1. Illinois Mining Institute Technical Session Presentation August 2015
What is the Role of Science in MSHA Enforcement?
Arthur M. Wolfson, Esq., R. Henry Moore, Esq.
401 Liberty Avenue, Suite 1500, Three Gateway Center,
Pittsburgh, PA
Phone: • Fax:
• •

2. INTRODUCTION
Mine Act is intended to foster research related to mine safety and health problems – 30 U.S.C. §803(g)

3. II. FIRES AND ACCUMULATIONS

4. Section :
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 in active workings, or on diesel powered and electrical equipment therein.
30 C.F.R. §75.400

5. Significant and substantial: “[a] violation [that] is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §814(d)
The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 501 (Rev. Comm. April 1988)

6. Belt Fires
What is the hazard? Is the hazard of a belt fire today different than in 1977?

9. Aracoma – 2 fatalities Mine 84 No fatalities. No injuries.
Many of pictures in Bentley Report.

10. Compilations of injury statistics in various belt air studies by MSHA.
Problem is characterizing the hazard in terms of its significance.

11. Despite advances in fire prevention and detection, such protections are not accorded weight in S&S determinations. Buck Creek Coal Co. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995); Amax Coal Co., 19 FMSHRC 846, (Rev. Comm. May 1997).
MSHA report by Terry Bentley also not accorded weight in S&S determinations. Big Ridge Inc., 35 FMSHRC 1525, 1529 (Rev. Comm. June 2013)

12. Let’s ask ourselves about so-called conventional wisdom concerning belt fires:
How hot do rollers get if they are turning in coal?
Is it actually hot enough to ignite the coal?
How do rollers turning in coal interact with coal packed around the rollers?
How hot do structures get when a belt rubs on it and how does it transfer heat?
Coal burns at º
What effect of moisture is there (“it will dry out”)?
How hot does grease in a defective roller get?
Does a frozen roller generate significant heat?

13. Equipment Fires – Continuous Miners and Roofbolters
Pretty Rare
Treated as significant hazards
Does science and information support

14. III. PLANS

15. Statutory background: “A mine operator may not lawfully operate…without a…plan approved by the MSHA district manager, that is ‘suitable to the conditions and the mining system’ at the mine.” 30 U.S.C. §§862(a) and 863(o).

16. “Mach Mining, LLC v. Secretary of Labor, 728 F. 3d 643 (7th Cir
“Mach Mining, LLC v. Secretary of Labor, 728 F.3d 643 (7th Cir. 2013) and Prairie State Generating Co., LLC v. Secretary of Labor, Case No (D.C. Circuit June 26, 2015) have placed the responsibility on the District Manager to justify imposing a plan provision.
Requires an operator to “data dump”

17. Arbitrary and capricious standard to evaluate MSHA’s decisions on plan provisions.
No right to a de novo review.
Evidence not presented to the District Manager during plan approval process excluded.
Rather than proving its plan is reasonable, operators must prove that the rejection was an abuse of MSHA’s discretion. Information and analysis is presented to the District Manager and will not be considered in a plan dispute challenge.

18. Impact of these decisions on the use of the best science to devise mine plans.
Includes expert evidence submitted to District Manager
Deep cuts
Fatalities from moving equipment
NIOSH studies and District studies
Reduced exposure of deeper cuts
4 foot bolt spacing
NIOSH study of falls per 100,000 feet
“Old” data
Various stability factors
Policy appears to trump science

19. IV. ROCKDUST

20. Significant changes in rockdust sampling procedure in 2013:
Sampling locations should be chosen based on visual identification of potentially non-compliant conditions.
If dust is present, roof, rib and floor samples may be taken separately rather than band samples.
Samples should be taken from material 1/8 inch, rather than 1 inch in depth.

21. Scientific concerns with new procedures:
Are samples representative of area?
Roof and ribs are more significant than floor samples in an explosion
Accuracy / Variability of sampling
When sample divided, significant variability

22. MSHA Quality Control: 1.5% is what MSHA accepts
If that much under QC program, supposed to shut down, adjust and prepare a report.
Didn’t appear to follow
79.9% - citation!

23. Anomaly of describing a “worst case” sample as representative and treating as “serious” hazard
Previously followed 10% rule to address anomalies

24. V. GOING FORWARD
There is an opportunity to conduct meaningful research to support compliance.
Who is going to fund?

25. For more information on these and other occupational safety and health topics, please visit:
Arthur M. Wolfson, Esq., R. Henry Moore, Esq.
401 Liberty Avenue, Suite 1500, Three Gateway Center,
Pittsburgh, PA
Phone: • Fax:
• •