.00
Ml.--8 3 0 0 0 266.533 715 205 36 2304.00
MB-Z8 16 5 152 0 204.501 582 241 3 1890.75
LW--31 15 9 286 0 482.132 517 202 56 1848.00'
013-22 6 6 179 0 169.676 125 64 12 481.00
018-16 3 4 3064 0 254.779 437 as 4 2110.75
Ml,-2 15 11 6062 0 541.880 619 198 '14 2001.75
MB-12 13 12 6616 0 470.964 322 134 2 2146.75
1166-9 6 13' 6653 1 476.391 362 . 133 3 2037.75
LW- Longwail mine: MB MSHA blitz mine: ML - List to Congressman Miller.
Table 5
Scaled values for SP1 cornponems for top six be'st--perror1ning. average performing. and wDISl~peIf0I'I'ning' mines MSHA 2009 data sample.
Mine 1 IR IR C1100 IH IH (H100 IH
Pilot mine 3 0.00 0.00 0.00 1.00 0.00 0.00
LW--1 9 7.1 4 0.00 0.00 0.50 0.51 0.00
LW-26 0.32 0.62 0.60 1.76 0.81 0.00
LW-25 -0.40 0.38 0.07 2.31" 1.50 7 0.33
LW-14 2.61 1.33 0.13 2.47 1.74" 0.00
Pilot mine 14 11.70 0.00 0.00 1.16 1.32 0.00
LW-1 I 9.77 6.45 1.98 5.09 3.10 3.59
1010-13 5.61 7.13 1.15 6.32 5.54 3.45
Ml,-15 4.49' 3.55 2.05 5.33 6.63 1.35
LW-7 3 .1 '7 1 2.03 4.58 6.08 2.07 0.00
ML-3 1.75 0.00 0.00 7.04 6.14 3.116
12.18 7-2.5 1.4.5 7-23 9-10 0-93
LW-31 4.84 5.54 1.17 5.5? 7.81 17.77
MB-22 5.50 10.49 2.07 6.10. 9.50 14.63
MB--16 4.89 4.66 23.63 4.86 2.88 1.11
ML-2 4.31 6.02 21.98 7.26 7.07 4.10
4.30 7.56 27.60 3.52 4.45 0.55
MB -9 1.95 8.10 27.46 4.07 4.72. 0.34

Note: The means for each measure were scaled to 5.

withdrawal order is generally issued. and "a reasonable amount of
punitive charges" are assessed (MSHA. 201013). Thus, a weight of
0.05 was given to Cit'ations]100'lH. 0.15 was given to 1H.
and 0.30 was given to Orders/100 ll-I. In order to balance the consid-
eration of accident and citation in determining a mine's safety per-
formance an equal weighting of the accident measures and citation
measures are used. The case for accidentlinjury safety measures
(NDL IR. NFDL IR, and Severity Measure]10D) are similarly assigned
analogous weighting factors based on the seriousness of the acci-
dents. To achieve proper weighting factors. their sum was forced
to 1. The' was then calculated as the sum 'of the weighting factors
times the component measures. Table 5 shows the results of the
scaled measures for mines given in Table 4.

In examining the calculations of the SP1 using the original ap~
proach. it was found that dividing each mine's Pi by an extremely
high PI for the worst-performing mine would excessively inflate
SP1 values. Because of this inflation. very few mines would have
an SP1 that fell below-50. even though some of the mines had
one or more relatively poor safety measures. Thus to achieve a rea-
sonable SPI that would be practically applicable in targeting poor-
performing mines. in value of 15 was selected to normalize the PI
for all mines. In the SP1 calculation. pool'-performing mines with

Pl values greater than 15 would then get negative SP1 values these.
would be assigned the lowest SP1 value of zero. 

Using fixed values of 5- for the scaled means of the safety
measures and 15 for normalizing the Pl. a straig'ht--forward and
transparent methodology was thus developed for the screening
of poor-performing mines. In this way. each stakeholder group
would use the same methodology when making SP1 calculations.
The results of the SP1 'calculations are given in Table 6 for the mines
listed in Tables 4 and 5.

5. Discussion of results

in analyzing the SP1 results for the 107-mine sample. compari-
sons of various metrics were made among the top 10% '(best-
performing). middle 10% (averageqaerforming). and bottom 10%
(worsteperforming) mines. The besbforining 10% SP1 mines. shown
in Table 7, are characterized as follows:

- All of them had an NFDL IR and 5011100 much less than the

averages for all mines.
a Ten of 11 of them had :1 1H and all ofthem had an 0/100
IH much less than the averages for all mines.

909'

910 H. 3. Larry Groyson/Safety Science 49 (2011) 905-911

Table 6
Pl. normalized PI and SP1 values for mines listed in Tables 4 and 5.
Mine 11) Norm 
Pl Pl 

Pilot mine 3 0.05 0.00 99.7
LW-1 9 0.46 0.03 96.9
LW--2G 0.50 0.03 . 96.7
0.54 0.04 96.4
Lw-14 0.75 0.05 95.0
Pilot mine 14 0.514 o.oo 94.4
Lw-:1 o.2o 14.4
MB--1 3 3.88 0.20 74.2
MI.-15 3.94 0.26 73.7
LW-7 3.96 0.2 6 73.6
ML-8 4.02 0.2 7 73.2
1113-28 4.14 0.28 72.4
LW--3 1 8.25 0.55 45.0
B-22 8.59 0.57 42.7
MB-16 9.04 0.60 39.7
Ml.-2 10.37 0.69 30.9
MB-12 10.64 0.71 29.1
100-9 10.71 0.71 28.6

Teri of the 11 mines had no withdrawal orders or unwatrantable
failure citations.

0 Five pilot mines and six lofigwall mines were in the list.

a Significantly. only one mine on the MSHA list of targeted mines
for special inspection made the list.

The average-performing 10% mines. shown in Table 8. have-

expected characteristics. They are characterized as follows:

a Three mines and MB--28) had a single measure
that was more than two times the scaled mean of "a metric,
but in each case two or more metrics were significantly lower
than the other metrics. including some with higher weighting
factors.

In one the mine had four metrics that were 15-36%

higher than their means. but one metric with the highest
weighting factor was very low, thereby keeping the mine near
average. 

- Three mines (LW--6. LW-9. and ML-22) had four or five metrics
below their respetlive 'means'. including one in a highly
weighted metric that offset another highly weighted metric that
was significantly above its respective mean.

0 In one the mirIe's injury metrics we're all excellent,
and offset the citation metrics that were somewhat higher than
their respective means.

I In the final three mines MB-13. and ML-15). somewhat

elevated but lower-weighted metrics were offset by the high-
est-weighted metrics that were significantly lower than their
respective -means.

- intuitively, these are the types of perfonnances expected in the
middle 10% group. Trade'-offs among metrics occurs, but there
are no highly weighted metrics that have values much higher
than their means.

The worst-perfonning'10% SP1 mines. shown in Table 9. are
characterized as follows:

a For six of the mines LW--31. and M020).
:1 very high rate for 1H andfor 01100 1H got them on the
list. 

For five of the mines, a very high rate for got them on

the list. -

a Four mines had five elevated metrics versus the means for the
metrics. while three mines had four elevated metrics versus
their means.

Thus, poor performances on either the injury experience or the
citation experience can lead to targeting for interventions. or sev-
eral worse-than-average performances can earn greater scrutiny.

Table 7
Top 10% SP1 best-performing mines.
Mine ID SP1 NDI. IR EJ100111 551100111 01100 
Pilot mine 3 one 0.00 o.oo 1.00 o.oo o.oo
LW- 19 96.9 7.14 0.00 0.00 0.50 0.51 0.00
LW-26 96.7 032 0.62 0.60 1.76 0.81 0.00
LW-25 96.4 0.40 0.38 0.07 2.31 1.50 0.32
LW-14 95.0 2.61 133 0.13 2.47 1.74 0.00
Pilot mine 14 94.4 1 1.70 0.00 0.00 1.16 1.32 0.00
Pilot mine 12 94.0 3.97 0.00 0.00 4.21 3.25 0.00
LW}Pi[or Mine 28 92.3 2.52 1.44 1.82 2.51 0.91 0.00
LW-18 92.3 3.71 3.20 0.63 1.44 1.51 0.00
1110-17 91.9 3.42 0.00 0.00 6.07 4.92 0.00
Pilot mine 27 91.1 5.00 1.91 0.09 4.20 3.70 0.00
Scaled averages 73.2 5.00 5.00 5.00 5.00 5.00 5.00
Table 8
Middle 103.: SP1 average-performing mines.
Mine no SP1 NDL IR NFDL lR_ slvmoo cnoo 1H ssnoo IH 01100 
LW-6 74.9 2.51 3.83 0.86 3.44 2.71 7.43
1 74.4 9.77 6.45 1.98 5.09 3.10 3.59
MB--1 3 74.2 5.61 7.13 1.15 6.32 5.54 3.45
ML415 73.7 4.40 8.55 2.05 5.33 5.63 1.35
LW-7 73.5 3.17 12.08 4.58 6.08 2.07 0.00
ML--8 73.2 1.75 0.00 0.00 7.04 6.14 8.86
MB-23 72.4 12.18 7.26 1.46 7.23 9.10 0.93
ML-22 72 .2 4.43 0.00 0.00 5.81 4.83 9.75
LW--9 72 .2 2.96 4.70 0.96 5.54 2.70 7.33
MB-1 70.9 5.74 3.52 0.91 6.21 6.82 6.5 0
MB-25 70.5 0.93 0.00 0.00 6.07 6.34 10.42
5.00 5.00 5.00 5.00

Scaled averages 73.2 5.00 5.00

I

H. Klnliakodi. Lahy Groyson {Safety Science 49 (2011) 90fi--9II 91 1'

Table 9 
Bottom 10% SP1 poorest-pe rfonning mines.
Mine ID SP1 NDI. lR_ NFDL IR SIW100 IH S511 00 Ill 01100 ll-I
I.W-22 51.4 4.55 8.87 3.04 5.99 3.51 13.30
LW-31 45.0 - 4.84 5.54 1.17 6.57 7.81 17.77
MB-22 42.7 5.50 10.49 2.07 5.10 9.50 14.63
MB-16 39.7 4.89 4.66 23.63 -1.86 2.83 1.11
Mi.-2 30.9 4.31 6.02 21.98 7.26 7.07 4.10
R1342 29.1 4.30 7.56 27.60 3.52 4.45 0.55
28.6 1.96 8.10 27.46 4.07 4.72 - 0.84
M1344 2.8 3.85 14.69 1.02 8.37 12.45 32.09
MB-2 0.0 18.92 18.04 0.36 16.52 24.45 61.35
MB-8 0.0 7.41 0.00 280.48 7.03 6.84 15.80
MB-20 0.0 8.27 5.26 0.07 14.17 21.48 88.86
Scaled averages 73.2 5.00 5.00 5.00 5.00 - 5.00 5.00

Following discussions with representatives from Congressman

I Mille_r's office and jointly with several vice presidents in charge

of underground coal mine safety. the findings of the application

of the Safe Performance Index and its ability to target poor-perv

forming mines were given in testimony before the US House Edu-
cation and labor Committee on July 13. A, new screening method,
designed to replace theexisting POV process was included in the
Robert C. Miner Safety and Health Act of 2010. which uses
sir'niIar'metric's, with weighting factors to be determined through
interim ruiemaldng whenever the bill passes through the Congres-
sional processes. At present. the bill has not been passed by the US
House of Representatives, and in early 2011 it was introduced in
the US Senate. The methodology to target truly poor-performing
mines for heightened enforcement action would then be imple-
mented and its effectiveness as a screening tool could be
determined.

6. Conclusions

During 2007-2009, the authors used a. random. stratified pilot-

sample of 31 underground coal mines to develop the Safe Perfor-
mance lndex, which uses Mine Safety and Health Administration
injury data and citation data to assess the relative safety-related
risk of mines. Using 2009 data, the database was expai'1ded_to
107 mines. which is a 30% sampling of all underground coal mines
producing 10,000 tons or more'. Analyses demonstrated that th'e
methodology can be used to assist companies. M31-IA. or state
agencies in targeting mines with high risk for serious injuries
and elevated citations for remediation of their violation andlor in-
jury' experience. The results of analyses were presented at a hear-

ing conducted by the_US. House Education and Labor Committee,
and a similar methodology is now planned to he used for targeting
poor--performing mines for elevated enforcement action. Imple-
mentation will not occur until the Robert Miner Safety
and Health Act of 2010 is enacted. 

References

Emerson, 1., Esty. D.C.. Jalteh. M.. Kim C.. Levy. Mara. V.. tile Sheihinin, 
Srebotnjalt. T.. 2010. 2010 Environmental Performance Index. Yale University
Center for Environmental Law a Policy and Columbia University Center for
international Earth Science Information Network, p. 87, 


Graysuh. Kinilakodi. H.. Kecojevlc. V.. 2009. Pilot sample risk analysis for
underground coal mine fires and explosions using MS!-in citation data]. Safely
Science 47 (10). 

Kinilakodi. 2009. Analysis of Major Hazard Risk impacts on Underground Coal
Mine Safety Performance. M.S. Thesis. The State University.
University Paris, p. 119

Kinilakodi. H., Grayson, R.I.., 2011. Cllatloh-related reliability analysis for a pilot
sample of underground coal mines. Accident Analysis and lheventlon.


Mine Safety Iechrtologv and Training 2.006.. Improving M,in_e_ Safety
Technology and Training: Establishing US Global Leadership. R.I.. Grayson Chair.
National Mining Association. Washington, DC, p. 193.

MSI-M, 2010a. what is the meaning of significant and substantial? <http:h'
{accessed 23.07.10).

2010b. XIJI. Section 104(0) Citations and Orders. 
(accessed 28.07.10) [10401] Citations}.

smith. M.P.. 2010. Statement of Solicitor of Labor before the us Senate
Appropriations Committee. on Labor, Health and Human
Services,' Education and Related Agencies. May 20, 



US Congress, 2006. Mine Improvement and New Emergency Response Act 
act. 19.1.. 109-236). .

APPENDIX 

PROPOSED STATUTE

TO CREATE MINE ACCIDENT INVESTIGATION TEAMS

[By Delegates 

Introduced referred to the Committee on the Judiciary

1931, as amended by

A BILL to amend the Code of West Virginia,

adding thereto one new section, designated all

relating to the investigation of serious or fatal Inine

'accidents conducted by the Office of Miners' Health, Safety
and Training.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended be amended
by adding thereto one new section, designated all to
read as follows:

CHAPTER 22A. HEALTH, SAFETY AND TRAINING.

ARTICLE 1. OFFICE OF HEALTH, SAFETY AND 
ADMINISTRATION: ENFORCEMENT.
CREATION OF.A MINE ACCIDENT INVESTIGATION 

ASSIGNING DUTIES AS SET FORTH IN OTHER PROVISIONS

OF THIS CHAPTER AND CREATED WITHIN THIS

REQUIRING AND 
EFFECTIVE UPON PASSAGE.
Whenever a serious mine_ accident involving" a serious or
fatal injury takes place within any underground or surface
c'oal'I_nine, a team of mine inspectors, including the mine
inspector assigned to the mine where the accident occurred
I accident investigation team"), shall be

(hereinafter "mine

appointed by the Director of the Office of Miners'

Health, Safety and Training, and shall be responsible for
investigating such serious mine accidents.
Subsection applies to-
(1) A serious accident at a coalmine resulting in a
person receiving-
(A) A serious injury that has the reasonable
potential to cause death; or
(B) An injury causing the death of an individual
at a coal mine.
The

purposes the mine accident investigation team are

to-

Investigate all serious and fatal mine accidents

within the State of West Virginia;
(2) Determine the causes of all serious and fatal
mine accidents;
(3) Properly and thoroughly document all relevant records,

violations issued, and any other evidence deemed
2

10necessary by the Office of Miners' Health, Safety
and Training; and
Provide recommendations to the operator to remedy any

issued violations or orders.

Once notice of a serious mine accident is received by the

OMHST,

members of the mine accident investigation

team, appointed km; the Director of the Office of Miners'

Health, Safety and Training, must-

(1)

(2)

(4)

Inspect the site of the serious mine accident;

Determine the causes of the serious mine accident,

identifying~

Any and all factors that caused the accident;

(ii) Any and all contributing actions or inactions of
any party, including operators, contractors, or
other mine personnel;

Gather, document, and preserve all relevant evidence

for at least five years following the investigation,

unless necessary for any current or impending

litigation. This evidence includes photographs,

notes taken during the investigation,

witness statements, and all other evidence

deemed necessary by the Office of Miners'

Health, Safety and Training;

Prepare a detailed written report in compliance with

of the West Virginia Code, which then shall
3

presented to the Director of the Office of Miners'
Health, Safety and Training. The report shall include~
The causes of the serious mine accident;
(ii) All violations issued and the basis for such
violations;
Witnesses relied on in the investigation and
sufficient Contact information for each witness;
(iv) A list of all persons within or around the mine
at the time of the accident; and
(V) Copies of all pertinent records pertaining to
activities occurring at the mine for a period
of six months prior to the serious mine accident,
unless otherwise unavailable; and
(5) If necessary, testify at any hearing before the
Coal Mine Safety Board of Appeals regarding the
conditions of the accident site, any violations issued
and the bases for those violations, and all other
pertinent evidence obtained during the mine accident

investigation, which shall occur within a reasonable

time following the accident investigation.

_Each nember appointed ix) the mine accident investigation

team shall undergo initial training, as well as annual

refresher training. The structure _and content of the

training shall _be determined by the Director of the

Office of Miners' Health, Safety and Training.
4

Members of the mine accident investigation team shall

reasonable compensation their services, in

receive for

addition to regular' salaries received. under' W. Va. Code

and 22A-1-13. The amount for compensation shall
be determined by the Director of the Office of Miners'
Health, Safety and Training.

In addition to the duties and responsibilities set forth in
this section, the mine accident investigation 'team. shall
have" all _duties and responsibilities set forth in other

provisions of this chapter relating to mine accident

investigations.
The provisions of this section shall take effect upon

Health,

passage. The Director of" the Office_ of Miners'

Safety and Training may propose such rules and regulations,

pursuant to article three, chapter twenty~nine--a of 'this

Code, as he shall deem necessary to fully effectuate the

provisions of this section.

NOTE: The purpose of this bill is to authorize and direct the
Director of the Office of Miners' Health, Safety and Training to
create a mine accident investigation team to investigate serious
and fatal coal mine accidents with the goal of emsuring that
more efficient practices are undertaken when investigating and
documenting serious and fatal mine accidents. The bill creates
the mine accident investigation team, giving the Director of the
Office of Miners' Health, Safety and Training the discretion in
setting forth the structure. It also sets forth the duties,
training requirements, and reasonable compensation to be
provided to each member of the mine accident investigation team.
This bill contains a new section; therefore, strikethroughs and
underscoring have been omitted.

APPENDIX 

ROCK DUSTING: A JURISDICTIONAL SURVEY

Rock Dusting
A Jurisdictional Survey

I. Federal Practice
A. "864. Combustible materials and rock dusting

1. Accmnulations; Maintenance- Coal dust and other combustible materials
shall not accumulate in active workings or on electric equipment.

2. ?864(b)~ Water shallbe used_ in working places, particularly less than 40 feet
from ribs, roof, and floor, to minimize coal dust.

3. ?864(c)- Rock Dusting of All Areas of Underground Mine; Exceptions All areas
of the mine shall be rock dusted to within 40 feet of all working faces,
unless the dust is too wet or too high in incombustible content or it 'would
be unsafe.

4. ?864(d)- Distribution of Rock Dust; Places, Quantities- Rock dust goes on to the
top, floor, and sides of underground mines. The incombustible content
shall be not less than 65 per centum, but it shall be no less than 80 per
centum in return aircourses. If methane is present in any ventilating
current, the incombustible content is increased,

II. Practice of States
A. 

0 52 Pa. Stat. Ann. 690-239 
0 Title 52 P.S. Mines and Mining, Chapter 12. Bituminous Coal Mine
-- Safety Act of 2008, Chapter 2. General Requirements for Underground
Bituminous Mines
0 Method of 

(1) Dangerous accumulations of fine, dry coal dust shall be
removed from a mine or neutralized by the application of rock
dust, and all dry and dusty operating sections and haulageways
and the back entries for at least 1,000 feet outby the first active
working place in each operating section shall be kept Watered
down, rock dusted or dust allayed by such other methods as
may be approved by the department.

I (2) A mine or location in a mine that is too wet or too high in
incombustible content to initiate or propagate a coal dust
ignition need not be rock dusted during the time any of those
conditions prevail.

1

I (3) Coal dust and other dust in suspension in unusual quantities

shall be allayed by sprinkling or other dust allaying or
collecting devicesdry and dusty mine or section thereof, rock dust shall
be applied and maintained upon the roof, floor and sides of all
operating sections, haulage ways and parallel entries connected
thereto by open crosscuts. Back entries shall be rock dusted for

at least 1,000 feet out by the junction with the fiI'SlC active
working place.

I (2) Rock dust shall be so applied to include the last open
crosscut o'f rooms and entries and to within 40 feet of the faces.
In mines where mining is done by continuous--type mining
machinery, the distances from the face to which rock dust shall
be applied shall be the mining distance for one shift. if:

0 The active working place sliall be kept from clamp to
wet.

- (ii) After coal production on any shifts has ceased, an
application of rock dust shall be made in the exposed
area to within 40 feet of the face before additional"
mining is performed in the area.

(3) Rock dust shall be maintained in such quantity that the
incombustible content of the mine dust shall not be. less than
65%. .

Composition of rock dust. -- Rock dust shall not contain more than
5% by volume of quartz or free silica particles and shall be pulverized
so that 100% will pass through a 20--mesh screen and 70% or more
will pass through a 200-mesh screen.

0 B. Ohio

1. 1563.26- Rock Dusting; Testing of Dust Samples
0 All mines, except those that are too wet or too high in incornbustible
content to propagate an explosion, shall be rock dusted.

The rock dusting shall be done with such regularity so that
incombustible content of the adhering and lodging dust is not less
than 65%. I

0 When methane is present many ventilating current, such
incombustible content shall be not less than 65% plus one and
four-tenths per cent for each one tenth of one per cent of methane
so present.

0 The rock dust to be used shall be pulverized limestone or any other
material containing less than 5% combustible material. All dust shall be so
pulverized that it will all go through a sieve that has 20 openings to the
linear inch and at least 50% of such dust shall pass through a sieve with
two hundred openings to the linear inch. The rock dust shall not contain
more than 4% free silicon'_ and silicon dioxide.

0 The rock dust shall be distributed on top, bottom, and sides of all
haulageways, traveling ways, developing entries, and rooms to within 40
feet of face. Back entries shall be rock dusted for at least 1,000 feet out by
the junction with the first active entry. 

0 In mine where rock dusting is required, the superintendent shall see that a
dust sample is gathered at each sampling point from the roof, sides, and
-floor of all entries by a competent person once each 60 days and tested to
determine if any part of the mine requires redusting.

A record shall be kept in a' book furnished by the division of
mineral resources management for that purpose.

I I Such books shall be kept in the mine office and show the
location at which samples have been taken and the results
of the tests.

0 The distance between sampling points on haulageways and traveling ways
shall not exceed 2,000 feet, but in developing entries and in entries

producing coal fiom rooms or pillars and their parallel entries the distance .

between sampling points shall not exceed 500. feet.
0 No operator of a mine shall refuse or neglect to comply with this section.

C. Oklahoma .
0 ?417 establishes mandatory water sprinkler systems.

D. Illinois

There is no other mention of rock dusting .

CH 225 705--24.03- All underground mines, except those mines or areas of
mines in which the dust is too wet or too high in incombustible content to
propagate an explosion, shall be rock-dusted to within 40 feet of all faces

CH 705-? 24.04. (Chapter 225, Article 24) In mines partially rock-dusted or in
mines that are required to start rock-dusting, haulage ways and parallel entries
connected thereto by open crosscuts, shall be rock-dusted. Back entries shall
be roc1<--dusted for at least 1,000 feet outby the junction with the first active
entry. Inby this junction, the rooms, entries, and crosscuts, shall be rock-
dusted. Rock-dusting shall be started at once and completed as herein

provided, and the mine shall be rock-dusted as it develops and rock-dusting
shall be maintained to the shaft bottom or entrance.

E. Indiana
Nothing in Code on rock dusting.

F. Utah
0 Nothing in Code on rock dusting

G. Kentucky
352.060 (Title Chapter 352)-
0 The following rules shall govern in the rock-dusting of mines:

(1) All mines shall be roclodusted if conditions are found to be dusty
or hazardous, after-"proper inspection. If such conditions are found to
exist, then the commissioner shall require the necessary 
to make the mine, part of the mine, or section safe.

0 (2) Accurnulations of excessive loose coal and fine dry coal dust shall
be removed from the mine, and all operating sections kept thoroughly
rock-dusted, and the dust on' the mine floor allayed by methods
approved by the commissioner, but in every mine, or in any part or
section thereof, rock-dusting shall be applied to maintain at all times a
minimum percentage of 65% of noncombustible matter to within 40
feet of the faces, including last. open crosscuts, and under certain 
special conditions the department may require that places be rock-
dusted to the faces, and that additional rock--dust be added.

H. Wyoming
0 Title 30, Chapter 3, Article 1- 30-3-1 13- The inspector shall establish by

rule for underground coal mines, areas in which rock dusting is required,
required levels of incombustible content and other content and size
requirements for rock dusting. The inspector or his deputies may require that
sufficient samples of the mine dusts are taken in order to enforce this section.

1. Montana
in There is nothing -in the Code on this. This is perhaps because there are only
four active underground coal mines in the state.'

J. New Mexico

1 This figure is as of the last government report in 2011. See 

4

0 Chapter 69: Mines, Article 22: Rock Dust in 69-22-,1 through 69-
22-6 repealed by Laws 1987, ch. 234, 84.

- The lack of information in the Code may be because there is only one
underground coal operation in New Mexico?

K. West Virginia
1. - 

0 Dusty operating sections, haulage-ways, back-entries, and
conveyors shall be rock dusted.

I All mines that are too Wet or high in incombustible content
do not have to be rock dusted.

0 in dry mines, rock dust shall be applied to the roof, floor'
and sides of all operating sections, haulage-ways and parallel entries
connected thereto by crosscuts. Back-entries shall be dusted too. Rock
dust shall also be applied to include the last open crosscut of rooms and
entries, and to Within 40 feet of faces.

L. Maryland 
. -- (Title 5, Subtitle 

The mine foreman, personally or by an assistant shall: See that any
loose coal or other dangerous material is taken down or secured,
especially upon traveling ways and airways, standing water is drained
from passageways and working places, explosive and noxious gases
and dangerous accumulations of dust are removed, and rock dusting is
properly done so. that in general the Ventilation, stoppings, doors,
timbering, drainage, equipment, electrical installations, traveling and
airways, traekage, and other mine works and ways are in good
working order and reasonably safe condition;

M. Tennessee
- 0 There is nothing in Code.

N. Alabama
0 25-9-110 (Title 25, Chapter 9, Article 5)
Coal dust shall not be allowed to accumulate excessively along
conveyor lines, roadways, at loading points or at underground tipples,
but shall be loaded and sent out of the mines. Coal dust in dangerous

2 

5

quantities in abandoned areas shall, where practicable be rendered
inert.

Where mining operations raise an excessive amount of dust into
the air currents, water or water with a wetting agent added to it or
other effective methods shall be used to allay such dust at its source.

- ?25-9-111

0. Arkansas

0 Rock shall come within the following specifications:

Combustible matter not more than 5% by volume, quartz or
free silica particles not more than 5% by volume, not unduly
absorbent of moisture preferably light in color. Rock dust
shall be pulverized so that 100 will pass through a 20 mesh
screen 70% or more will pass- through a 200 mesh screen.

Rock dust shall be applied/maintained upon the top, floor, and
sides. of all. open places, passages, and haulageways in such 'quantities
that the incombustible. contentsof mine dust that could initiate or
propagate an explosion will not be less than 65%, but the
incornbustible content in the return air courses shall he no less than 
80%. Rock dust shall be so applied and maintained to include the last
open breakthrough of rooms and entries and to within 40 feet of the
faces or closer if necessary. . 

In back entries and air courses, rock dust barrier protection in. lieu
of generalized rock dusting may be authorized by the chief of the
division upon request. by the operator.

Where methane is present in any ventilating current, the percentage
of incornbustible content shall be increased one percent and four-
tenths percent for each one-tenth percent of methane where 65 and 80
percent, respectively, of incombustibles are required. 

Mines or locations in mines that are too wet or too high in
incombustible content for a coal dust explosion to initiate or propagate
are not required to be rock dusted during the time such conditions
prevail.

us There is nothing in the state's code.

P. Colorado

0 There is nothing in the state's code.

Q. Virginia .
Va. Code Ann. 45.1-161.235
0 Chapter 14.3. Requirements Applicable to Underground Coal Mines,
Article 14. Ventilation, Mine Gases and Other Hazardous Conditions

'1 (A) All underground areas of a mine, except those areaswhere
the coal dust is too wet or too high in incombustible content to
propagate an explosion, shall be "rock dusted to within forty
feet of all working faces, unless such areas are inaccessible or
unsafe to enter or unless the Chief, or his authorized
representative, permits an exception upon his finding that such
exception will not pose a hazard to the miners. All crosscuts
that are less than forty feet from working faces shall also be
rock dusted.

I (B) All other areas of a mine shall be rock dusted if conditions
are found to be so dusty as to constitute a hazard afier proper
inspection. Should such conditions be found to exist, the Chief,
or his authorized representative, shall. require the necessary
rock dusting to make the areas of the mine safe.

I (C) Coal dust, including float coal dust deposited on rock-
dusted surfaces, loose coal, and other combustible materials
shall be cleaned up and not be permitted to accumulate
excessively in active workings, or on electric equipment
therein.

- Va. Code Ann. 45.1-161.278 (West)
0 Title 45.1. Mines and Mining, Chapter 14.4. Requirements Applicable
to Surface Coal Mines 

I I (A) Where mining operations raise an excessive amount .of dust
into the air, water or water with wetting agent added to it or
other effective methods shall be used to allay such dust at its
sources.

I (B) Drilling in rock shall be done wet, or other means of dust
control shall be used. .

I (C) Loose coal, coal dust, oil, grease, and other combustible
materials shall not be permitted to accumulate excessively on
equipment or surface structures.

Alternatiues that are Feasible

A. Dust Explosibility Meter

B. Active machine mounted (continuous miner/road header) coal dust/methane
explosion suppression These systems are mounted on board continuous
7 mining machines and detect the presence of a methane ignition by means of light
sensors.

0 The electronic signal from the sensors is used to trigger the suppression
system, creating a barrier of flarne-suppressing material, thus containing the
flame in the immediate vicinity of the ignition and so preventing further
development and the propagation of a coal dust andlor methane explosion.

0 These commercial systems are widely applied in Europe.

C. Passive 'bag based' Stone Dust Barriers Systems"

0 The new stone dust bag system in various configurations makes use of a
previous concept of containing stone dust in a bag but incorporates a new
method of rupturing the bag based on materials properties, relative volumes
and a patented suspension device.

D. Active Explosion Barriers .
I The barrier's sensors detect the presence of an explosion and deploy to drench
it with water or inert dust.
B. More Rigorous Cutter Drum Maintenances
0 Be replacing bits and requiring the use of more water sprays on continuous
miners aimed at cooling the pick path, the risk of a spark is reduced-. I

IV. Practices of Other Countries".
This section outlines the methods used by the top ten coal-producing countries to prevent

coal dust explosions, 7

0 Stone Dust; 3

0 Passive and Active Explosion Barriers; 9

3 Smith. and JJ. do Control Strategiesfor Coai Dust and Methane Explosions in Underground Coal
Mines: current so uth African research and deveiopment.


4 id.

5 Cain, Peter. The Use of 5 tone Dust to Control Rock Dust Expiosions: A Review of in ternotionoi Practices.
-

5 NIOSH had an article entitled A Study Of Dust-Control Methods For Continuous Mining Of Cooi; however, I was
unable to access the article because I was not a member of the group.

7 

"Guideline for coal dust explosion prevention and 


9 Guideiine for coo! dust explosion prevention and suppression

8

0 Active Machine Mounted (continuous miner/road header) coal dust
suppression systems; 1?
0 Bag Barrier;"

1? 
1' 

9

APPENDIX 

RECOMMENDATIONS AND FINDINGS OF THE
INDEPENDENT INVESTIGATION
PANEL ON THE UPPER BIG BRANCH EXPLOSION

(May, 2011).






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Upper Bi Branch

The April 5, 2010, explosion: a failure
of basic coal mine safety practices

Report to the Governor

Governor's Independent Investigation Panel

J. Davitt McAteer
and associates

Katie Beal]
James A. Beck, 
Patrick C. McGinley
Celeste Monforton
Deborah Roberts
Beth Spence
Suzanne Weise

May 2011

This preliminary report sets out the findings of our investigation and
recommendations to date. The report is available electronically at
We will update this site with additional information
should it become available. The report also is available at 

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

Recommendations:

1. Require that every mine superintendent be
certified by the state agencyin underground 
mining and in carrying out the mine health and
safety laws with regard to individual mines. The
state agency should develop and administer an
examination, including an in-mine demonstra-
tion of the superintendent's skills. as part of the
certification process.

2. Require" a quarterly reportcertifying that all
safety standards are being complied with. Sanc-
tion for knowingly or negligently falsifying the
report would be the revocation of the mine
superintendent's certification.

3. Adopt provisions similar to those contained in
the Sarbanes--Oxley Act to make a Board of Di-
rectors accountable for mine safety compliance.
Boards of Directors should utilize. existing health
and safety committees or form a committee to
oversee health and safety aspects of the mines
under the company's control. The committee
would be responsible for ensuring compliance
with all federal and state regulations and would
be required to certify that the mines are in com-
pliance each quarter. A criminal penalty should
be assessed on these board members who
certify, negligently or willfully, that the mine is in
compliance when it is not.

Finding The Upper Big Branch mine explosion oc-
curred because of failures of three basic safety practices:
a properly functioning ventilation system; adherence

to federal and state rock dusting standards; and proper
maintenance of safety features on mine machinery. Al-
though many standards have been adopted to safeguard
the lives of miners, these basic systems should be the
primary concern of operators and enforcement officials.

Recommendatio_ns:

4-. Specifically use a "pattern of violation" and /or
"flagrant violation" authority for violations of

109

and RECOMMENDATIONS

key standards designed to prevent explosions,'
and apply meaningful sanctions, such as revok-
ing the operators ventilation plan. If an opera-
tor' plan is revoked for reckless or' repeated
behavior, he should be offered a brief period

of time five days) to make thelsafety case
to as to mine's ventilation plan
should not be revoked. [See "Making the Safety
Case"]

A procedure should be' adopted that would re-
quire mine operators repeatedly cited for failing
to follow their own approved ventilation plan
to notify MSHA and when subsequent
ventilation changes are completed and before
miners are allowed back underground. Affected
miners would be entitled to full compensation
by the operator at their regul-ar rates of pay' and
work schedule for the entire period they are
idled. -

6. Each mine shou-ld be required to maintain and
continuously update records of the amount of
rock dust purchased and the amount used daily.
Failure to maintain adequate records would
resultin a citation with a monetary fine..

7. and MSHA should undertake reorga-
nization on their ventilati on approval system to
ensure that plans and requirements are known
and understood by both the ventilation special-
ists as well as the inspectors.

Finding 21" century coal mine safety practices have
failed to keep pace with 21" century coal mine pro-
duction practices. improved technology is required to
ensure that the lives of miners are safeguarded.

Recommendations:

8. "Black box" technology must be instituted for
mining equipment, including shearers, continu-
ous miners, roof bolters, shuttle cars, motors,

1 For example. 30 CPR 75.370. the requirements to develop and follow a ventilation plan
approved by MSHA. that is designed to control methane and respirable dustahd suitable to
the conditions and mining systems in the mine; 30 CFR 75.400: the prohibition of accumulated
coal dust, Including float coal dust deposited on rocl-eduslnd surfaces.l0 138 ?0aL and other
combustible materials, In active workings including on equipment therein: 30 CFR 75.402: the
requirements for rock dusting; 30 CFR 75.403: the requirementto maintain 
content of rock dust.

110

10.

11.

conveyors and shields. The black boxes should
provide information regarding methane, oxygen,
carbon monoxide and coal dust levels.

Immediate implementation of a computerized,.

real-time electronic personnel-recording sys-
tem to formally identify and locate al'l personnel
who are underground at a given time, including
supervisory personnel. Redefine the state and
federal regulations to ensure that no one, includ-
ing management, go es underground without a
tagging device.

Each mine must be required to institute a "Com-
munication and Information Recording Center"
outside the underground portions of under-
ground mines and away from the working areas
of surface mines. These communications centers
would provide instantaneous communication

to to state agencies, to company-officials
and state and county emergency management
officials regarding safety and health.

Mine operators should be required to adopt

- computer-based monitoring of air quality, quan-

12.

13.

14.

15.

16.

tity and direction of flow throughout a mine. A
suitable system would alert not only the mine
operator and miners to impending danger, but it
would also alert the state and federal regulatory
agencies. Regulatory agencies would have the
authority to; shut down an operation based on
data provided by the system.

Current monitors for metha no. carbon monox-
ide and coal dust must be upgraded to include
memory chips, as well as instant communication
to the communications center.

Operators must be required to use real-time
continuous monitoring for explosive methane
gas and respirable dust in coal mines.

Mechanized rock dusting must be conducted in
all portions of underground mines, as well as the
installation of "passive barriers" to help stop ig-
nitions from turninginto large explosions, such
as occurred at Upper Big Branch.

Operators must assess the adequacy of rock dust
through direct readout explosibility meters and
submit these results electronically to regulatory
agencies.

The state inspector system for writing violations
must be converted from paper and pencil to a

computerized system. This system must be _ca-

17.

pable of generating reports for individual mines.

Electronic records should be maintained regard-
ing methane, intake and return air levels on all

coal producing sections for no less than seven
years. Had this' information been available,
investigators would have had data related to the
previous methane inundation at UBB.

18. The regulatory agencies should use ventilation
simulation models as part of their plan approval
and modification process. The simulation model
results for each mine would be part of the mine
file and available to for review before
commencing an inspection.

19. Mine operators should be required to install
equipment, such as seismographs, to monitor
geologic activity at or near their mining opera-
tions.

20-. MSHA and NIOSH should develop an approved
rescue vehicle for removing injured miners
safely from the mines._ State and federal agen-
cies should have a vehicle for removing injured
miners and victims- from a mine in a safe and ef--
ficient manner. Rescue workers should not have
to carry miners great distances underground.

Finding The examination system,
established in the early 19005 to.identil'y hazards and
take corrective actions, has in many instances, bec-ome a
meaningless exercise. Examiners are overly dependent.
on paper, and their examinations are characterized by

a monotonous routine and the reliance on "dittos" and
abbreviations. More evidence shows that certified
foremen, mine foremen and examiners at UBB were not
adequately trained to understand and perform their
safety inspections and how their recognition of hazards
provides essential information to assure miners' safety.

Recommendations

21. Pre-shift and on-shift examinations must be
computerized with the information transmit-
ted to regulatory agencies, much like coal truck
weights are transmitted to the Department of
Transportation one daily basis.

The West Virginia Office of Miner's Health Safety
and Training should re-double its efforts to
ensure that all examiners are trained, and tested
as many times as necessary, including in-mine
demonstrations of their skills, to ensure the
examiners understand their duties and perform
them as they should be performed.

The West Virginia Office of Miners' Health,
Safety and Training should focus training ef-
forts on those mines in which mine operators
are found to be lax on safety training. MSHA and

22.

23.

the state should have the authority to revoke
the licenses of habitual offenders, for those who
falsify records and for flagrant violations.

24. MSHA and the State age'ncy should provide an-
nual training to miners on their statutory rights
under the Mine Act and applicable state mine
safety laws. This curriculum should outline the

- benefits of designating a miners' representative.

25. Digital photographs from recent inspections and
other appropriate visual aids should be used to
demonstrate to miners, managers and inspec-
tors acceptable and non-acceptable mining
equipment and conditions.

26. Federal and state agencies should undertake an
aggressive campaign to undermine the "safety
or inaccuracies -that emerged during the

UBB investigation. Agencies should dispel th'ese
inaccuracies on federal and state agency web-
sites and incorporate "myth busters" into min-
ers' training. A few examples of the inaccuracies
that emerged during interviews with miners and
bosses include:

a) a proper air velocity reading can be
taken instantaneously;

b] a CH4 monitor on a mining machine
can be disconnected if it is' defective or keeps
alarming, and the operator is allowed, to run coal
for up to 2-4' hours while waiting for a new'moni-
tor to be installed;

c) a miner should not don an SCSR until
he knows it's really an emergency or when a
boss tells him to don it;

d] a miner can make a run by himself",
without a CH4 detector, because only a boss can
be certified to carry a spotter;

e) redhat miners can be left' by them-
selves while a boss goes ahead of them to check
for hazardous conditions.-

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

111

Recommendations:
2'7. Existing laws and regulations must be strin-

gently and effectively enforc.ed. Supervisors
and managers are responsible for ensuring' that
front-line inspectors are provided equipment,

tools, training and managenient support to suc-

ceed at their jobs.

28. inspectors are responsible for elevating to their

supervisors problems or concerns that the
inspectors believe impede their ability to en-
force the law. Likewise, supervisors and district
managers are responsible for elevating issues to
senior officials in the agency.

29. When either state enforcement agencies or

MSHA recognize a significant or persistent prob-
lem at a mine, the agencies should coordinate
their responses. State and MSHA district offices
should meet periodically to review problematic
mines and formulate strategies to best protect

- miners. Cooperative efforts would maximizethe
effectiveness of the agencies against recalcitrant
violators.

30. MSHA should use its resources, and experienced

and talented personnel to bolster its ability to
notice the warning signs and see the big picture
at mining operations with persistent health. and
safety problems.

31. should modify inspector-s' work a-s-

signments to ensure that mines covering a large
geographic area have an appropriate number of
inspectors assigned to them, and that all manda-
tory inspections are completed.

32. Management and labor in the agencies must

discuss and negotiate terms to provide more
flexibility for the days and hours in which mine
inspections are conducted. If inspectors' work
shifts are extended because of travel distance
to the mine or demands at the mine, it is not
unusual for the employee to complete 40 hours
of work by Thursday. Currently, inspections on
Fridays, Saturdays and Sundays are somewhat
infrequent, but should be encouraged. An effec-
tive mine safety enforcement system should be
flexible enough to facilitate inspections any day
of the week, at any hour of the day.

33. The current law, which states that no mine

operator or anyone else should provide advance
notice for federal mine safety and health inspec-
tors, should be strengthened. Such a violation
shouldconstitute a felony.

112

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

Recommendations:

34. Government officials must ensure that adjudi-
cating bodies have the personnel and resources
necessary for speedy resolution of contested
citations and penalties.

35. Government officials must implement alterna-
tive dispute resolution mechanisms with appro~
priate means for worker involvement.

Finding' #7 Miners' rights to a safe workplace' are com-
promised when the operate r's commitment to produc--
tion comes at the cost of safety. Workers should not be
penalized if operators fail to follow safety requirements
so that mine rs' interests can be separated from the op-
erator's interest.

Recommendations:

36. State and federal officials must ensure that min- 

ers are aware of the protections afforded under
state and federal law. An ongoing effort should
be made to re-educate miners about the exis-
tence of the MSHA hotiine and the state hotline
and about the protections afforded them if they
report unsafe conditions.

37. When a mine is closed by a state or federal
inspector's order, all affected miners would be
entitled to full compensation by' the operator at
their regular rates of pay and work schedule for
the entire period they are idled.

Finding The emergency response to the Upper Big

Branch disaster raised concerns about how decision-

making was conducted in the Command Center and the
manner in which mine rescue teams were deployed
underground. Standard protocols were not followed,
effective records were not kept and rescuers' lives were
placed in jeopardy.

Recommendations:

38. The mining industry, MSHA, a_nd West Virginia
should adopt the National incident Manage-
ment System'[NiMS) Incident Command Model,
a nationally recognized emergency incident
management system, to improve coordination,
cooperation and communication between public
and private entities.

39. Protocols should be established and followed
with regard to mine rescue and recovery, using
lessons learned and best practices identified
from other emergency response events.

40. The one-toeone backup system for mine rescue
personnel, which is already established proto-
col. is absolutely critical for the safety of these
volunteers. 

41. The mine rescue community should convene a
summit-of mine rescue team members, in par-
ticular, individuals who responded to the mine
emergency incidents from 2006 to the present,
to discuss the state of the U.S. mine rescue sys-
tem. Advisory guidelines shouldbe written for
mine rescue teams.

42. MSHA and West Virginia should require a digital
recording of the activities and communications
in a mine emergency command center. Briefings
and debriefings of mine rescue team person-
nel also should be recorded. The current paper
and pencil method fails to produce a thorough
record of key data and decision points. Such a
record is necessary to conduct a thorough inves-
tigation, assess the effectiveness of existing mine
rescue operations and contribute to training
curriculum for advanced mine rescue personnel.

43. Mine operators' emergency response plans
(ERPs) must be treated more than just more
paperwork. ERPs should be developed col-
laboratively with miners, theirfamilies, local
responders, and mine rescue team members,
and revised based on mine-specific drills and
table-top exercises.

Finding Investigations of major mining disasters
must be conducted in an open, independent and trans-
parent manner that inspires public trust in the fact-find-
ing process and the conclusions that are reached.

Recommendations:

44. The U. S. Department of Labor should adopt
a public investigation process for major mine
disasters. Procedures should be established to
provide for public hearings, including interviews
of witnesses.

45. If the investigations continue to be under the
direction, the agency should have
subpoena power to compel witnesses to ap-
pear to testify under oath and for companies
and individuals to produce evidence, including
documents, data, correspondence and physical
evidence.

46. Explicit rights should be provided to any indi-

vidual who is willing to speak with or provide

a statement to MSHA, the state agency or the
independent panel during an accident investiga-
tion, to do so without the presence, involvement
or knowledge of the operator or the operator's

agents or attorneys.
47.

Rights should be granted to a deceased miner's

immediate next-of-kin to name an individual to
serve as a miners' representative in such inves-

tigations.
48.

A coordinated, formal debriefing of all mine

rescue team members who respond to a major
mine emergency should be conducted within a
month of the event. The objectives of the ass em-

bly would include offering-counsel on post-trau-
matic stress, discussing what worked well and
what didn't in their mine emergency response, 
and identifying team members whose testimony
would be helpful to accident investigators.

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

training.

50.

51.

113

Recommendations:
49.

SCSR training should be realistic and conducted
in actual mining situations, such as riding in a
mantrip and working on a longwall. Itshould
incorporate a variety of actual in-mine sce-
narios for which the SCSR must be donned and
activated. The training should emphasize the
importance of activating' the SCSR at the very
first warning of an emergency.

SCRS training should be conducted quarterly,
instead of annually.

MSHA, and NIOSH should develop a
program to measure and evaluate the effective-.
ness of training provided by certified trainers.

Finding #11: The' prevalence of coal workers' pneumo-
coniosis among. the deceased Upper Big Branch miners
is both surprising and troubling. -

Recommendations:
52.

NIOSH, MSHA and the mining indus-
try should adopt before the end of 201 1 rules to:
reduce the permissible exposure limit (PEL) for
coal mine dust to 0.09 mg/m3; reduce the PEL
for silica to 0.05 mg/m3; and mandate
continuous dust verification of mine
operators' dust control plans at normal produc-
tion at least equal to' the average produc-
tion reco rded for the most' recent 30 production
shifts), and single--shift sampling.

United States Senator Robert C. 

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

In one of his last commentar-
ies, Senator lamented the loss
of the 29 miners in the Upper Big
Branch disaster.

"Reflecting on President John
F. Kennedy's death, Robert F. Ken-
nedy once said, 'Tragedy is a tool
for the living to gain wisdom," he
wrote.

Senator also said, "As
West Virginians, our birthright is

November 20, 1917

- lune 23, 2010

Coal brings much-needed
jobs and revenue to our economy.
But the industry has a larger foot-
print, including inherent respo'n-
sibilities that 'must be acknowl-
edged by the industry.

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

"The old chestnut that 'coal
is West Virginia's greatest natu-
ral resource' deserves revision. I
believe that our people are West
Virginia's most valuable resource.
We must demand to be treated as
such?