POV Process Seen as Factor in Some Mine Shutdowns

The Mine Safety and Health Administration’s Pattern of Violation (POV) enforcement program may have directly triggered the demise of seven underground mines and significantly impacted management decisions to shutter at least some of 23 others.

MSHA’s POV program was launched in 2007. Since then, 89 mines have gotten caught up in the program. Of these, seven have faced the full force of the agency’s dreaded POV enforcement weapon. Only one of the seven, Pocahontas Coal Co.’s Affinity Mine, remains active. Sixteen of the 89 mines are repeat alleged offenders, and three ‒ Rhino Eastern, LLC’s Eagle #1, D & C Mining Corp’s mine of the same name, and Argus Energy WV, LLC’s Deep Mine #8 ‒ have gone around three times. 

Within 12 months after MSHA enforcement began under either a POV or a Potential POV (PPOV) notice, the operators of six coal mines and a Colorado silver mine informed the agency they planned to end active operations. The short time lapse between the launch of enforcement and management’s notice strongly suggests that either heightened enforcement as a result of the POV/PPOV designation or the threat of it played a pivotal role in the decision.

The seven mines are Bledsoe Coal Corp.’s #4; Bardo Mining, LLC’s Bardo #1; GCC Energy’s King I; Snapco, Inc’s Mine No. 2; Coal Riving Mining, LLC’s Fork Creek No. 1; Solid Fuel, Inc.’s No. 1; and Star Mine Operations, LLC’s Revenue Mine. All are abandoned underground coal operations, except Revenue, which is listed in MSHA’s mine retrieval system as a nonproducing underground silver mine. The Fork Creek and Revenue mines were POV designees.

The 23 other mines went dark 12-36 months after MSHA’s POV/PPOV enforcement hammer began, a time frame also sufficiently short to suggest enforcement impacted management’s inactivation decision. This is especially so for mines whose status changed within 16 months: The New West Virginia Mining Co.’s Apache; Manalapan Mining Co.’s RB #12; Commonwealth Mining, LLC’s No. 1 Washer; Excel Mining, LLC’s Mine No. 2; and Brody Mining, LLC’s No. 1. As with the seven mines above, all these are underground coal mines with one exception: Commonwealth’s Washer plant is a facility coal operation. Brody No. 1, now listed as nonproducing, made MSHA’s POV list.

The most notorious PPOV mine is Performance Coal’s Upper Big Branch-South (UBB) operation, which received the designation in the fall of 2007. By the time of the April 2010 explosion that killed 29 miners, the mine had shed the label. Nevertheless, it should have been relisted in the fall of 2009. After initially denying that UBB had met the PPOV criteria, the agency fessed up eight days following the tragedy after media prodding initiated by the mining newsletter Sharpe’s Point. The oversight was officially attributed to a “computer programming error.” We’ll never know if the disaster could have been prevented as a result of the additional compliance scrutiny a PPOV listing would have triggered. The mine was officially abandoned in September 2012. UBB is in West Virginia, home to 32 of the POV/PPOV designated mines. Kentucky, another Central Appalachian state, had 25.

Of the 77 POV/PPOV listed coal mines, 62 (81%) have gone into temporarily idled (5), nonproducing (16), or abandoned (41) status. While, as noted, MSHA enforcement surely played a role in some of these mines’ demise, the severe downturn plaguing the sector must surely be seen as the most significant driving force behind most of these shutdowns.

In the metal/non-metal (M/NM) sector, besides the Revenue Mine, 13 others have gotten the POV or PPOV tag since 2007. Twelve remain active. Like Revenue, Genesis, Inc’s Troy Mine is another underground silver operation listed as nonproducing. Of the total M/NM group, three are cement plants, nine are metal mines, and two are nonmetal operations: Carmeuse Lime and Stone, Inc.’s Black River lime mine and Celite Corp.’s Lompoc Plant, which produces diatomaceous earth.

MSHA’s POV authority derives from Section 104(e) of the Mine Act. The provision is potent in large part because of its potential to severely disrupt mining operations. At POV-listed mines, any inspection within 90 days during which a significant and substantial (S&S) violation is written results in an order withdrawing personnel from areas of the mine affected by the alleged violation until it is abated. An S&S violation is one that could reasonably be expected to lead to a serious injury or illness. The only way to become delisted is to go through an inspection free of S&S citations or to have no withdrawal orders issued within 90 days of the date of the POV notice.

MSHA’s implementing regulation went into effect in 1991. However, it was not enforced until three underground mine tragedies in 2006 that killed 19 coal miners focused renewed attention on mine safety. Under the regulation, mines with a high number of significant and substantial (S&S) violations were notified that they had the potential to become listed as POV mines. Any mine so designated was expected to develop and implement a corrective action plan to cut its S&S violation frequency rate. Over the next 90 days, MSHA monitored the mine for improvement and if it fell short, it was issued a POV notice. However, because just one mine received the POV black mark, the regulation was judged as ineffective.

As a result, the rule was amended, with the changes going into effect in March 2013. A significant change allowed MSHA to invoke a POV listing for alleged S&S citations. Under the previous iteration, only S&S violations that had become final orders were counted. The agency made the change because it believed some operators delayed judgment day on the S&S allegations against them through litigation. In fact, the POV status of the one mine placed on pattern status under the old system was removed when it successfully fought some of the S&S citations after exercising its due process right to challenge them. The new rule also removed the PPOV process altogether, replacing it with an on-line tool every operator could monitor to independently check the POV status of their mine. The amended rule also established general criteria and procedures MSHA would use to identify pattern mines. A coalition of mine operators sued MSHA over its new procedures, and that litigation remains ongoing.

No mine was identified for POV status this year, a testament to improved compliance, according to MSHA, which credits the regulation and a “culture change” in the industry for the achievement. However, the overwhelming majority of the POV/PPOV listed mines, 68 in all, have been underground coal operations, a mining subsector especially hard hit by tough economic times. These mines operate in a complex, highly regulated environment that makes alleged S&S tickets more likely. It’s certainly good news that MSHA came up empty in its screening for POV mines this year. But let’s not get carried away; the agency simply had far fewer mines from the underground coal sector to draw from.

Copyright 2016, James Sharpe, CIH. All Rights Reserved.