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Scrutiny minimal at mine with high rate of injuries




HARLAN, Ky.

At daybreak last Dec. 3, a Sunday, two federal inspectors responding to an anonymous complaint paid a surprise visit to the Stillhouse Mine No. 1 in Harlan County.They found eight men working more than five miles underground with the mine fan turned off – an illegal condition as dangerous as any in coal mining.

The fan had been off for approximately six hours, the inspectors determined, so there was no fresh air circulating to disperse potentially explosive concentrations of methane gas and coal dust – both of which were in plentiful supply.

“This was an intentional and flagrant violation that very likely could result in a methane explosion,” inspector William Clark wrote in his notes, which also made reference to several other serious violations.

It was 16 months to the day after two Stillhouse miners had been crushed to death in a massive roof fall that the federal Mine Safety and Health Administration concluded was the result of the company’s “high negligence” and “reckless disregard” for the law.

But despite the two incidents and an overall safety record well below the industry average, Stillhouse Mining LLC has not received the heightened regulatory scrutiny reserved for socalled “problem operators” – which some officials say is crucial to making mining safer.Indeed, federal and state records show that Stillhouse, even with its documented problems, has received little more than the minimum number of inspections required by law.

“They should have been targeted for increased scrutiny after two miners died,” said Tony Oppegard, a Lexington-based mine-safety attorney and former federal and state mining official. “You need to let an operator know there’s going to be serious consequences for that type of behavior.”

Federal officials have proposed penalties totaling about $1.1 million in connection with the miners’ deaths in August 2005 and the Dec. 3 violations. But nothing has been collected because the company is either contesting the fines or still can decide to contest them.

Officials of Stillhouse and its parent company, Black Mountain Resources, did not respond to several requests to discuss the company’s safety record. Black Mountain Vice President Ross Kegan of Jenkins initially agreed to talk to a reporter but later sent word through a secretary that he was “permanently” unavailable.

MSHA officials did not respond to repeated requests to discuss the agency’s enforcement history at the Stillhouse Mine No. 1. Instead, the agency provided a statement from MSHA head Richard Stickler summarizing “his philosophy on allocating the agency’s resources for inspections.” The statement said Stickler prefers “to have flexibility to target the agency’s resources on problem mines and specific hazards that are causing serious accidents.”

Johnny Greene, head of Kentucky’s Office of Mine Safety and Licensing, declined to be interviewed. Chuck Wolfe, a spokesman for the state Environmental and Public Protection Cabinet, said after talking with Greene that state mining officials considered Stillhouse’s track record to be “not anything exotic.” “Our personnel in the field go to these mines as frequently as they feel there’s a need to,” Wolfe said. “The inspection history has to speak for itself.”

Mine’s injury rate

Located about a mile south of Cumberland on Ky. 2006, the Stillhouse Mine No. 1 has employed about 70 workers on one maintenance and two production shifts, yielding about 540,000 tons of coal annually, according to federal records.

Since 2001, employees at the mine have been injured at a rate more than double the national average for the coal industry as a whole. Last year, the injury rate at Stillhouse was 2.7 times higher than average; the year before that it was 2.3 times higher.

And since 2004, Stillhouse has been cited by federal inspectors for an average of 155 violations per year – 1.8 times the rate for all underground mines nationwide.Most of these violations resulted in fines ranging from $60 to $4,000 – the majority a few hundred dollars or less. Since 2000, fines totaling more than $130,000 have been paid for violations at Stillhouse Mine No. 1.

The August 2005 roof fall at the Stillhouse mine killed 23- year-old Brandon Wilder, a scoop operator with less than a year of mining experience, and 39-year-old Russell Cole, a veteran section foreman. Federal and state investigators concluded that the company was not following its approved roof-control plan; had not adequately trained its employees; and had neglected to communicate adequately with them about how mining was supposed to be done.

Yet, despite this and Stillhouse’s above-average injury and violation rates, MSHA made only four annual inspections at Stillhouse, the minimum required by federal law, during 2005 and last year. Except for the time devoted to their investigation of the fatalities, federal inspectors spent about 100 fewer hours at Stillhouse over the two years than the average for other mines nationally, MSHA records show.

Kentucky’s Office of Mine Safety and Licensing made just one more inspection than required by state law during the two-year period, although agency personnel also visited the mine for such routine matters as safety analysis and electrical inspections.

Oppegard, who was co-counsel for the widow of one of the miners killed in 2005, said much more federal and state regulatory oversight of Stillhouse is warranted. “I understand you have manpower restrictions, but this mine should have been targeted for increased scrutiny,” he said. “It’s easy to say let’s give extra vigilance to bad operators, but it isn’t done.”

The state’s conclusion that Stillhouse’s safety record was not troubling reflects an attitude that is unique to the coal industry, said Oppegard, whose client, Claudia Cole, recently agreed to a confidential out-of-court settlement in the lawsuit she filed against the company in connection with the death of her husband, Russell. “Coal is the only industry in the U.S. where an operator can have a bad safety record, and enforcement people say it isn’t that bad,” Oppegard said. “There’s a tendency for even regulatory agencies to think, ‘This is coal mining, it’s dangerous, a couple hundred violations isn’t that bad.’ ”

Bill Caylor, president of the Kentucky Coal Association, is among those who have called for more scrutiny of problem coal operators – rather than an increased number of mandatory inspections for all. Asked to assess the regulators’ response to Stillhouse, Caylor said he is reluctant to criticize:

“These are honest, hardworking people trying to do a good job,” he said. “Why they didn’t concentrate more on this mine, I don’t know.” Caylor also said his group doesn’t condone operations that fail to comply with the law. “I hope it’s the exception and not the rule. We will not tolerate it if it is the rule,” he said. “We’re not a perfect industry, and people who run these type operations need to clean up their act or get out of business.”

Prosecution advised

MSHA did initiate a criminal investigation of Stillhouse after the deaths of Wilder and Cole.

Agency officials in Washington recommended in March that former Stillhouse mine Superintendent Lonnie Moore be prosecuted for allegedly violating federal health and safety standards, and that charges be sought against two mine foremen, Doyle Coldiron and Gary Rutherford, for allegedly lying to MSHA investigators.

The case is under review by the solicitor’s office at the U.S. Department of Labor in Washington and has not been referred to federal prosecutors in Lexington for possible presentation to a grand jury.

Criminal referrals in minesafety cases are relatively rare; MSHA made only six nationwide all of last year and just 16 in the past four years. Jerald Feingold, the Labor Department attorney conducting the Stillhouse review, declined to discuss it.

Reached at the Stillhouse mine, Rutherford declined to be interviewed because, he said, “the truth’s not printed.” He said he would pass a message to Coldiron, who was working underground at the time. Coldiron did not call back, nor did he respond to a second message left for him at the mine.

Moore no longer works at Stillhouse. An employee at Black Mountain Resources refused to say how he could be reached. “At this time, we’d have to be unavailable for comment,” said the employee, who refused to give his name.

In March 2006, MSHA imposed civil penalties on Stillhouse totaling $360,000 for six violations stemming from the fatalities. MSHA accused Stillhouse management of being “highly negligent” in connection with three of the six violations. But because the company is contesting the penalties, MSHA has collected nothing.

Any possible federal criminal charges that could stem from the Dec. 3 inspection are on hold because the earlier criminal investigation has not been concluded. MSHA inspectors characterized four of the Dec. 3 violations as “flagrant” and recently proposed fines totaling $761,000 for those violations. They have not been paid because Stillhouse is considering whether to contest them, according to MSHA.

During the surprise inspection that resulted in those citations, Clark and fellow inspector Daniel Johnson also found sections of mine roof that were cracked, leaking water, supported only by thin metal straps and in danger of collapse. Indeed, they noted that a section of roof 4 feet thick already had fallen in one mine entryway.

The fact that the fan was off for hours posed a particular problem, given that the mine routinely liberated 100,000 cubic feet of methane during a 24-hour period, federal records show. And the inspectors found accumulations of coal dust up to 10 inches deep on the mine floor. The mining crew was so far from the surface that when the inspectors seized the mine’s telephone and ordered the men out, it took them approximately an hour to reach daylight.

State case on hold

In April 2006 the state filed administrative charges against Stillhouse officials Moore and Rutherford in connection with the 2005 fatalities and sought to revoke the certifications that allow them to work underground. But attorneys for the two men received approval for those proceedings to be held in abeyance pending resolution of the federal criminal investigation. Nearly a year later, they remain on hold.

And although state officials months ago obtained records of MSHA’s Dec. 3 inspection at Stillhouse, they have made no effort to take action against the individuals allegedly responsible for the violations or to penalize the company itself. The state could seek to revoke certifications of company officials, and it could invoke a provision of a new law that allows for substantial financial penalties against the company, based on its coal production.

Mike Haines, attorney for the state Office of Mine Safety and Licensing, said it has not acted because MSHA has not formally referred the case to the state. He said he did not think he could initiate a case without a referral. But Haines also acknowledged that the state has not requested a referral from MSHA. “I don’t know that we ask them for referrals,” he said.

Asked why the state has not asked MSHA to refer the case, Wolfe, the cabinet spokesman, said, “They’ve apparently never done that before. Nobody can remember that being done.”

MSHA spokesman Dirk Fillpot said the agency does not refer cases to state authorities. Once MSHA informs the state of its findings, Fillpot said, it is up to Kentucky “to determine whether and when to initiate any enforcements actions.”

Oppegard described as “ridiculous” the state’s position that a referral is needed. He said the state already has ample information to file civil charges in regard to the Dec. 3 inspection.”To question whether you can bring the case without an MSHA referral is at best disingenuous,” Oppegard said. “Especially on the heels of a double fatality, it should have been filed very quickly.

“This is a test to determine the state’s resolve,” he said, “how tough state enforcement is going to be to protect coal miners.”

This report originally appeared in the June 2 edition of The Courier-Journal in Louisville.


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