Federal review board reinstates proposed Sago Mine penalties - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

Federal review board reinstates proposed Sago Mine penalties

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Eight years after 12 miners were killed in an explosion at the Sago Mine in Upshur County, a federal review board has reinstated $14,500 in proposed penalties against the Wolf Run Mining Co.

The Federal Mine Safety & Health Review Commission said the nearly 90-minutes that passed before Wolf Run Mining contacted MSHA and mine rescuers demonstrated "unwarranted failure" and "high negligence."

The decision, announced by the U.S. Department of Labor on Jan. 14, overturns Administrative Law Judge Jerold Feldman's 2010 finding of mitigating circumstances.

The review panel said Feldman "made a critical error in his analysis of the violations by concluding that Wolf Run's duty to contact MSHA and mine rescue teams began at 7:23 a.m. rather than at 6:36 a.m."

"The record clearly shows that mine management knew about the accident as early as 6:36 a.m." when the foreman underground at the time reported a "forceful blast of air," the panel noted.

Arch Coal, which now owns Wolf Run Mining, had no comment Tuesday.

"Although eight years have passed, the memories of that tragic day have not diminished," said Joseph A. Main, assistant secretary of labor for mine safety and health. "We are grateful for the commission's decision in this case reaffirming the importance of immediate reporting of mine accidents."

MSHA said the explosion happened at 6:26 a.m., but they weren't notified until 7:50 a.m. and efforts to reach a mine rescue team member at his home didn't begin for another 14 minutes. MSHA subsequently issued a citation and order to Wolf Run Mining for failing to immediately notify the agency of the explosion, failing to comply with the mine's emergency evacuation and firefighting program, and failing to immediately contact the mine rescue team.

Feldman, though, had concluded that commission case law permitted the operator a reasonable opportunity to investigate the event prior to being required to contact authorities. He also reasoned that the operator's negligence in not immediately reporting the incident was mitigated by mine management's wish to execute a rescue attempt and to not be barred from entering the mine.

Feldman also took into account the fact that New Year's Day was on a Sunday in 2006. He reasoned that federal and state offices were closed Jan. 2 in observance of the holiday, making it difficult to reach authorities.

On appeal, a two-member commission majority agreed that Feldman had erred because he miscalculated the time at which the mine operator's duty to report the disaster commenced; treated the intentional nature of the operator's failure to report the explosion and the fact that it happened on a federal holiday as mitigating factors; and failed to consider the fact that, when Wolf Run finally attempted to report the explosion, it relied solely on an off-site management official who had limited knowledge of the explosion and limited information and resources available to him at home.

The panel said "further evidence of high negligence is Wolf Run's apparently intentional delay in contacting MSHA and mine rescue teams."

"The judge erred in treating Wolf Run's intentional delay in contacting authorities as a mitigating circumstance, stating that (their) delay was not motivated by a desire or reluctance to avoid notification," the wrote. "Rather, the delay is attributable to the fact that Wolf Run was conflicted over its concern evacuating survivors, its preoccupation with establishing contact with the missing victims, and its responsibility to notify MSHA.

"Although the operator denies intentionally delaying contacting MSHA, the record strongly suggests that Wolf Run management was motivated not to contact MSHA immediately in order to avoid MSHA enforcement ... for whatever reason, cannot be construed as mitigating its negligence, but is rather evidence of high negligence."

In addition to reinstating MSHA's unwarrantable failure and high negligence designations, the commission assessed the company with MSHA's proposed penalties of $1,500 and $13,000 for two separate citations.

"The operator's intention to assist underground personnel during this emergency, while admirable, is exactly the type of conduct that the [Federal Mine Safety and Health Act of 1977] and the Secretary's regulations are intended to address and avoid," they noted in the opinion. "The moments after a mining accident are difficult and frantic, but crucial to an effective response is strict adherence to an operator's emergency plan and to the relevant MSHA standards governing conduct after an accident occurs."