Coal Mine Safety and Health
Coal Mine Safety and Health
Updated September 5, 2008
Specialist in Labor Economics
Domestic Social Policy Division
Coal Mine Safety and Health
Safety in the coal mining industry is much improved compared to the early
decades of the twentieth century, a time when hundreds of miners could lose their
lives in a single accident and more than 1,000 fatalities could occur in a single year.
Fatal injuries associated with coal mine accidents fell almost continually between
1925 and 2005, when they reached an all-time low of 23. In 2006, however, the
number of fatalities more than doubled to 47. Fatalities declined a year later to 33,
which is comparable to levels achieved during the late 1990s.
Coal miners also suffer from occupationally caused diseases. Prime among
them is black lung (coal workers’ pneumoconiosis, CWP), which still claims about
1,000 fatalities annually. Improved dust control requirements have led to a decrease
in the prevalence of CWP, but there is recent evidence of advanced cases among
miners who began their careers after the stronger standards went into effect in the
early 1970s. In addition, disagreement persists over the current respirable dust limits
and the degree of compliance with them by mine operators.
In the wake of the January 2006 Sago Mine accident, the U.S. Department of
Labor’s Mine Safety and Health Administration (MSHA) was criticized for its slow
pace of rulemaking earlier in the decade. MSHA standard-setting activity quickened
starting later that year, however, after enactment in June of the Mine Improvement
and New Emergency Response Act (MINER, P.L. 109-236). The MINER act
emphasized factors thought to have played a role in the Sago disaster and imposed
several rulemaking deadlines on MSHA. Although the agency has not met all of the
act’s deadlines, it has published the requisite final standards on emergency mine
evacuation, civil penalties, rescue teams, and mine seals.
Some policymakers remain dissatisfied with MSHA’s performance. These
sentiments led to House passage, in January 2008, of the Supplemental Mine
Improvement and New Emergency Response Act (S-MINER, H.R. 2768). It
incorporates language from the Miner Health Enhancement Act (H.R. 2769), such
as requiring MSHA to adopt as mandatory exposure limits the voluntary limits (to
chemical hazards, for example) recommended by the National Institute for
Occupational Safety and Health. S-MINER also requires MSHA to more closely
review and monitor operator plans that include retreat mining, the practice used at
Utah’s Crandall Canyon Mine where six miners and three rescuers lost their lives in
Following the release of investigations by congressional committees and others
into the Crandall Canyon Mine collapse, MSHA issued its accident report on July 24,
2008. It assessed a fine totaling $1,636,664 on the mine operator for such violations
as failing to revise and follow its roof control plan and failing to notify MSHA of
coal bursts that preceded the deadly burst on August 6, 2007. MSHA also fined the
engineering consulting firm that provided the operator with flawed analyses that
resulted in an inadequate roof control plan. In early September 2008, MSHA
announced that it has asked the U.S. attorney’s office in Utah to consider filing
criminal charges in connection with the Crandall Canyon Mine accident.
Working Conditions in the Coal Mining Industry.........................1
The Regulatory Regime.............................................5
Civil Penalties Assessed and Contested.........................9
The MINER Act and the Consolidated Appropriations Act, 2008.......10
The S-MINER Act............................................11
The Administration’s Position...............................14
List of Tables
Table 1. Number of Fatalities and Fatal Injury Rate in
the Coal Mining Industry, 1995-2007..............................3
Coal Mine Safety and Health
News accounts of miners losing their lives as a result of accidents at coal mines
have appeared more often in recent years. The methane explosion in 2006 at West
Virginia’s Sago Mine, in which 12 trapped miners died, shined a bright light on
working conditions at the nation’s coal mines. The partial collapse in 2007 at Utah’s
Crandall Canyon Mine further drew attention to the plight of coal miners. These
among other incidents during the current decade have prompted Congress to step up
its legislative and oversight activities with respect to the safety and health of those
who toil in the country’s coal mines.
This report begins by reviewing the record of working conditions in the coal
mining industry. It then describes the regulatory regime and recent funding of the
U.S. Department of Labor’s Mine Safety and Health Administration. The report
closes with an analysis of current regulatory and legislative initiatives.
Working Conditions in the Coal Mining Industry
Safety in the coal mining industry is much improved compared to the early
decades of the twentieth century, a period in which hundreds of miners could lose
their lives in a single accident and more than 1,000 fatalities could occur in a single
year. Fatalities associated with coal mine accidents fell almost steadily between 1925
and 2005, when they reached an all-time low of 23.1
Nevertheless, coal mining remains one of the most dangerous employment
sectors as measured by fatal work injuries. The fatality rate among persons employed
in the private sector was 4.3 per 100,000 workers in 2006, the latest year for which
data are available from the U.S. Bureau of Labor Statistics, compared to 49.5
fatalities per 100,000 workers in coal mining.2 In terms of non-fatal accidents,3
mining does not diverge greatly from the all-industry average. In what follows, then,
the concentration is on fatal accidents.
A variety of factors may have contributed to the long-term improvement in
safety at the nation’s coal mines (e.g., decreased employment, shift from underground
1 Data available at [http://www.msha.gov/stats/coalstats.asp].
2 The fatality rate in the goods-producing sector, of which mining is a part, was 8.3 per
100,000 persons employed in the sector in 2006. Revised data for 2006 from the BLS’s
National Census of Fatal Occupational Injuries.
3 BLS, Workplace Injuries and Illnesses in 2006, October 15, 2007.
to surface mining, and increased productivity). New machinery such as longwall
systems not only reduced the total number of workers needed, but also did so at the
most dangerous spots (e.g., the active cutting face). Other measures that likely have
prevented many large-scale accidents include controlling coal dust, monitoring
methane gas (which is both explosive and poisonous), adequately supporting roofs,
and avoiding spark-producing equipment.4
It would be very difficult to determine conclusively how much of the progress
in safety has been due to the activities of the Mine Safety and Health Administration
(MSHA). Much of the industry might have voluntarily adopted the safety
requirements in MSHA standards (regulations) without that inducement. And
indeed, safety increased for a long time before Congress passed the Federal Mine
Safety and Health Amendments Act of 1977 (P.L. 95-164) in which MSHA was
established within the Department of Labor.5
Despite the progress that has been made in worker safety and their disagreement
on the specific course of action to be followed,6 labor and management concur that
there is still room for improvement — especially in light of incidents that occurred
in the current decade. For example, the flooding of the Quecreek Mine in
Pennsylvania in July 2002 raised questions about the accuracy of underground mine
maps and their availability to operators of nearby mines. The Quecreek accident
might have been avoided if the mine operator had access to the final map of a nearby
abandoned mine that had since filled with water.
In January 2006, a methane explosion at West Virginia’s Sago Mine, which was
precipitated by lightning that penetrated underground, killed one miner initially.
Twelve of the 16 miners who survived the explosion became trapped and succumbed
ultimately to carbon monoxide from the ensuing fire. The episode raised a number
of safety issues that were discussed at a hearing of the Senate Appropriations
Subcommittee on Labor, Health and Human Services, Education, and Related
Agencies in January 2006, including the possibility that different communication and
tracking devices might have enabled the trapped miners to escape or find better
refuge, or rescuers to reach them more quickly. In addition, emergency breathing
apparatus issued to the miners were rated for only one hour and a number of the
apparatus reportedly did not work well. There also was criticism of the fact that it
took 11 hours from the explosion until rescuers entered the mine.7
4 For an overview of safety trends, see Ramani, Raja and Jan Mutmansky, “Mine Health and
Safety at the Turn of the Millennium,” Mining Engineering, September 1999.
5 In prior decades, Congress initiated and gradually expanded safety and health regulation
of coal and other mining industries within the Department of the Interior.
6 The United Mine Workers (UMW) union wants MSHA to be more active. It asserts that
there are not enough inspectors and that penalties (proposed and negotiated) are not large
enough. In general, the UMW would make enforcement of standards the highest priority.
The mining industry generally supports the current regulatory approach, but it urges that
inspections be focused on mines with evident problems rather than on all mines as currently
required by law.
7 Ironically, one of the “lessons learned” from a September 2001 accident at Alabama’s Jim
Accidents at Sago and other coal mines in 2006 more than doubled the number
of fatalities from the record low of 23 in 2005, to 47 in 2006, a level last reached in
1995. (See Table 1.) In 2007, however, fatal work injuries declined to 33 — a level
comparable to those of the late 1990s. Through July 29, 2008, there have been 18
fatalities in the coal mining industry.
Table 1. Number of Fatalities and Fatal Injury Rate in the Coal
Mining Industry, 1995-2007
Fatal Injury Rate (reported
YearNumber of Fatalitiesinjuries per 200,000 hours
2008 (to 9/2)19not available
Source: U.S. Department of Labor, Mine Safety and Health Administration.
Despite the improvement in 2007, the collapse at Utah’s Crandall Canyon Mine
in August of that year — which resulted in deaths of six miners and three rescuers
(including an MSHA inspector) and injuries sustained by six others — again
highlighted the risks of working in the coal mining industry. Rescuers repeatedly
sent messages on pager-like devices to the trapped miners, but it is unknown whether
they ever were received. As mentioned in connection with the Sago tragedy, other
technologies might have allowed communication with and location tracking of the
Walter No. 5 mine appears to have led to the delay at Sago. Because most of the victims in
the earlier accident were responding to a relatively small explosion when a larger one
occurred, considerable time was taken to verify the state of the atmosphere in the Sago mine
before rescue teams were sent in.
Accidental injuries can be quantified much more reliably than the extent of
occupationally caused disease. It is clear, though, that coal mining causes disability
much more by way of long-latency disease than by traumatic injury. Prime among
these diseases is black lung (coal workers’ pneumoconiosis, CWP), which still claims
some 1,000 fatalities per year despite being down by about half since 1990.8 Deaths
tend to occur after a long progression, resulting in one year of life expectancy being
lost on average for these cases. However, many years of impaired breathing and
debilitating weakness often precede death, which may not be counted as a mining-
related fatality because the ill miner dies from other immediate causes.
Improved dust control requirements have led to a decrease in the prevalence of
CWP. Among miners with 20-24 years of work experience, for example, the
proportion of examined miners who had positive x-rays decreased from 23.2% in the
mid-1970s to 2.2% in the late 1990s.9 Interestingly, sharp drops in rates occurred at
certain times: for workers with 25-29 years of mining experience, the rate fell from
20.2% in the 1987-1991 survey to 5.4% in the 1992-1996 survey; the former cohort
began their careers around 1962, the latter around 1967. Under the Federal Coal
Mine Health and Safety Act of 1969 (P.L. 91-173), commonly referred to as the Coal
Act, tighter dust standards were phased in from 1970 to 1973.
During the current decade, however, the U.S. Department of Health and Human
Services’ Centers for Disease Control and Prevention (CDC) found advanced cases
of CWP among underground miners younger than 50 to be particularly troubling
because they were exposed to coal dust after the preventive measures in the Coal Act
went into effect. The CDC suggested four explanations for the continuing
development of advanced pneumoconiosis:
1) inadequacies in the mandated coal-mine dust regulations; 2) failure to comply
with or adequately enforce those regulations; 3) lack of disease prevention
innovations to accommodate changes in mining practices (e.g., thin-seam mining)
brought about by depletion of richer coal reserves, and 4) missed opportunities
by miners to be screened for early disease and take action to reduce dust10
8 U.S. Department of Health and Human Services, Centers for Disease Control and
Prevention, National Institute for Occupational Safety and Health, Work-Related Lung
Disease Surveillance Report 2002, Section 2 (CWP and Related Exposures), DHHS
(NIOSH) report no. 2003-111, May 2003.
10 “Advanced Pneumoconiosis Among Working Underground Coal Miners — Eastern
Kentucky and Southwestern Virginia, 2006,” MMWR Weekly, July 6, 2007.
The Regulatory Regime
MSHA is charged with overseeing the safety and health of those employed in
coal and other mining industries. Its budget for FY2008 of about $334 million is less
than that of its sister agency, the Occupational Safety and Health Administration
(OSHA), but OSHA is responsible for protecting many more workers: MSHA
oversees a mining industry (including surface operations and all other minerals
besides coal) of about 200,000 workers, while OSHA is responsible for most of the
more than 100 million employees in the remainder of the workforce. Thus, while
OSHA targets its inspections mostly on firms with the worst accident records in a
few sectors, MSHA is able to cover its whole industry. Indeed, it is mandated to
inspect each underground mine at least four times a year and each surface mine twice
a year. Both agencies can assess financial penalties, but MSHA has direct authority
to immediately shut down dangerous operations.
MSHA regulations, often referred to as standards, cover a wide range of
equipment, procedures, certifications and training including methane monitoring,
dust control, ventilation, noise, electrical equipment, diesel engines, explosives, fire
protection, roof support, hoists and haulage, maps, communications and emergencies.
See Code of Federal Regulations, Title 30, Chapter 1; coal mines are specifically
addressed in Subchapter O.
Safety. In the wake of the Sago accident in January 2006, the agency was
criticized for its slow pace of rulemaking, allegedly withdrawing 18 proposed11
standards that had been pending as of January 2001. The Administration said in
response that it was pursuing a revised agenda,12 and being more frank by no longer
listing long-term projects on which little progress had been made.
MSHA rulemaking activity started to quicken after enactment in June 2006 of
the Mine Improvement and New Emergency Response Act (MINER, P.L. 109-236).
In December 2006, for example, a final rule on emergency mine evacuation went into
effect that reconciled MSHA’s emergency temporary standard with the new law. The
final regulation includes requirements for increased availability and storage of
breathing devices (self-contained self-rescuers, SCSRs), installation and maintenance
of escape guides (lifelines) in underground coal mines, and immediate notification
of accidents at all mines. In March 2007 (as opposed to the MINER act’s deadline
of December 2006), MSHA issued another final rule; it raises the civil penalties for
all mine safety and health violations including those specified in the MINER act.
11 Joby Warrick, “Federal Mine Agency Considers New Rules to Improve Safety,”
Washington Post, January 31, 2006, p. A3.
12 Standards proposed and adopted in the 2001-2005 period include methane testing
(alternate means), emergency evacuations, belt entries as air intakes, and training shaft and
slope construction workers.
In addition, MSHA announced in late January 2008 its first approval of a
wireless communications system. In order for an underground mine operator’s plan
to be approved, the MINER act imposed a deadline (June 2009) for their adoption of
“post accident communication between underground and surface personnel via a
wireless two-way medium.” During a hearing held by the Subcommittee on
Employment and Workplace Safety of the Senate Health, Education, Labor, and
Pensions (HELP) Committee on June 19, 2008, the Associate Director for Mining
and Construction at the National Institute for Occupational Safety and Health
(NIOSH), Jeffrey Kohler, and the MSHA Administrator, Robert Stickler, gave
somewhat equivocal responses to questions about whether this deadline would be
met. According to MSHA’s website,
As of September 2, 2008, MSHA is processing 38 approval applications for
communications and tracking technology.... [MSHA is] currently working
with...NIOSH to develop industry guidance for MINER Act compliant
communications and tracking systems. This guidance will be published by the
end of 2008.
The act also set a deadline (December 2007) for MSHA to promulgate new
requirements that mine operators must meet concerning rescue teams. In February
2008, MSHA issued a final rule that among other things mandates the number of
hours of training for mine rescue team members. Two months later, MSHA
published another final rule; this one, on sealing of abandoned areas in underground
coal mines. (The MINER act had required MSHA to finalize, by December 2007,
a standard for mine seals and increase from 20 pounds per square inch (psi) the
horizontal static pressure that a seal could withstand.)
Health. On the matter of preventing black lung and silicosis, MSHA is
expressly required by its authorizing statute to enforce a dust control standard. The
(mandatory) permissable exposure limit (PEL) to respirable dust currently set by
regulation is 2 milligrams per cubic meter. NIOSH developed a (voluntary)
recommended exposure limit (REL) for coal mine dust of 1 milligram per cubic13
meter and for silica dust of 0.05 milligrams per cubic meter.
Besides the limit itself, controversy continues about how dust concentrations are
measured in mines, and how MSHA monitors operators’ plans and performance.
After MSHA proposed new regulations in 2000 (superceded by revised proposals in
March 2003), it suspended work on a final rule in June 2003 to obtain information
on personal dust monitors (PDMs) that NIOSH was testing. PDMs are a new
technology that can give personalized, real-time readings of dust concentration and
help resolve longstanding disputes about how air samples are to be handled. In May
2007, NIOSH’s Jeffrey Kohler testified at a hearing of the Subcommittee on
Employment and Workplace Safety of the HELP Committee that the institute’s
research showed miners equipped with PDMs were able to greatly reduce respirable
dust exposure based on having real-time dosimetry. The firm that now has the rights
13 U.S. Department of Health and Human Services, Centers for Disease Control and
Prevention, National Institute for Occupational Safety and Health, Criteria for a
Recommended Standard: Occupational Exposure to Respirable Coal Mine Dust, DHHS
(NIOSH) publication no. 95-106, September 1995.
to the PDM informed NIOSH that it could have the devices available within four to
six months after rulemaking is completed.14
Crandall Canyon. After the HELP Committee released Report on the August
6, 2007 Disaster At Crandall Canyon Mine and DOL’s Office of Inspector General
published MSHA Could Not Show It Made the Right Decision in Approving the Roof
Control Plan at Crandall Canyon Mine in March 2008, and the Chairman of the
House Education and Labor Committee issued a memorandum reviewing the
committee’s investigation of the Crandall Canyon Mine incident in May 2008,
MSHA released its accident report on July 24, 2008. Like the University of Utah’s
Seismological Report on the 6 Aug 2007 Crandall Canyon Mine Collapse in Utah,
issued August 2007, MSHA concluded that the seismic activity associated with the
mine collapse was not due to a naturally occurring earthquake. Rather,
The extensive pillar failure and subsequent inundation of the section by oxygen-
deficient air occurred [on August 6] because of inadequacies in the mine design,
faulty pillar recovery methods, and failure to adequately revise mining plans
following coal burst accidents [about which MSHA was not notified] within 15
minutes as required by 30 CFR 50.10. [This failure on the operator’s part] denied
MSHA the opportunity to investigate these accidents and ensure corrective15
actions were taken before mining resumed in the affected area.
The August 16 accident occurred because rescue of the entrapped miners
required removal of compacted coal debris from an entry affected by the August
6 accident. Entry clean-up reduced confining pressure on the failed pillars and
increased the potential for additional bursts. Methods for installing ground
control systems required rescue workers to travel near areas with high burst
potential.... On August 16, the coal burst intensity exceeded the capacity of the16
In addition to failing to provide MSHA the requisite notification of prior bursts,
the mine operator (Genwal Resources Inc., GRI) conducted bottom and barrier
mining that were not included in the approved roof control plan and that intensified
stress on the pillars. GRI also mined in an area that was not part of the approved roof
control plan, according to MSHA’s report, thereby making conditions more unstable.
Further, GRI did not propose revisions to the roof control plan that were sufficient
to control bursts. MSHA levied a fine of $1,340,000 for multiple violations (30 CFR
50.10, 30 CFR 75.203(a), 30 CFR 75.220(a)(1), 30 CFR 75.223(a)) that directly
contributed to the fatalities that occurred at Crandall Canyon Mine on August 6,
14 “MSHA Regulation on Dust Monitors Needed to Require Use in All Coal Mines,” Daily
Labor Report, May 23, 2007.
15 MSHA, Report of Investigation: Fatal Underground Coal Burst Accidents, August 6 and
gov/Fatals/2007/CrandallCanyon/CrandallCanyonreport.asp]. (Hereafter cited as MSHA,
Report of Investigation.)
16 Ibid., p. 4.
MSHA cited the mine operator for 11 additional, noncontributory violations
issued as the result of the investigation. The proposed penalty for these
violations is $296,664, bringing the total proposed penalties against the mine17
operator to $1,636,664.
MSHA faulted engineering analyses performed by Agapito Associates, Inc.
(AAI) for the mine operator. It issued one enforcement action to AAI for
“inaccurately evaluat[ing] the conditions and events at the mine when determining
if areas were safe for mining,” which “directly contributed to the death of nine
people.”18 MSHA fined AAI $220,000 for violating 30 CFR 75.203(a).
Since 1989, MSHA has carried out internal reviews of its actions after accidents
involving at least three fatalities. Because the Assistant Secretary for MSHA and the
Administrator for Coal Mine Safety and Health were directly involved during the
Crandall Canyon Mine accident and rescue, however, the Secretary of Labor
appointed an Independent Review Team (IRT). The IRT’s report found many
deficiencies on the part of MSHA before the accident that claimed six lives, during
the rescue operation, and in other areas. For example, the IRT concluded that
MSHA, in approving the roof control plan and amendments, did not fulfill its
responsibility to ensure they were sufficiently protective of the safety of miners;
failed to comply with the MINER act’s provisions that it be the primary source of
communication with the families of trapped miners, the media, and the public; and
The Agency’s increased focus on compliance assistance and special emphasis
activities may have impacted its ability to complete required inspections as19
mandated by the 1977 Mine Act.
MSHA already has taken measures to address some deficiencies noted in the
IRT report and plans to implement additional changes in response other IRT
recommendations with which it agrees. The agency has, for example, issued a letter
to mine operators requesting that detailed information be included in their submittals
for approval of complex and/or non-typical roof control plans; sent memoranda,
instructions, and checklists to district personnel about approval of complex/non-
typical roof control plans and reviews, and about implementation of a standardized
roof control plan approval and review process; issued a procedure instruction letter
to district personnel on use of technical support assistance during review of roof
control plans; and sent a memo requiring that sections in which retreat mining is20
occurring be inspected at least monthly.
17 MSHA, “MSHA Levies $1.85 Million in Fines for Crandall Canyon Mine Disaster,” News
Release, July 24, 2008, available at [http://www.msha.gov/MEDIA/PRESS/2008/NR08
18 MSHA, Report of Investigation, p. 176.
19 Earnest C. Teaster Jr. and Joseph W. Pavlovich, Independent Review of MSHA’s Actions
at Crandall Canyon Mine, July 21, 2008, p. 5, available at [http://www.msha.gov/CCreview/
20 MSHA, Crandall Canyon Accident Investigation: Summary and Conclusions, available
at [http://www.msha.gov/Genwal/ccSummary.asp] and the agency’s response to the IRT
On September 3, 2008, MSHA acknowledged that it had made a criminal
referral in connection with the Crandall Canyon Mine accident to the U.S. attorney’s
district office in Utah. The prosecutor’s office already was conducting an
investigation into the mine fatalities on the basis of a referral made earlier in the year
by the Chairman of the Education and Labor Committee.21 At the behest of the U.S.
attorney’s office, the Mine Safety and Health Review Commission will cease all civil
enforcement proceedings and investigations related to this matter.
Civil Penalties Assessed and Contested. The increased value of civil
penalties promulgated by MSHA in a March 2007 rule coincides with employers
more often contesting citations. In 2006, there were 9,876 penalties contested out of
135,718 violations assessed or 7.3%; in 2007, the 18,997 penalties contested
represented 14.6% of 130,156 violations assessed; and of the 73,794 violations
assessed in the January-April 2008 period, 22.4% or 16,506 were contested.
Similarly, the percentage of dollars assessed being contested jumped from 34.6% in
2006 ($12.1 million out of $35.1 million) to 53.0% in 2007 ($39.5 million out of
$74.5 million) to 61.4% in January-April 2008 ($40.3 million out of $65.7 million).
MSHA determined that more than 200 mine operators have been contesting all
their assessed violations. Administrator Stickler considers them to be “abusing the
system” and creating a backlog, which DOL reportedly is dealing with by putting
more solicitors on mining cases.22
Congress increased MSHA’s appropriation from $302 million in FY2007, to
$334 million in FY2008. In response to rulemaking activity required in 2008 by
Congress in the MINER act and other legislation, MSHA asked the Occupational
Safety and Health Administration for volunteers to help develop standards. MSHA’s
Office of Standards, Regulations, and Variances develops standards for coal and
other mining industries covered by the agency; it also processes petitions for
modifications that are submitted to MSHA and administers the agency’s Freedom of
Information Act program. The office employs about 17 full-time equivalent
The Administration has requested a somewhat lower sum, $332 million, for
MSHA in FY2009. According to the agency’s budget justification, the
Administration attributes much of the $2 million net decrease ($20 million gross
decrease) to the cost in FY2008 of hiring and training new coal mine inspectors and
for overtime and travel of currently employed inspectors (almost $11 million). Only
report available at [http://www.msha.gov/CCreview/MSHAResponsetoCCIR.pdf].
21 “MSHA Asks Prosecutor to Consider Charges Based on Crandall Canyon Mine Collapse,”
Daily Labor Report, September 5, 2008.
22 Lauren Couillard, “Sixth MSHA Rule from MINER Act Imminent,” Daily Labor Report,
June 17, 2008.
a small portion ($367,000) is associated with cessation of “one-time costs in FY2008
for service contracts pertaining to rule making related to the MINER Act.”
The MINER Act and the Consolidated Appropriations Act,
The legislative activity undertaken at both the state (e.g., West Virginia,
Kentucky, and Illinois) and federal levels in 2006 emphasized factors thought to have
played a part in the Sago mine disaster (e.g., emergency oxygen supplies, tracking
and communication systems, deployment of rescue teams). The most prominent
measure, and first major revision of federal mine safety legislation since 1977, is the
Mine Improvement and New Emergency Response Act (MINER, P.L. 109-236).23
Congress passed the MINER act, and the President signed it into law on June 15,
Among the major points of the MINER act that require action on the part of
!Emergency response (Section 2). Each mine is to have a plan
approved by MSHA that addresses post-accident communications,
tracking, and breathable air and lifelines; and sets procedures for
coordination between operators, rescue teams, and local emergency
!Rescue teams (Section 4). Each mine with more than 36 employees
is required to have an employee on each shift knowledgeable about
emergency response; two certified teams familiar with the mine
available, who participate in rescue contests and training, within one
hour from the rescue station. More flexibility is provided for smaller
!Penalties (Section 8). Increases the scale and scope of penalties
including imprisonment and fines up to $250,000 ($500,000 second
offense) for willful violators of standards or orders, and a civil
penalty of up to $220,000 per violation for a new “flagrant
!Sealing of abandoned mine areas (Section 10). Increases the
existing standard of 20 psi pressure resistance.
Dissatisfaction has been expressed about the speed with which MSHA is
implementing the statute. For example, as previously noted in the report’s section
23 Earlier in the decade, Congress gave MSHA $10 million to collect and digitize mine maps
and new technologies for detecting mine voids (Consolidated Appropriations Resolution,
234) made available $26 million for MSHA to hire 170 coal mine inspectors above the
agency’s June 2006 level, and $10 million for NIOSH to conduct research on new safety
entitled “Regulatory Regime,” the MINER act set a deadline of December 2006 for
MSHA to issue a final rule raising certain civil penalties. The rule, which raises
penalties beyond those specified in the statute, was not released until March 2007.
Similarly, the act required MSHA to finalize a rule on mine rescue teams and on
mine seals by December 2007. The first standard did not appear in the Federal
Register until February 2008; the second, until April 2008.
As a result of the dissatisfaction, the Consolidated Appropriations Act, 2008
(P.L. 110-161), signed in December 2007, set deadlines for a proposed rule (June
2008) and a final rule (December 2008), consistent with the recommendations of the
Technical Study Panel on the Utilization of Belt Air established by Section 11 of the
MINER act.24 (MSHA received the final report of the panel in December 2007.)
P.L. 110-161 also directed the Secretary of Labor, within the same time frame, to
propose and finalize regulations consistent with the recommendations of NIOSH,
pursuant to Section 13 of the MINER act, requiring rescue chambers or equally
protective refuge facilities in underground coal mines.
MSHA met the deadlines of P.L. 110-161 for publishing the two proposed
standards. On June 16, 2008, the proposed rule on refuge alternatives and their
components (e.g., breathable air, water, first-aid supplies, two-way communication
systems) was issued. Although the rule permits different kinds of refuges, each
alternative must be tested by the manufacturer or a third party before it receives
MSHA approval and each must provide 96 hours of breathable air. In addition,
miners must be trained during quarterly drills in the location and use of refuge
alternatives. The comment period closed August 18, after the agency has held four
public hearings. The belt air proposed rule was issued on June 19, 2008. Among
other things, it addresses the flame resistance of conveyor belts; the use of belt air to
ventilate the work areas of miners, including minimum air velocity, provision of
airlock doors, and limiting the levels of respirable dust and methane gas; and mine-
specific training of atmospheric monitoring system operators. Four public hearings
will take place before the comment period closes on September 8, 2008.
The S-MINER Act
At the time of the MINER act’s passage, some Members characterized the law
as only a “first step” that would be followed by more measures. In January 2008, the
House passed the Supplemental Mine Improvement and New Emergency Response
Act (S-MINER, H.R. 2768) which incorporates language from the Miner Health
Enhancement Act (H.R. 2769).
24 On December 18, 2007, MSHA received the final report of the Technical Study Panel on
the Utilization of Belt Air. “Belt air” is air directed underground to ventilate active work
areas via the same tunnels in which conveyor belts remove coal from mines. Because these
tunnels consequently contain a great deal of highly flammable coal dust, some think that
using them for ventilation increases the risk of directing fires toward the work areas of
miners and toward their evacuation routes.
On the health front, Section 8 of the bill would require
!NIOSH, within 30 days of enactment, to transmit to MSHA its
recommended exposure limits (RELs) for chemicals and other
substances hazardous to miners; MSHA would then have up to 30
days from receipt of the RELs to adopt them as permissable
exposure limits (PELs);
!NIOSH to submit each year new or revised RELs, and DOL to adopt
them within 30 days as PELs;25 and
!MSHA to apply OSHA’s asbestos standard to the mining industry
within 30 days of the bill’s enactment.26
An amendment to the bill also requires the Secretary of Labor to study and report on
miner substance abuse issues that pose safety risks. Another amendment authorizes
$10 million for the Secretary, in consultation with the Secretary of Health and Human
Services, to award grants for provision of rehabilitation services to current and
former miners suffering from mental health impairments.
Section 7 addresses another health issue, namely, respirable dust. H.R. 2768
would, effective on the date of enactment, have mine operators adopt NIOSH’s RELs
of 1 milligram of respirable coal dust and 0.05 milligrams of respirable silica dust per
cubic meter of air. To ensure that the coal dust standard is being met, MSHA and
mine operators would have to sample the amount of dust in the mine atmosphere
using personal dust monitors (PDMs) that provide real-time information to the
miners equipped with the devices. An amendment to the bill appropriates $30
million to the Secretary to buy PDMs for this purpose.
In light of the use of retreat mining in the 2007 Crandall Canyon tragedy, the bill
contains provisions that address the practice.27 For example, mine operators would
be required to have a current pillar extraction or barrier reduction plan approved by
MSHA before performing such activities; the Secretary must establish a special
internal review process for plans involving miners working at depths of more than
1,500 feet; and the agency must more closely monitor implementation of these
practices. The National Academy of Sciences, in consultation with NIOSH, would
be required to make recommendations within one year of enactment about ways to
better protect miners during retreat mining and when working at great depths.
25 The Secretary of Labor would be allowed to review the feasibility of a PEL before it is
put into effect if mine operators or miners provide evidence that feasibility may be an issue.
If operators or miners provide evidence that an REL issued by NIOSH lacks the specificity
needed to serve as a PEL, the Secretary may defer implementation until NIOSH
recommends a more detailed REL.
26 In February 2008, MSHA published a final asbestos standard that includes exposure limits
equal to those set by OSHA.
27 When an underground area has been mined of its coal, the coal pillars that have been
holding up that area of the mine’s roof are pulled to obtain their coal in the opposite
direction from which mining originally occurred.
In addition to the retreat mining provisions in Section 4 of S-MINER, the
section revisits and supplements the emergency response provisions in the MINER
act. Among other things, MSHA would have to issue regulations in 2008 or 2009
concerning such safety issues as rescue chambers or other refuge designs
recommended by NIOSH, survivable mine ventilation controls, flame resistant
conveyor belts, and ventilation of active working places. H.R. 2768 similarly sets
deadlines on mine operators related to such safety issues as post-accident
communication and electronic tracking systems, a pre-shift communication program,
and atmospheric monitoring of carbon monoxide levels.
Section 4 also would repeal Section 10 of the MINER act, which imposed a
deadline (December 2007) for a final rule on sealing of abandoned mine areas. In its
stead, S-MINER would require MSHA to issue a final rule on the matter not later
than three months after enactment.28 Section 4 would, as well, have the National
Academy of Sciences (not later than one year from enactment) report on ways to
protect miners from the risk of lightning strikes near mines; this was a factor in the
Sago mine accident.
Section 5 of S-MINER focuses on enforcement authority. To ensure the agency
has sufficient qualified and trained inspection personnel on board before current
inspectors retire, the bill would abolish for five years any ceilings on the number of
persons in the position. In addition, an office of miner ombudsman would be created
in the Labor Department’s Office of Inspector General. S-MINER also would permit
in instances where a pattern of violations is found (1) assessment of a penalty beyond
those already authorized and (2) withdrawal of all miners from an entire mine. The
bill would raise the amount of some currently authorized penalties and establish a
procedure for dealing with operators who fail to pay final assessments. The Secretary
would be required to establish an advisory committee to recommend whether the
government should license mines, their operators, and related personnel to guarantee
they are not frequent violators of the 1977 statute.
Section 6 of H.R. 2768 addresses rescue, recovery and incident investigating
authority. It includes a requirement that within 30 days of enactment a
communications emergency call center be created for coal and other mine operations;
it must be staffed and operated 24 hours a day 7 days a week by at least one employee
of MSHA. Within six months of S-MINER’s enactment, guidelines for rescue
operations would have to be developed and disseminated; the guidelines must
delineate lines of authority within MSHA and between the agency, the private sector
and state responders so each can perform their respective responsibilities.
In addition to MSHA conducting all accident and incident investigations,
Section 6 would authorize an independent investigation for incidents involving
multiple injuries or deaths, or multiple entrapments. NIOSH would appoint team
28 In May 2007, MSHA issued an emergency temporary standard to increase protections for
those working in underground mines with sealed off abandoned areas. After extending the
comment three times (once to hold hearings in four states and twice to give individuals time
to review reports by NIOSH and the U.S. Army Corps of Engineers), MSHA published a
final standard in April 2008.
members. Not less than 30 days after its enactment, rulemaking would have to
commence on the procedures to be followed in the conduct of independent
investigations; rulemaking must be completed by October 1, 2008. However, the bill
would not have these other investigations limit the investigative authority of the
Chemical Safety and Hazard Investigations Board or the department’s inspector
ge n e r a l . 29
Section 6 of H.R. 2768 also would strike Section 7 of the MINER act
concerning family liaisons. In its place, S-MINER would have the Secretary
designate a full-time permanent employee of MSHA to serve as a family liaison who
will, at least in incidents involving multiple miners, serve as the primary
communicator with the families of those miners.
A third amendment to H.R. 2768 created Section 9, which establishes a mine
safety program fund. Into this account in the Treasury would be deposited mine
safety civil penalties and private donations. Sums in the account would be available
for mine safety inspections and investigations only.
The Administration’s Position. The President has said he will not sign the
bill if it arrives at his desk in its current form. When the House Education and Labor
Committee was marking up S-MINER in late October 2007, the OSHA Fairness
Coalition wrote the Committee to express its opposition to the legislation. It
specifically was concerned that requiring MSHA to adopt NIOSH’s voluntary RELs
as mandatory PELs would circumvent the participatory rulemaking process because30
RELs do not go through a comparable public review. In a statement of
Administration policy issued when the House was preparing to vote on H.R. 2768,
the Office of Management and Budget (OMB) similarly noted that “This provision
would mandate the adoption of potentially hundreds of PELs without any input from
stakeholders and without [prior] determination of whether the PEL is economically
and technologically feasible.”
The OMB further said in the statement of Administration policy that rulemaking
already is underway as a result of other bills the President previously signed: H.R.
and would impose burdensome and unrealistic time requirements.” Moreover, by
allowing entities in addition to MSHA investigate certain accidents, S-MINER
would, according to the OMB,
undermine the government’s ability to hold accountable mine operators who
violate mine safety and health regulations since multiple investigations
potentially using different methodologies and reaching different conclusions
29 The Chemical Safety and Hazard Investigations Board is an independent agency of the
federal government that, among other things, investigates and identifies the causes of
30 In addition, the employer group reportedly is concerned that this requirement would set
a precedent that Congress subsequently could apply to OSHA. “House Committee
Approves S-MINER Bill, Amendment Adds Retreat Mining Provisions,” Daily Labor
Report, November 1, 2007.
could prejudice the government’s ability to prosecute civil or criminal violations
of mine safety and health standards that contributed to, or exacerbated, an
Related Legislation. S-MINER was referred to the Senate in January 2008.
It joins S. 1655 (the Miner Health and Safety Enhancement Act of 2007) which was
introduced on June 19, 2007, the same day as the initial version of the S-MINER act.
While otherwise quite similar, S. 1655 does not contain the retreat mining provisions
included in the substitute to H.R. 2768 that the Education and Labor Committee
considered in November 2007 (after the Crandall Canyon incident had occurred). In
addition, S. 1655 does not include the provisions in H.R. 2768 about a study of
substance abuse and related rehabilitation grants (at Section 8), a mine safety
program fund (at Section 9), and the appropriation for MSHA to purchase PDMs.
S-MINER also joins in the Senate H.R. 3877/S. 2263 (the Mine
Communications Technology Innovation Act), which the House passed on October
29, 2007. H.R. 3877 would have the Director of the National Institute of Standards
and Technology (NIST) establish a research, development and demonstration
program to develop best practices, adapt existing technology, and accelerate
development of next generation technology and tracking systems for mine
communications. The Department of Commerce’s NIST also would coordinate with
industry and relevant federal agencies to develop consensus standards for
communications in underground mines.
Previously, the MINER act (Section 6) created within NIOSH an Office of Mine
Safety and Health “to enhance the development of new mine safety technology and
technological applications and to expedite the commercial availability and
implementation of such technology in mining environments.” The 2006 statute
further states that the NIOSH office is “responsible for research, development, and
testing of new technologies and equipment designed to enhance mine safety and
health,” and to carry out this responsibility has the authority to award grants to
encourage the development and manufacture of mine safety equipment and to award
contracts to perform product testing. Separately, the Emergency Supplemental
Appropriations Act of 2006 (P.L. 109-234) awarded $10 million to NIOSH to target
research into safety technologies specifically related to communications and tracking,
among other things, that would be available for use in mines within 24-36 months.
NIOSH, which is part of the CDC, has organized a Mine Emergency
Communications Partnership “to facilitate the development, evaluation, and
implementation of” post-accident communication and tracking technologies. The
partnership initially has focused on applications suited for coal mines. Its members,
who include mining associations, unions, state and federal regulatory agencies,
equipment manufacturers, and researchers, “are expected to share their knowledge
of, and experiences with, communication and tracking systems and provide mine
sites where tests and demonstrations of communication and tracking systems can be31
conducted.” MSHA notes that it has been working with this NIOSH partnership to
31 See the following for additional information: [http://www.cdc.gov/niosh/mining/
help arrange field tests of new communication and tracking technologies, which
could enable mine operators to meet the MINER act’s June 2009 deadline for
inclusion in MSHA-approved plans of wireless two-way post-accident
communication devices and electronic tracking technologies.32
mi neract/mineemergencycommunicationspartnership.htm] .
32 See the following for MSHA-approved communications and tracking technologies:
[ h t t p : / / www.ms ha.gov/ t echsupp/ PEDLocat i n g/ MSHAAppr ovedPEDpr oduct s .pdf ] .