Inspectors found that there was no air movement in some sections caused by line curtains (used to control air flow) being rolled up for a distance of 60 feet. There were also inadequate on-shift examinations as well as obvious and extensive accumulation of loose coal up to 20 inches deep. (Loose coal accumulations can provide the fuel for mine fires.) The section foreman was observed operating the continuous mining machine with the ventilation line curtain 29 feet from the working face where the plan required a maximum of 20 feet. Rock dust – a critical explosion protective measure – had not been applied in seven entries to the required 40-foot distance. Miners were withdrawn from the affected area while the violations were being abated.

On April 9, 2010, following the tragic explosion at Upper Big Branch Mine, MSHA received a hazard complaint about Independence Coal Co.’s Cook Mine regarding water in the escapeway. Upon inspection of the mine, six 104(d)(1) orders were issued for taking illegal deep cuts of 30 feet into the coal face when the plan allowed a maximum of 20 feet, blockage of the primary escapeway with water, inadequate pre-shift and on-shift examinations, and excessive widths beyond the roof control plan parameters. MSHA inspectors also found that numerous roof bolts were sheared off and damaged, increasing the risk of hazardous roof falls.

The issuance of a 104(d) order enables federal mine inspectors to order miners withdrawn or prohibited from entering an area of a mine due to the unwarrantable failure of the mine operator to comply with safety and health regulations. An “unwarrantable failure” is aggravated conduct constituting more than ordinary negligence and is characterized by such conduct as “reckless disregard,” intentional misconduct,” “indifference” or a “serious lack of reasonable care.”

A 104(d)(2) order refers to unwarrantable failure withdrawal orders and requires that an inspection with no similar violations (clean inspection) be conducted before the 104(d)(2) order sequence is terminated. This “clean inspection” may be accomplished within the framework of a regular inspection of the mine in its entirety and/or within the framework of any other inspection conducted for enforcement purposes where there are no 104(d)(2) violations.