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On Making Mining Safer, Part Two, Or, “Can We Appeal Safety To Death?” April 23, 2010

Filed under: Accountability,Labor Issues,Mine Safety,Politics,US Elections — fakeconsultant @ 3:48 pm
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It was about a week ago that we last got together to talk about safety in coal mines, and we have some new developments in the story that deserve a bit more of your attention.

As we discussed last time, there are a huge number of hazards inherent in the operations of underground coal mines, and there are a series of “mitigators” that can be applied to reduce those hazards.

Ironically, the biggest hazard these miners face today might not be underground at all.

In today’s story we’ll consider the possibility that the most dangerous location in the mining industry might actually be at the Federal Mine Safety and Health Review Commission, where an enormous backlog in enforcement actions is keeping dangerous mines open that might otherwise be closed.

It’s a “bad news, good news” story—but it really does have a potential happy ending, and with a bit of pressure, we can actually make life a whole lot better for miners, and their families, all across the country.

“A Texas rancher shot a man dead and telegraphed a slick lawyer in Fort Worth, three hundred miles away, offering a $5000 fee. The attorney wired back, “Leaving for your town on next train, bringing three eye-witnesses.””

–Bennett Cerf, A Texas Sampler

In the previous story we had a long conversation about how coal is mined and how fines and closures can help to, shall we say, “provide the proper motivation” for mine operators.

Congress seems to agree, and after a series of incidents in 2006 that killed a number of miners new legislation was put into place that allows the Mine Safety and Health Administration (MSHA) to close a mine, temporarily, if it should be warranted.

However, this can only occur if MSHA can establish that the mining operation has a history of ongoing violations that officially qualify as a Pattern of Violations (POV), which basically comes down to this:

“…(1) a history of repeated significant and substantial violations of a particular standard; (2) a history of repeated significant and substantial violations of standards related to the same hazard; or (3) a history of repeated significant and substantial violations caused by unwarrantable failure to comply…”

Once that pattern has been legally established, any additional findings of “serious and substantial” violations (S&S is the fancy insider term) in that mine by MSHA inspectors become closure orders, meaning that the miners have to either “withdraw” from the area that’s in violation, or that the entire mine may be closed down until things are fixed.

Mines that have new S&S violations while in this POV status also get bigger fines for each violation than if they weren’t in that position.

Would you be amazed if I told you there’s a loophole available to mine owners that can keep them out of this status?

I didn’t think so…and there is: violations don’t count unless and until they are fully adjudicated, which means administrative law judges have to rule on the merits of each and every violation that a mine operator might choose to appeal (a service provided by the independent Federal Mine Safety and Health Review Commission, hereinafter referred to as “the Commission”)…and by an amazing coincidence, the number of appeals of violations since the 2006 legislation went into effect is suddenly way up.

There has also been a lot more actual enforcement over at MSHA these days than in days past, and the number of enforcement actions brought by the agency has climbed from about 1500 cases a year in the Bush Administration’s first term to about 14,000 cases in Fiscal Year 2009; the total amount of fines assessed grew from $25 million to almost $200 million over the same time period.

The Commission’s administrative law judges also have to rule on the settlements that result from cases being worked out by negotiation between MSHA and mine operators; this is to try and ensure that MSHA doesn’t get too cozy with mine operators when making deals, a problem that has been attributed to the agency over the years.

The combination of these three factors has created, as of this writing, a backlog of about 16,000 unresolved cases that are moving around between MSHA and the Commission…and mine operators seem to have figured out that appeals are the smart way to game the process, as the outcome of any enforcement or POV designation is delayed by at least a year, and any potential penalty is likely to be reduced during the appeals process, often by as much as one-half.

Mine operators, by the way, disagree with this analysis: they would tell you that before the 2006 legislation the informal conferences they used to be able to have with MSHA inspectors helped to keep many potential violation cases out of the adjudication process entirely, keeping the caseloads, and backlogs, low.

Those on the other side would basically respond that the conferences were indeed an effective tool for mine operators to make enforcement orders go away, quickly and quietly; unfortunately, it wasn’t doing much to improve miners’ safety.

There are some numbers that we can look at that tell us a few things:

There is a group of 32 coal mines that would probably be in POV status today if it wasn’t for the fact that they have lots of violations that are still in the appeals process. Operators like Patriot Coal Company and Massey Energy have mines that are appealing more than 50% of the violations MSHA hands out, and a couple of operators have coal mines that contest up to 72% of violations.

It’s not just coal, either: there are 6 other mines that would likely be in POV status if they weren’t appealing more than 75% of their violations, including various cement and gold producers and Williams & Sons Slate & Tile, Inc., of Wind Gap, Pa., who have been appealing 100% of their violations.

Is all this appealing taking place because MSHA is writing huge numbers of frivolous violations?

“…if you look at the data, what it tells you is less than one-half of one percent of the violations issued by MSHA inspectors, uh, are vacated or thrown out. That means almost every violation that they issue is a violation…”

–Assistant Secretary Of Labor for Mine Safety and Health Joseph Main, February 23, 2010

The upshot of all of this is that the 2006 legislation’s POV enforcement provisions have essentially been rendered useless; the effort now is to make a bad situation better.

How is that going to happen?

First, MSHA is considering plans to institute several technical changes in the flow of paperwork, most of which would result in filings either being presented sooner in the process or being prepared by the involved parties instead of the Commission’s administrative law judges.

Other proposed changes would combine multiple portions of the current system into more of a “one-stop” approach and combine multiple violations from one operator into one combined case.

Portions of the Federal Rules of Civil Procedure could also be adopted to replace some of what is today a more “proprietary” method of moving a case along.

A more controversial aspect of the new case management approach MHSA is considering would include a sort of “pretrial conference” that would conduct the fact-finding portion of the process before the case moves over to the Commission, leaving the judges only to apply the law to those facts and to decide the severity of any sanctions that the facts of the case warrant.

Another way to reduce the caseload facing each judge would be to increase the number of administrative law judges. The Commission’s current number of 10 is already scheduled to grow to 18 by the end of 2011. We’re told that because of the growth in the number of new filings this will not reduce the time to resolve cases; instead, this will essentially be an exercise in “treading water”.

MSHA and Commission senior managers have laid out two scenarios that would increase the number of judges to 28. The less aggressive scenario, when combined with the other changes, could reduce the backlog by 2014, the more aggressive, by January of 2013.

Where, you might ask, are these new judges to be found?

As it turns out, the Social Security Administration is a sort of “farm team” for the other Federal agencies that require such services, and the Commission expects they’ll be able to “poach” a few from over there if the budget authority is granted to do so.

I sent an email to a House staffer I know, looking to get a sense of how all this might play out; the on-the-record response being:

“We are looking at how to aggressively work down the backlog.”

And with all that said, let’s wrap this thing up:

Because of the new rules for handling violations, mine operators have benefitted, wittingly or unwittingly, from the new giant backlog of cases.

Certain mine operators are either aggressively protecting their interests in every way the law allows or interminably stalling just to save themselves from big fines and the annoying process of not killing their workers, depending on whom you ask; the outcome of that effort has been to make the POV regulations that were designed to compel better behavior unenforceable.

There are proposals that would reduce this backlog, and it appears that in Congress there is support for such an effort.

If you want to have an impact on this process, this would be a good time to let either Patty Murray (D-Recent Death Threat), who chairs the Senate’s Employment and Workplace Safety Subcommittee, or George Miller (One Of My Favorite Democrats-California), who is Chair of the Committee on Education and Labor in the House, know how you feel.

I’m told that there are Republicans, at least on the House side, who are also willing to help move this along, and Minnesota’s John Kline (the Education and Labor Committee’s Ranking Member) would be an excellent person to reach out to as well.

Since 1900 104,674 workers have died in the coal mines (we were still killing over a thousand a year well into the 1940s), and we’re finally to the point where fewer than 50 a year are dying…but that’s not good enough.

We still have a group of mine operators who see non-compliance with safety regulations, and the deaths that go with it, as a reasonable cost of doing business; we need to offer some friendly support to Congress, right now, to keep the reforms moving if we want to make that behavior stop.

We have a good situation here: the House appears to have bi-partisan support for such a move, and if there are Senators who want to stand up and threaten a filibuster, because they support a mine operator’s right to kill miners…well, that’s a pretty good place not to be if you’re in the getting elected business.

There are people running for both the House and the Senate who would like to advance this effort, and if you personally come across a candidate this political season…ask ‘em about all this, and see what kind of response you get.

Now I don’t know about you, but when I sit down to type these stories I’m not worried about the roof caving in, or the computer exploding, and there’s nobody around here trying to figure out whether it’s cheaper to let me die or do to some repairs so that I might survive another day on the job.

There is no reason why that should not be true for miners as well, and it’s about time we did what we have to do to make sure that what starts out as “just another day at the office” for nearly 135,000 Americans doesn’t end with you, and everybody you used to work with, going home in body bags.

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On Making Coal Mining Safer, Or, “It’s The Fines, Stupid!” April 8, 2010

Filed under: Coal Mining,Economics,Labor Issues,Mine Safety — fakeconsultant @ 3:24 am
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By now more or less everyone is aware that there has been a disastrous mining accident in West Virginia this week.

There are many people dead, and at the time this is written it is still possible that survivors might be found.

We don’t know much about why these disasters happen, for the most part, and we don’t really understand how to make things better.

Today, I’m here to fix some of that.

By the end of today’s story, you’ll understand a lot more about why people die in mines than you do now—and as an extra bonus, we’ll also discuss a radical new way to bring market forces into the process of making mines safer.

“…Death is still working like a mole,
And digs my grave at each remove:
Let grace work too, and on my soul
Drop from above…”

–George Herbert, Grace

As so often happens, we’re going to need to cover a bit of background: a bit less than half of coal mined in the US is found underground, and no matter how you go about it, mining coal is pretty frightening.

The “room and pillar” method of setting up a mine sounds like what it is: you clear out a large underground space, but you leave “pillars” of unmined ore to support whatever might be above, which could be additional levels of “rooms”, or it could be the mountain itself—but it’s most likely to be both.

“Longwall” mining involves removing far more material than room and pillar mining, and to make that happen the roof immediately adjacent to the mining equipment is braced. Eventually that bracing is removed and the roof is allowed to collapse behind the miners as they leave the mined space.

Here’s a video that illustrates the technique, courtesy of the Government of New South Wales, Australia’s Mine Subsidence Board:

If you can picture a five foot tall, 20 foot wide, spinning cylinder with giant teeth that can move up and down, attached to a low-slung tractor, you have a pretty good idea of what the continuous mining machine that’s used in room and pillar environments looks like.

Longwall machines have a spinning head that travels the length of the wall being mined; as a result these machines can be hundreds of feel long…or across, if you prefer.

The mines are accessed by different types of “shafts”. Some shafts are drilled diagonally into relatively shallow mines. Deeper mines are accessed with vertical shafts, which can reach down 2000 feet or more; additionally, there are conveyor systems, sometimes miles long, that move the ore up to the surface for processing.

So what can go wrong?

The first problem is dust. Coal dust is highly combustible (and the smaller the dust particles in any given volume of air, the more explosive potential exists), and there are lots of ways to create it: the mining machines create clouds of dust as they attack the walls, the conveyors carry dust through the mine, and vehicles stir up dust on the floors, to name just a few.

Once the dust is in the air, in sufficient quantity, any spark could cause an explosion—and just operating the machinery in the mine creates lots and lots of sparks.

(The presence of dust is also associated with black lung disease, but that’s a story for another day.)

The region of the country, oddly enough, has a lot to do with how much, and what size, of dust you’ll be dealing with in your mine, and mines in each District under the Mine Safety and Health Administration’s (MSHA) jurisdiction have their own particular dust characteristics.

It’s possible to monitor the air, in real time, and there are devices that measure how much explosive potential exists in the rock that’s in the chamber with the miners.

Coal dust can be controlled, first, by mixing it or covering it with other nonexplosive dust (finely ground limestone is often used for this purpose), and by getting water on the dust to keep it out of the air.

There are all kinds of considerations that determine how well “wetting” the ever-present dust clouds will work, including the surface tension of the liquid, droplet size, dust size…well, anyway, it’s a complex business, and the results have been pretty hit-and-miss.

There is good news: an experimental “water curtain” system is now coming into the field that offers the potential to reduce dust to 50% of the levels seen with today’s systems.

Oddly enough, no one thought, for the longest time, that dust was even a hazard—until November of 1963, when the worst known mine disaster in history killed 1,197 workers at Japan’s Miike coal mine.

Methane is the second big hazard. Concentrations above 5% are dangerous, and MSHA limits acceptable methane levels in the mines to 1%. The risk, as MSHA succinctly puts it, is from “frictional ignitions”, just as it is with coal dust.

Here’s what the folks at MethaneGasDetectors.com have to say about all this:

“…The problem is that methane is unavoidable. When you mine coal, you expose fissures and pores in the coal bed in which methane is lying. Therefore, you cannot help but release into a confined area a gas that is not only highly flammable with the potential to violently explode in a ball of flame but one that is also an asphyxiant, capable of driving out oxygen and causing death by suffocation…”

You’ll notice methane actually causes two problems: it can kill you if it blows up—and even if it doesn’t, just the presence of enough methane in the air can kill you.

The very imperfect solution here is ventilation—but the “forced air” ventilation requirement can be reduced considerably through the use of boreholes and “bleeders” to vent methane away from work areas using natural drafts.

The third reason people get killed in mines has to do with “geography”.

What I mean is that, instead of an explosion, the mine either caves in or floods; the one usually caused by removing pillars unsafely, the other sometimes caused by hitting unexpected pockets of water (the Quecreek Mine in Pennsylvania was flooded in just this way).

So here’s the thing: making life safe in this amazingly dangerous environment is amazingly expensive, and the common wisdom has been that if you’re running a mine it’s probably cheaper to let the MSHA folks levy a few fines—and to let a few miners die—than to really do what needs to be done to protect those workers.

That’s why, sometimes, mines consist of two mountains: the mountain that’s being bored into, and the mountain of violations that pile up over the course of a few decades of unsafe behavior—a mountain so large that sometimes even Fox News feels compelled to weigh in on just how bad things have become.

And that’s how we get to the “proposal” part of my proposal.

Now I know this is going to sound obvious: but if it’s cheaper today to violate the rules than it is to comply…well, why not make it more expensive to violate the rules than to comply?

Here’s what I mean: If a mine is missing a piece of safety equipment…say, the amount of ventilation is found to be insufficient…and the cost to mitigate the problem is $100,000…then let’s set the fine at $150,000, per day, per occurrence.

If it becomes known to MSHA that the new water curtain system is the best way to go, mandate that it be adopted—and once again, set the fine for failure to comply at 150% of the cost of compliance.

Now here’s the good part: we do not have sufficient personnel at MSHA to inspect all these mines…but we do know how to get those folks out there, and how to fund them, all thanks to the War on Drugs.

Travel through Texas, or Florida, or Tennessee, and you may very well find yourself being pulled over by a cop who basically earns his living shaking down those he is able to catch with drugs.

Seizures of cars and cash are the motivation here, and many of the drug task forces (as well as quite a few “traditional” law enforcement agencies) are highly dependent on this type of funding.

As you might guess, this creates…aggressive…officers, who are hustling, like crazy, to bring in all the income they can.

Well, I thought to myself, why not apply the same model to mine safety enforcement?

Why not create a “Mine Safety Task Force” that would be empowered to enter and inspect any mine at will, would be free to find each and every violation that might possibly exist—and who would have a financial stake in finding and fixing violations?

Now you might say to yourself that this could create people who cause way too much trouble for the mines—but if your father or brother was lying dead in that mine…if maybe you were next…would you think maybe causing mine owners some trouble they have never had before might be a pretty good idea after all?

One additional step: closures.

In addition to fines, there should be mandatory mine closures (with the mine providing pay to workers during the closure) for particularly egregious violations, or for patterns of the same violation over a long period of time.

What does all this do?

It makes the Power Of The Free Market into an enforcement tool, as it’s no longer cheaper to violate safety rules than it is to obey them…and what Good Conservative Mine Owner wants to tell America, out loud and in public, that they no longer believe in the free market?

So there you go: we now understand why these accidents occur, and we now have a plan that makes it too expensive to kill workers as a cost of doing business, which is a huge change from what we seem to be doing now.

What’s not to love?

 

2nd Amendment Foundation And Black Community Agree To Joint Gun March, Rally April 7, 2010

New York (FNS)—In an effort to help dispel concerns of racism, Terri Stocke, President of the Second Amendment March, agreed to coordinate with members of the Reverend Al Sharpton’s National Action Network and the Reverend Jesse Jackson’s Rainbow/Push Coalition in an effort to encourage more members of the Black community to bear arms and to carry them publicly.

In return, members of the Black community have agreed to flood the 2nd Amendment March, scheduled for April 19, 2010, in Washington, DC, with hundreds of thousands of heavily armed residents of Chicago’s South Side and New York City’s Harlem and Bedford-Stuyvesant neighborhoods.

“We hope that the Black community understands that 2nd Amendment rights apply to all Americans” Ms. Stocke told the crowd outside Mr. Sharpton’s offices.

She went on to tell the crowd: “We have all heard the saying, “Freedom isn’t free”. Of course, that phrase means that the freedoms that we enjoy today are the result of the blood, sweat and tears of our forefathers and mothers who pressed onward in the face of great hardship — continuing to stand and fight for what they knew to be right — to create these United States that we call home. Freedom ISN’T free. It requires the willingness to remain vigilant, to take action, and to make sacrifices when necessary to ensure freedom for our children and our childrens’ children.

Now is the time to press onward to ensure that the right to keep and bear arms is preserved as intended by our forefathers — not as interpreted by legislators and lawmakers who enact laws that infringe on your right to protect yourself and your loved ones.”

Ms. Stocke and the Revs. Sharpton and Jackson went on to announce their new combined program to ensure that every member of the community that could possibly qualify would be able to obtain and carry guns.

“We have said for some time that if everyone had guns, we’d all be safer” Ms. Stocke intoned to the exultant crowd, “and as of today, we at the 2nd Amendment Foundation will do everything in our power to create an environment where each and every citizen of the Harlem, Bed-Sty and South Side communities are free to carry their weapons at all times, in order to create a safer New York and a safer Chicago.”

Ms. Stocke’s website, AmmoLand.com, will also join the effort, by sponsoring the expansion of the National Shooting Sports Foundations “First Shots” program into urban environments.

“By expanding the number of armed citizens in these communities, we can stop the police from acting as tools of an oppressive Government, and provide an opportunity for these Citizens to regain control over the forces that have been Treading On Them.

Eventually we hope to spread this effort to more cities, including, Detroit, Houston, and Oakland.”

Father Dick Timoneous, interviewed in the crowd, suggested this would be just the thing the 2nd Amendment March needed: “I can just imagine the jubilation that will be on the faces of that all-White crowd on April 19th when tens of thousands of Black people, all heavily armed, descend on the march, proving that when everyone is armed, we’re all safer.”

The event will take place at the northeast corner of the Washington Monument grounds, April 19, 2010, from 10 AM to 4 PM, and everyone is encouraged to attend.