W.Va.'s new coal dust standards go unenforced
CHARLESTON, W.Va. -- Nearly three years after the Upper Big Branch Mine Disaster, West Virginia regulators still haven't begun citing and fining mine operators who violate new standards aimed at preventing coal-dust explosions, according to interviews and records obtained under the state Freedom of Information Act.
The new standards were mandated by an executive order issued by then-Gov. Joe Manchin just nine days after the April 5, 2010, explosion that killed 29 miners.
Lawmakers later added the standards, mandating more crushed limestone be used to control the buildup of explosive coal dust underground, to state law. Current Gov. Earl Ray Tomblin touted the change as a major part of what he says was a "comprehensive mine safety bill."
But despite finding hundreds of instances over the last 18 months where mining operations didn't comply with the new standards, the state Office of Miners' Health, Safety and Training has not issued even a single citation for violating the dust standards, records and interviews show.
"We haven't been writing any paper," said Randy Harris, a consultant who has been helping the state agency develop its coal-dust sampling program.
Tomblin administration officials and coal industry representatives downplay the issue. They say mining companies have greatly stepped up dust-control practices since Upper Big Branch, even without any enforcement by state inspectors.
Still, longtime mine safety advocate Davitt McAteer said last week that the state's new standards to require more "rock dusting" at underground mines mean little if operators face no consequences for not complying.
"It's a charade," said McAteer, who led an independent team Manchin appointed to investigate Upper Big Branch. "They are going through some motions, but nothing has happened.
"This dust issue was absolutely the most critical failure at the Upper Big Branch Mine and three years later, there's still not a prevention measure in place to keep it from occurring again."
Coal dust is highly explosive, and can turn what might be minor ignitions of methane gas in underground mines into massive blasts that take many more lives.
Federal and state investigators, McAteer's independent team, and United Mine Workers experts all concluded that's exactly what happened at Upper Big Branch, where a small methane spark in the longwall-mining section ignited coal dust that Massey Energy had allowed to accumulate throughout the mine.
Mine safety experts have known for decades how to prevent coal dust explosions: Apply large amounts of "rock dust," usually powdered limestone, to wall and floor surfaces underground. Even if there is an explosion, the rock dust mixes with coal dust and helps prevent it from fueling a larger blast.
One key way federal regulators judge whether a mine is adequately rock-dusted is to take samples of mine dust and measure the "incombustible content" of that dust. At Upper Big Branch, U.S. Mine Safety and Health Administration experts found that more than 78 percent of the 1,800 dust samples they took did not comply with standards in place at the time of the explosion.
"The amount of rock dust being maintained on mine surfaces at the time of the explosion was insufficient to stop a coal dust explosion," the state agency said in its own February 2012 report on the Upper Big Branch disaster. "Periodic applications of rock dust over accumulating fine coal dust are necessary to render such dust harmless."
In its May 2011 report, McAteer's team found that West Virginia's state mine safety inspectors "failed to recognize" the extent of the rock-dusting failures at Upper Big Branch prior to the explosion. Among other problems, McAteer's team noted, the state at the time did not take dust samples and, even if it did, had no laboratory where the samples could be analyzed.
'Take immediate steps'
On April 14, 2010, Manchin held a news conference at the state Capitol. It was nine days after the Upper Big Branch Mine blew up.
Manchin instructed then-mine safety director Ron Wooten to "order the immediate inspection of all active underground coal mines in the state." In an executive order issued that day, Manchin required state mine inspectors to "collect dust samples in the mines where rock dust is required to be applied and maintained." The governor directed Wooten to "take immediate steps to secure necessary equipment and personnel to test dust samples collected by mine inspectors."
"They'll start with the mines that have been cited repeatedly for these combustion risks during the last year, and take immediate steps to ensure compliance with the law," Manchin told reporters at the time.
Five months later, when asked for the results of those dust-sampling inspections, state officials were forced to admit that no such sampling had been performed -- and that the state had not yet gotten a dust-testing laboratory up and running.
Lawmakers provided the agency with a more than $400,000 supplemental appropriation that July to fund eight new positions, seven vehicles and equipment required for the rock-dust testing. But when they began plans to set up the laboratory in their Washington Street offices, the governor's office told the agency to instead move the lab to the former Dow tech center in South Charleston, where Manchin had been promoting a "West Virginia Education, Research and Technology Park."
"We do not yet have a target date for completion," an agency spokeswoman said in September 2010. "But we are moving forward and will establish this testing facility as quickly as we are able to do so."
'The mines are white today'
Last week, new state mine safety chief Eugene White scrolled through a spreadsheet showing the results of hundreds of coal-dust samples taken by his agency's inspectors over the last 18 months.
Late last year, Tomblin promoted White from his job as deputy director, to replace C.A. Phillips, who retired. White has spent more than a decade with the agency, and he was among the first mine rescue team members to arrive and go underground at Upper Big Branch. He's seen what the failure to rock-dust a mine can do -- and he says he's seen what the industry has done to improve since that explosion.
"We learned a lesson at Upper Big Branch," White said. "In my opinion, the mines are white today," meaning a layer of rock-dust is visible on top of black coal dust underground.
But as White scrolled through the state's sampling data, there were plenty of mines where the samples were marked as having "failed" the state's standards. The state's data, though, included no information about citations, enforcement orders or fines.
"We have not cited any of these samples as of this date," White said. "This is still a work in progress. We're working on it."
Over the last three years, the state has spent nearly $850,000 on its rock-dust sampling program, if you include the costs of setting up the laboratory and paying new personnel. Elaborate new procedures have been established for taking samples and analyzing them at the state's new lab.
State officials say that, so far, more than 5,500 dust samples have been taken and analyzed since August 2011. Of those, nearly 80 percent complied with the state's new standard. But 1,125 samples -- more than one-fifth of the total -- did not comply. That means, on average, two samples per day violated the dust-control standard somewhere in West Virginia's coalfields.
Chris Hamilton, vice president for the West Virginia Coal Association, praised the industry's performance on rock-dusting issues.
"I do not think there is anything unusual about the results," Hamilton said last week. "The target is 100 percent compliance, but that's a target, and in this particular area, the entire industry is doing a great job.
"There is more rock-dusting than ever before," Hamilton said. "The industry has learned some things over the past couple of years. It's just one of those areas where the industry has returned back to basics."
Hamilton said he believes the state "has a sound, rational basis" for not yet issuing citations when rock-dusting samples show violations of the state's standards.
"I embrace their efforts," Hamilton said. "This isn't all about being confrontational or heavy-handed."
Harris, the mine safety agency's consultant, said that, while inspectors aren't citing mine operators whose samples don't comply with the state's rock-dusting standards, state officials are notifying operators of the sample results and pushing them to clean up any dust-control problems.
"We've been harassing them to death," Harris said.
And White emphasized that inspectors continue to cite mine operators when their "visual inspections" indicate inadequate rock-dusting has been done.
But in their report on Upper Big Branch, the McAteer team questioned whether those sorts of visual inspections were adequate.
"Unfortunately, the [state mine safety agency] failed to recognize that the mine was not adequately rock dusted in part because their inspectors relied on visual inspections," the McAteer report said. "Perhaps the inspectors recognized the need for rock dusting, but did not grasp the severity of the problem at UBB. Or, most likely, the officials did not connect the dots so as to see the complete picture and recognize the overall heightened danger presented by each independent violation."
When McAteer released his report in May 2011, Tomblin's office issued a statement that emphasized the state's work to improve its rock-dusting inspections.
"We have recently hired new inspectors to focus on making sure that mines are properly rock dusted," the governor said. "Those inspectors are currently in training.
"The OMHS&T's labor for rock dust analysis is in place and is expected to begin operating around July 1 of this year, once training has been completed," Tomblin said. "For the first time in the history of our state, the OMHS&T will undertake a scientific analysis of the rock dust present in mines."
'Shame on them'
While mine safety experts have known for decades how to control coal dust explosions, they've also known for many years that rock-dusting standards in place at the time of Upper Big Branch were inadequate.
Under the 1969 federal Coal Mine Health and Safety Act, coal companies were required to apply enough rock dust so that the "incombustible content" of mine dust in clear-air intake tunnels made up at least 65 percent of all dust measured. In "return air" tunnels -- those more likely to have dust in them -- rock-dusting must be adequate to make the incombustible content 80 percent of all dust measured.
But that standard was based on coal-dust surveys of U.S. mines conducted in the 1920s. More recent studies by the National Institute for Occupational Safety and Health, conducted after a series of disasters in 2006, found that more modern and highly mechanized mining practices produce significantly finer coal dust that requires more rock dust to control.
NIOSH experts urged MSHA in 2006 and again in 2009 to update the federal rock-dusting standards. But MSHA officials did not act until after Upper Big Branch. Federal officials published an emergency rule in September 2010 and a final rule in June 2011 that requires 80 percent incombustible content in all underground mine tunnels.
In his post-Upper Big Branch executive order, Manchin put the state on track to implement a tougher coal-dust standard more quickly than the federal government. The order mandated that the 80-percent-combustible-content standard apply in all underground mine tunnels in West Virginia. And Manchin -- who as a U.S. Senator frequently criticizes what he calls in-action by Washington -- emphasized at his April 14, 2010, press conference, "I'm going to do everything I can in this state. I can't wait until the feds start moving."
Last year, when lawmakers passed a much-touted mine safety bill proposed by Tomblin, they included the tougher rock-dusting standards, writing Manchin's executive order into the state statute. When Tomblin signed the bill in late March, the headline on the governor's office news release noted, "Reforms include explosion-stopping rock dust."
Four months after Tomblin signed the bill, on July 31, 2012, the state mine safety office filed a rule aimed at helping to implement the rock-dusting provisions of the legislation. Citing what happened at Upper Big Branch, then-mine safety chief C.A. Phillips sought to implement the measure immediately, as an "emergency rule."
Hamilton and the Coal Association protested that "no emergency situation exists" to justify bypassing normal rulemaking procedures. The industry also complained that the state was duplicating dust-sampling already being performed by the federal government.
"We question whether this dual enforcement scheme under two different sets of procedures and standards will ultimately result in two different enforcement and compliance programs for in-state coal producers to reconcile and comply," Hamilton wrote in a letter to the state. "This will likely result in confusion and could serve to frustrate compliance programs."
At the same time, Joel Watts, administrator of the state Board of Coal Mine Health and Safety, objected that the board members had not yet approved the emergency rule.
Phillips, who as then-mine safety director was an ex-officio member of the board, responded by calling an "emergency meeting" to discuss the board's position on the rule and to "determine the validity" of the letter Watts wrote objecting to the rule.
Not enough members showed up for that Sept. 10 meeting, so the board did not have a quorum. Later that day, and without formal explanation, mine safety agency lawyer Jack Rife submitted a letter to Secretary of State Natalie Tennant withdrawing the rule.
At the time, mine safety office spokeswoman Leslie Fitzwater said the move would provide "an opportunity to improve the rules and make them more effective."
"We will revisit the proposed rules, and, in the interim, will continue the discussion with all parties who are committed to the same goals," Fitzwater said in a prepared statement at the time. "In the meantime, the withdrawal of these rules will not diminish our enforcement efforts, including compliance of rock-dusting regulations."
As of Friday afternoon, the rock-dusting rule still had not been re-issued, either in draft or final form.
And Rife said last week that state officials want to have the rule in place before they begin taking enforcement actions against mine operations where dust samples aren't in compliance. The rule, Rife said, will help state lawyers defend citations when coal companies appeal them.
"We spent a year and a half or two years gearing up, so we can withstand the scrutiny we expect we're going to get," Rife said.
But Dennis O'Dell, safety director for the United Mine Workers, said the state "has been dragging its feet too long."
"Someone needs to move forward with this," O'Dell said. "If the state is finding violations and they are not issuing citations, then shame on them. Why even do it if you're not going to use it as an enforcement tool?" Reach Ken Ward Jr. at firstname.lastname@example.org or 304-348-1702.