Mine Safety and Health News
The only independent, credentialed, legal news service covering
MSHA and FMSHRC mine safety and health issues and case law
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
By Ellen Smith of MSHN with Howard Berkes, Anna Boiko-Weyrauch and Robert Benincasa of NPR
Investigation Finds $70 Million in Unpaid Fines Leaves Deadly and Crippling Legacies
Mines with delinquent penalties since 2009 have an injury rate 50% higher than mines that paid their fines,
and mines delinquent before and since 2009 have an Injury Rate 71% higher than mines that paid their fines,
according to an analysis by Mine Safety and Health News and National Public Radio.
The latest snapshot of delinquent penalties shows $77 million in penalties that operators have not paid for
mine safety violations. Twelve controllers have over $1 million in delinquent debt -- the highest amount of
delinquent penalties since MSHN began covering delinquencies 20 years ago. Ninety-nine controllers and their
associated operations owe over $100,000.
While MSHN has covered delinquent debt for years, this is the first time with statistical confidence that a
correlation is made showing that mine operators who fail to pay fines have a higher injury rate than responsible
operators who pay.
NPR was able to run 20 years’ worth of raw MSHA data, and compare it with the spreadsheets of delinquent
penalties furnished by MSHA that MSHN has relied on in reporting on delinquent cases.
The actual percentage of controllers with delinquent fines is low, and represents only 7% of all mine operators
in the country. That percentage hasn’t necessarily changed over the years. What has changed is the amount of
delinquent fines, and the sheer volumes of delinquent penalties associated with them.
In 1994, the total amount of top 10 delinquent penalties by controller amounted to $2,186,666 (1 MSHN 480).
In 1995, the “top-10" controllers with delinquent civil penalties rose to $3,155,329.85 (2 MSHN 663). In 2014, the
top 10 delinquent controllers owe $19,337,986 – a 784% increase in 20 years.
How We Analyzed the Data
In looking at the numbers,
MSHN and NPR excluded from
its analysis any delinquency less
than 90 days old, which is a
formula MSHN has used for
years in determining delinquent
debt. This takes into
consideration any time-lag that
MSHA may have in inputting
data. However, the majority of
operators are not delinquent,
even when taking into
consideration the 1-90 day
period.
MSHN and NPR also
excluded delinquent fines listed
by MSHA as “Hold Status”
because those cases were back
in the appeals process.
To determine injury rates,
MSHN and NPR excluded
minor injuries that did not result
in days away from work or
1 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
When Rome Mead was crushed in a mining accident
at the D&C Mine, the company had 1,500 delinquent
penalties dating back to 2006, with 33% of those final
orders deemed S&S. He was a miner for 40 years until
his death in 2009.
changes in work assignment.
While penalties are assessed against mine
operators, which may be subsidiary companies of a
“controller” or corporate owner, MSHN and NPR
aggregated data by controller to show the total owner
or corporate debt, since the debts and profits are
included in Securities and Exchange Commission
data for publicly-traded companies. Total debt for
each mine controller is based on the controller of
record at each mine at the time the fine became
delinquent.
The bottom line is that thousands of mine
operators fail to pay safety penalties, even as the y
continue to manage dangerous – and sometimes
deadly – mining operations. Most unpaid penalties
are between two and 10 years overdue; some go
back two decades. Government officials seem
unable, or are unwilling, to make mine owners pay.
The Real Life Consequences
Not only are the monetary numbers staggering,
but the statistical analysis found that delinquent mine
operators reported close to 4,000 injuries in the years
they failed to pay. Of those 4,000 injured miners, 58
miners were left permanently disabled and never
able to work again. Twenty-five miners were killed
while working at mines with delinquent fines.
When Wilson “Rome” Meade was crushed in an
accident at the D&C Mine in Kentucky on June 9,
2009, the mine had delinquent penalties going back
to 2006, with 1,500 violations that had become final
orders, but left unpaid. Of those violations, 33% of
them were listed as S&S. There were delinquent
penalties for repeated violations of accumulations of
Jack Blankenship was trapped by a 300 pound rock for
two hours before being rescued at the Alma Mine that
had $200,000 in delinquent penalties, including
penalties for roof and rib violations. He is permanently
disabled.
(Photo by Anna Boiko-Weyrauch)
combustible materials with piles of flammable
cardboard boxes on the ground; excessive grease
caked on mining equipment; and explosive coal dust
four inches deep on the mine floor, the fire
suppression system had been jury-rigged with tape,
equipment was badly maintained with broken
brakes, loose bolts and missing lights. The mine was
cited 40 times in the previous two year period for not
maintaining mining equipment. The mine was cited
for failing to maintain proper roof support, and
failing to maintain proper rescue gear.
Disabled for Life
One of those miners left permanently disabled
was Jack Blankenship who, at age 37, was slammed
and trapped by a 300 pound rock fall at the former
Massey Energy Aracoma Alma Mine, where four
years earlier, a fire had killed two miners. For two
hours, he pressed his panic button and no one came
to help him. In the two year period before
Blankenship was trapped, the mine was cited by
MSHA more than 120 times for roof control
violations that included failure to conduct
examinations for loose roof and proper roof support,
and roof plan violations. At the time Blankenship
was trapped, Aracoma Alma had $200,000 in
delinquent MSHA penalties.
The mine failed to report Blankenship’s injuries,
despite a fractured spine, pinched nerves, a
reconstructed shoulder, and a head injury. Because
of the company’s failure to report, Blankenship was
denied workers’ comp benefits. He sued the
company, and the new owner, Alpha Natural
Resources, which has slightly over $500,000 in
2 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
“We have no silver bullet. I mean we don’t have the authority to go in and just shut
down a mine because of X. There has to be some reason based under the law for the
actions that we take. And in terms of the way that the law is geared, it is based on a
specific condition and a specific area and the threat to the miners or the failure of the
operator to comply.”
— Joseph Main, Assistant Secretary for Mine Safety and Health
delinquent fines, entered into a confidential
settlement. MSHA did not know of Blankenship’s
accident until it was uncovered in this investigation,
and Blankenship said he was recently interviewed by
MSHA officials.
MSHA Is Doing Everything Possible
MSHA-head Joe Main
said he is doing everything
possible with the legal
resources available.
Main said that part of
the criteria for MSHA’s
impact inspections, is
targeting mines with
delinquent penalties and
chronic violations.
“Mines that’s
operating
today faces a
Joseph Main, Assistant
whole
different
set of
Secretary of Labor for
enforcement
challenges
Mine Safety and Health
and tools if they decide
they’re not going to comply with the Mine Act,”
Main explained in an interview. “We do not wait for
them to rack up fines before we do something these
days like we did in the past. We have a program, like
on a monthly basis, we’re screening mines for
impact inspections. I think we’ve had well over 600
mines that’s went through that process. And we’re
screening on a routine basis as the regulations
prescribe for mines that may be chronic violators.”
Main also blamed the backlog of cases before
the Review Commission as having a negative impact
on miner safety. The backlog started around 2006,
when some operators made the decision to challenge
most of not citations regardless of merit. It was also
a time when MSHA ramped up enforcement after the
2006 Sago, Aracoma, and Kentucky Darby mine
disasters, followed by the 2007 Crandall Canyon
disaster.
Main also said that many of the mines with
delinquent penalties are now closed, and not on
MSHA’s radar anymore. However, he did not
address the fact that the controllers of the closed
mines may have other operations.
Main was also critical about the MSHN/NPR
analysis, which included mine operators such as
Alpha Natural Resources with delinquent debt at
around $500,000, and last year’s delinquent fines
were at $627,891 in MSHN’s one day “snap-shot”
(20 MSHN 194). Main said that although Alpha has
a lot of delinquent fines, they “traditionally pay their
bills.”
However, some Alpha mines do show up as
having delinquent penalties, and accidents reported
during the time of delinquency.
One of the Alpha operators recently targets by
MSHA was Dickenson-Russell Coal Co., LLC’s
Cherokee Mine in Dickenson County, Va. While it
doesn’t have a significant amount of delinquent
penalties, the most recent delinquency stems from
August 2013, it still fits the MSHN/NPR profile of a
mine with delinquent fines and problems.
On June 10 of this year, an MSHA enforcement
team traveled to the mine ahead of the inspection
team and secured the mine’s communication systems
to prevent advance notice. The inspection of
underground belts and equipment and surface
equipment and installations resulted in the issuance
of 25 104(a) citations and five 104(d)(1)
unwarrantable failure orders. This was the first
impact inspection at this mine.
Among the conditions found was insufficient air
velocity on the belt air course. Using an
anemometer, inspectors detected no air movement in
the belt entry, and other problems with inadequate
ventilation.
At this mine with delinquent penalties, 10
miners have recently been diagnosed with black lung
disease. Most of the reported NFDL injuries during
the time of delinquent penalties involved slips, trips,
falls, and sutures.
In terms of dealing with delinquent operators,
other than impact inspections and strict enforcement,
Main said, “We have no silver bullet. I mean we
don’t have the authority to go in and just shut down
a mine because of X. There has to be some reason
based under the law for the actions that we take.
3 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
“Speeding tickets would be useless if the drivers weren’t forced to pay the ticket. Same
thing is true of the civil penalties that are assessed for mine safety violations. If the
operator knows that he can get by with not paying those expenses, then there's no
incentive for the operator to comply with the health and safety regulations that are
embodied in the Mine Safety Act.”
— Retired U.S. Assistant Attorney Davis Sledd
And in terms of the way that the law is geared, it is
based on a specific condition and a specific area and
the threat to the miners or the failure of the operator
to comply.
“In terms of how we view our scofflaw program,
it isn’t a ‘let’s take ‘em to court’ approach to life. It
is looking at the different circumstances we have
with the different mine operators that’s before us and
trying to figure out in the best interests of bringing
about compliance and the implementation of the
act.”
Former Assistant U.S. Attorney Explains
What’s Wrong With the System
Davis Sledd, a now-retired former U.S. Assistant
Attorney in Kentucky, prosecuted many mine safety
cases in his career.
He called the number of delinquent fines,
“inexcusable” and “repulsive.”
“Whatever law enforcement can do to improve
the regulatory scheme, the benefit will be to the men
and women who mine coal,” Sledd said. “[S]afety
costs money. There’s no two ways about it. If you’re
gonna ventilate a coal mine properly, if you’re gonna
put fire suppression systems on the moving parts, if
you’re gonna support the roof, all of that costs
money. And operators who refuse to pay those
expenses to increase their profit margin, in my
opinion, should be removed from the industry and
not allowed to mine. There are plenty of
entrepreneurs out there I would think that will
undertake the mining... and will comply with the
health and safety regulatory scheme and if an
operator proves over time that he won’t do it, then
get rid of him and bring in somebody who will.”
Sledd said to think of the civil penalties as
speeding tickets.
“Speeding tickets would be useless if the drivers
weren’t forced to pay the ticket. Same thing is true
of the civil penalties that are assessed for mine safety
violations. If the operator knows that he can get by
with not paying those expenses, then there's no
incentive for the operator to comply with the health
and safety regulations that are embodied in the Mine
Safety Act.”
Sledd said that “All of these health and safety
regulations are rational, they’re beneficial and they
should be complied with. And if an operator’s not
willing to comply with them, in my opinion, law
enforcement should force that person out of the
industry.”
Sledd was quick to praise the MSHA inspectors,
and felt that they are doing the best job that they can
do. But when it comes to prosecuting mine safety
cases, he believes that these cases simply don’t get
the attention from the U.S. Attorneys’ Offices that
drug or gun cases get. MSHA cases “are fairly low
priority,” Sledd said.
Sledd believes that provisions in the Mine Act
could be used more effectively to pursue criminal
cases against scofflaw operators with serious
violations.
“The regulatory scheme would be greatly
improved if mine operators could be put out of
business, prevented from running coal if they have
demonstrated a refusal to comply with the regulatory
scheme which includes paying the civil penalties that
are assessed.”
At the time of the April 5, 2010, Upper Big Branch
disaster, Massey-controlled UBB had $240,000 in
delinquent penalties.
Focus on the Controller
Sledd also said that enforcement needs to focus
on the controller of the company, and not necessarily
4 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
the mine operator.
“Here's something that I think needs to be made
clear,” Sledd explains. “A mine operator who wants
to go into business mining coal has to provide to
MSHA a document called a legal identification
report. And on that report they identify who the mine
operator is. And when MSHA assesses a civil
penalty it's generally assessed against the operator.
“Now the operator may not be the most
important person in running that particular coal
mine, I think the work that you're doing in your
analysis, is you're concentrating on what you're
calling controllers of coal mines. Which is really
where the analysis needs to be centered. The people
who are responsible, who are controlling the mining
operation are the people that should have both civil
and criminal responsibility for their operation.
Sledd said he believe the controllers take great
pains to conceal their relation to the mining operator.
“As you know under the Mine Safety Act, an
operator is defined as a person who owns, controls or
supervises a coal mine. That term ‘controlled’ is not
defined. It's such common sense, you would think it
doesn't need a definition. But in order to bring a
court enforcement you do need a legal definition of
who is a controller of a coal mine.”
Sledd further explained, “With that definition,
then the government can impose both its civil and its
criminal enforcement against the actual controller
rather than who has been identified as the operator of
the mine. Which my experience was that sometimes
these people who were identified as operators were
not really running the show. And the people who
were running the show kept their identities
concealed. [The NPR/MSHN] analysis attaching
violations and past due civil penalties to the
controllers is very important because it paints a more
accurate picture of the situation that law enforcement
confronted with.”
Going Up the Chain of Command
Sledd said the most difficult part of prosecuting
mine safety cases “was to take the responsibility for
health and safety violations up the chain of
command.
“I found it difficult in the cases that I tried to
work, very difficult, to take responsibility up the
chain of command to the people who were really
responsible for the decisions. ... You had to identify
them first. You had to prove that even though they
weren't underground in the mine on a daily basis,
they weren't acting as a section foremen directly
controlling the miners, you had to prove that they
were in fact controlling the operation of that mine...
“These decision makers created the culture that
the mine worked in. Whether safety was emphasized,
whether it was disregarded, that sort of thing. I think
it would be more effective if the enforcement
scheme was geared toward the actual decision
makers rather than to that person or that company
that the controller identifies as the operator on the
form that's submitted to MSHA. It's one area that
could be improved and it would be effective because
going after the actual decision makers, that's where
you solve the problem.
“Assessing penalties against section foremen, of
putting section foremen in jail because of their
willfull safety violations, that has an effect. It's better
than nothing, but it doesn't really get to the root of
the problem.”
No Ability to Collect on Judgements
Another part of the problem identified by the
MSHN/NPR analysis is the lack of ability for MSHA
to collect on a final court judgement.
Since 2007, the government has sought
judgements in 34 cases against mine operators who
had a total of $16.5 million in delinquent penalties.
Of that amount, the government settled or the court
ordered payments totaling $5.9 million. However, of
that amount, only $783,074.18 has been paid, with
some operators completely ignoring the court orders
to pay.
Sledd said in his cases, “I was certainly aware
that we had court judgments that we didn't have the
tools or the ability to actually collect.”
“The government simply doesn't have the
resources” to identify assets and “a tool to impose
responsibility,” Sledd said. “It's a weakness in the
law ... the asset is owned in the name of a
corporation or an LLC. In order to place
responsibility for the civil penalties for the fines or
the debt on the individual, that's a process – the term
of art is piercing the corporate veil. The Dept. of
Justice has to convince the court that the true
ownership of these assets is not in these corporate
entities, which are perfectly legal and have a valid
reason, but are in fact this individual. If the court
agrees, then the government can enforce its
collection tools against the individual, that's the way
it's supposed to work.”
“In my opinion, if you have a mine operator who
has proven that he's not going to comply with the
regulatory scheme, he has thousands, millions of
dollars in unpaid civil penalties, he's sacrificing the
health and safety of his coal miners for his profit. In
my mind, the most effective tool would be a
mechanism in the law to prevent that man from
mining coal.”
5 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
“My experience in working with MSHA over 22 years, is every assistant secretary,
regardless of the administration, was frustrated that bad mine operators didn't pay
penalties. Nobody has sympathy for mine operators who violate the law and don't pay
penalties....The current legal framework does not work.”
— Ed Clair, retired Associate Solicitor of Labor for Mine Safety and Health
Should a Bond System Be in Place?
Sledd, with Ed Clair, who is now retired but was
MSHA’s chief lawyer at the Solicitor’s Office for 22
years, both suggested that a bond system should be
in place to assure the collection of fines.
Clair agreed with Sledd that the current law is
inadequate.
While a mine operator does have to correct
violations, “civil penalties are to be a further
inducement to ensure future compliance. Most
assuredly that beneficial effect of the law is lost if
the mine owner doesn't pay,” Clair said.
“My experience in working with MSHA over 22
years, is every assistant secretary, regardless of the
administration, was frustrated that bad mine
operators didn't pay penalties. Nobody has sympathy
for mine operators who violate the law and don't pay
penalties,” Clair said, adding that it is a “question of
resources and inadequacy of law to address the
problem.” Clair added later, that the “current legal
framework does not work.”
Both Sledd and Clair agreed that other models
make it easier to ensure compliance and payment of
delinquent penalties. For instance, demanding a
bond, or, the ability to shut down a mine if
delinquent penalties aren’t paid.
Clair said that his most frustrating case was
that of Kentucky Darby, where four miners were
killed in an explosion on May 20, 2006. The
controllers from that mine, along with several other
mines they operated, have a total of $2,960,815 in
delinquent debt between eight operations. Clair said
they had “no business continuing in the industry.”
“There's been a lot of efforts devoted over the
years to try to get mine operators to pay the debt. I
would say at some point the frustration level tips the
balance,” Clair said adding, “the tools I have just
aren’t sufficient, the law needs to be changed.”
Clair added that the delinquencies also affect the
MSHA inspectors.
“The inspectors will tell you that they are being
undercut by mine operators who fail to pay penalties.
That the loop isn't closed when the enforcement
process fails in its final, and ultimate aspect, of
actually getting the mine operator to pay the
penalty... it's a common complaint.”
But, Clair added at the end of the interview,
“this isn’t inept government. The law is inadequate.”
It’s Clear the System Isn’t Working
"To the people who continue to run an operation
that puts people at risk on a daily basis, this is a
bonanza," said former MSHA head Davitt McAteer.
"This is to them, 'I can beat this system. This is the
kind of attitude that leads to mine disasters."
Tony Oppegard, an attorney and miners’
representative who represented widow Mary
Middleton during the Kentucky Darby accident
investigation said "Not paying the fines ...
perpetuates this whole system of lawlessness. If I
don't have to pay a fine, what incentive do I have to
provide a safe workplace? I'm going to do it as
cheaply as I can [and] cut as many corners as I can,"
he said.
Officials at the National Mining Assn. declined
to be interviewed, but NMA said in a written
statement that it "believes that all truly delinquent
fines should be paid."
Legislation Dead-On-Arrival
Changes to fix this
problem won’t come
easily. One of the people
who backs a legislative
change is Congressman
George Miller of
California, the ranking
Democrat on the House
Labor Committee. Miller
was in Congress in 1977
when the Mine Act was
passed. He has poked,
prodded and cajoled
Congressman George
Congress for changes,
Miller, D-Calif., was in
where it was clear to him
Congress when the
that the Mine Act had
Mine Act passed in
loopholes with deadly
1977. He has sought
consequences.
legislation since 2006
Legislation introduced
to close loopholes that
by
Miller
in the House
would allow delinquent
would have included
mines to stay open.
6 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
“Here, an owner of a mine can put several hundred mine workers into an unsafe
position, have them injured, be assessed a fine... and then tomorrow continue work as if
nothing happened. That’s what the law is in effect doing today, and it’s the congress that is
allowing that to continue.”
— Congressman George Miller, D-Calif.
provisions that would have allowed MSHA to shut
down a mine for any fine that was 6 months
delinquent.
The bill was killed in a mark-up on April 9 of
this year by Chairman John Kline (R-Minn.), who
called the mine safety bill politically motivated and
unnecessary.
Chairman Kline said: “This amendment reflects
the same flawed belief that simply passing more
legislation will protect miners. We believe a better
approach is to build on the progress we've made
through responsible and aggressive oversight, and
that's precisely what this committee will do.”
During the mark-up, Miller responded: “I
appreciate Mr. Kline’s attention, but MSHA does not
have the authority to implement the necessary
reforms that will save miners’ lives when a rogue
mine operator seeks to put production ahead of
safety.”
In the interview about delinquent fines, Miller
said, “The current law isn’t worth the paper it’s
written on. But obviously the Congress is not
interested in changing this law.... We ricochet from
one mining accident to another. We have all the
speeches on the floor. We have everybody rushing
to the mine site. We have the US Senators going
there. We have the Congress people going there.
And then nothing happens, because time is on their
side. And certainly in this Congress, with the
current makeup of the Congress, they’re not about to
pass a stronger law that would hold these companies
and these individuals responsible.”
Even Letters From Congressmen Don’t Matter
Even a letter from Congress did not prompt the
controllers of the Kentucky Darby Mine to pay the
fines owed from many years of operation (12 MSHN
388).
Miller firmly believes that even another mine
disaster would not prompt changes.
“The risk in between leaving home and coming
home is really quite severe and especially severe in
these mines where the mine owners have simply
decided they’re going to ignore the law, they’re
going to game the system, they’re not going to pay
their fines, they’re not going to meet the safety laws
in this country. They’re going to continue to mine
coal and that’s just a savings in the cost of
production for them…there’s no appetite to change
this law and I’m not even sure a tragic new accident
would change the Congress’ attitude on this, because
the people who represent the coal states aren’t
willing to do this.”
Miller was one of several House members, along
with Rep. Nick J. Rahall, D-W.Va., who supported
the Robert C. Byrd Bill that would have closed what
many believe are loopholes in the current law. The
“If you don’t pay your taxes we eventually take
you to court and we get, we collect the money. You
don’t get the profit by not paying your taxes. If you
drunk drive, the 2 nd time you do it you don’t get to
drive in many states. If you act in an irresponsible
fashion, you pay a price.
“Here, an owner of a mine can put several
hundred mine workers into an unsafe position, have
them injured, be assessed a fine... and then tomorrow
continue work as if nothing happened. That’s what
the law is in effect doing today, and it’s the congress
that is allowing that to continue.”
Miller called the current law obsolete with
regards to collecting fines or holding delinquent
operators accountable. “The mine safety agency has
a very weak hand to play. Let’s say the price of coal
goes way up and they want to mine coal 24 hours a
day. They owe millions of dollars. Why should they
get to reopen the mine? Today they can. And they
still don’t have to pay the fines.” Miller said that
closing the loopholes “ isn’t a punishment. It’s to try
to get irresponsible mine owners to obey the law.
There are many, many mine owners that operate
every day within the law. If they’re fined they pay
their fines. They make the improvements in the mine
and they move on.” Then, Miller added, there “is a
group of people who have chosen not to do that.
They’re essentially outlaw miners…they’re
billionaires. They’re multimillionaires. They’re the
pillars of the community. They’re still outlaw
miners who are endangering people’s lives.”
7 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
Controllers Owing Over $1 Million in Delinquent MSHA Penalties
Top Delinquent Controller:
Horace Garrison Hill
Horace Garrison Hill is the controller and owner for D&C Mining Corp., located in Harlan County, Ky.
Killed at this mine was Wilson “Rome” Meade who was crushed on June 9, 2009, by a trailer overloaded with
10,000 pounds of concrete blocks that was hitched with a chain that could never hold the weight (16 MSHN 219).
Hill’s D&C has the most delinquencies at single mine, and owes MSHA $4,354,975 in delinquent penalties.
D&C is now abandoned, but at the time of Meade’s death, D&C was already hundreds of thousands of dollars
in debt for MSHA violations – with delinquencies dating back to 2002. In December 2007, MSHA warned D&C
that a potential pattern of violations existed at the mine. D&C was advised to reduce the violation frequency rate
or face an order of withdrawal for each S&S violation cited in the future, as provided in the agency’s pattern of
violations standard. The mine avoided being placed under pattern sanctions.
In the years that MSHA did not collect
fines when D&C had delinquencies, the mine
was cited 1,500 times for safety violations.
There were four injuries during the time of
delinquency and Meade’s death. During the
delinquency time period, the mine produced
almost 800,000 tons of coal, worth over $50
million according to the Energy Information
Administration.
The mine closed after 10 surprise blitz
inspections by MSHA. In 2012, the U.S.
District Court in London, Ky., ordered D&C to
pay $1.67 million plus interest and
administrative fees for delinquent MSHA
penalties. It’s not known why the agency did
not go after the full, delinquent amount.
MSHA reports that Hill, as the owner and
controller, has paid less than $25,000, and
MSHA was granted a lien on the property (20
Hill’s trucking company advertises that they will haul “to and
MSHN 188), but it is not clear how that lien
from your location in 25 states.” The website also advertises
will be enforced. The court ordered D&C to
services for coal sales and coal mining.
keep all property in which it holds an
ownership interest securely at the site of its
existing mine (Mine ID 1518182), and to not sell or move any or its property to any other location.
Hill also owns coal processing facilities in Kentucy and Virginia: the F&D Tipple ID # 1511615, Prep Plant
ID # 1515772; and, Mill Creek Surface Mine ID # 1519183. He also owns Hills Trucking Corp. of Galax, Va.,
with a mailing address of Fries , Va., according to DOT records. MSHA records show three contractor ID numbers
for Hills Trucking of Galax: ID #s 7LH, A1549 and JG4. DOT list the ID number of the trucking company as DOT
# 259465 with a fleet of 71 trucks. Hill is also listed as the owner for Hill Brothers Restaurants, with a restaurant
called “Porky’s” in Galax, Va., with the same P.O. Box mailing address as his trucking company.
When NPR sought out Hill for a radio interview for this story, Hill told NPR that his mine managers were
responsible for everything that happened at D&C. “They control everything. They do everything,” he said. “I get
the blame when they do it.” Hill then declined to say more or answer any more questions.
Last year, in a deposition in a lawsuit, Hill said he is the sole owner and officer of D & C Mining. Kentucky
corporation records also list Hill as the sole officer of D & C.
NPR then sought out D&C’s former mine superintendent, Barry Rogers, who said he did not want to talk
about D&C. “Them fines are not mine. I don't own no part of D&C." At the coal processing facility where Rogers
worked was a truck for Hills Coal and Trucking dumping coal at the plant.
8 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
Group of Controllers Weave Tangled Web of Delinquent Fines
Outstanding penalties of controllers Ralph Napier, Connie Napier, John North, Jack Ealy and associated
mining operations as of Sept. 30, 2014
Harlan Fuel
K&D Mining
K and D Mining Inc.
Kentucky Darby LLC
L & E Mining
Mill Branch Mining Inc.
NECO Energy Inc.
Orion Resources Inc.
$1,306
$103,947
$1,601,057
$536,608
$55,499
$85,180
$153,737
$422,478
(Ralph Napier and Connie Napier).
(Jack H. Ealy, Ralph Napier, and John D. North).
(Jack H. Ealy, Ralph Napier, and John D. North).
(Ralph Napier, and John D. North).
(Jack H. Ealy, Ralph Napier, and John D. North)
(Jack H. Ealy, Ralph Napier, and John D. North).
(Jack H. Ealy, Ralph Napier, and John D. North).
(Ralph Napier, and John D. North).
Total delinquent MSHA penalties of these combined controllers: $2,960,815
A court judgement was issued against Kentucky Darby on Jan. 20, 2010 for $511,715.45
Number of injuries during delinquencies: 20
Tons of coal mined during delinquency: 1,413,297
Estimated value of coal mined during delinquency based on EIA prices: $89,410,833
Second on the list is a tangled web of five controllers – John D. North, Ralph Napier, Connie Napier, and Jack
Ealy – who owe a combined $2,960,815 in penalties between eight mining companies. MSHA records show
controller number C16057 with North and Napier as the controllers, and C15881 with Ealy, Napier and North as
the controllers. Ralph and Connie Napier with a controller ID of 0044001.
The Napiers and North were the controllers of the Kentucky Darby Mine where a May 20, 2006 mine
explosion killed Amon “Cotton” Brock, Jimmy Lee, Roy Middleton, George William Petra, and Paris Thomas, Jr.
There was one survivor, Paul Ledford, who received burns to chest, and suffered from carbon monoxide poisoning
and smoke inhalation.
Delinquent fines against Kentucky Darby stand at $593,107 with the remaining $2.3 million in fines spread
over eight other companies that they control together or separately.
MSHA penalties for the 2006 mine disaster remain unpaid, along with fines for violations at the other
operations. While the mines are now closed, Kentucky state records show that Ralph Napier, with his son, has
registered a new mining company.
North, Napier and Ealy were questioned June 15, 2012, by Congressman George Miller (D-Calif.), the ranking
Democrat on the House Committee on Education and the Workforce, and Congresswoman Lynn Woolsey (DCalif.) about the delinquent penalties, and conditions in
their mines.
Then, the controllers’ attorney, Billy Shelton, said
his clients would not be able to pay the fines “now or in
the foreseeable future” (19 MSHN 388). Shelton said
that his clients had spent all of their money on
employees salaries and benefits, operational costs at the
mines, and mine safety needs.
NPR sought to interview Napier, but he did not
respond to repeated requests to discuss his mines’
violations. NPR tried to reach him through two of his
attorneys and his son, and left notes at properties he
owns in Kentucky.
NPR did interview Mary Middleton, Roy
Middleton’s widow.
"It’s like they died in vain, like their life didn’t
Roy Middleton was one of the miners killed in the
matter," Mary Middleton said.
Kentucky Darby Mine.
"You get a speeding ticket…and you don’t pay and
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they’ll want to put you in jail," Middleton added. "But this man – it’s people’s lives and injuries and then they just
keep letting him keep doing it and doing it.... Why are they not being punished?"
The Kentucky Darby explosion illustrates another finding from the NPR/MSHN investigation: even after
major disasters with multiple deaths, delinquent mine owners can continue to operate and commit violations, often
resulting in injuries.
While they had delinquent fines, Napier and his partners mined 1.4 million tons of coal, according to federal
records. That’s more than $89 million worth, based on average prices in that part of Kentucky reported by the
Energy Information Administration.
"They’re just sticking their finger in the eye of the federal enforcement agencies," said Congressman Miller,
"They continue to run and produce coal and make money." Mining companies can operate "with complete
impunity," Miller said. "The current law isn’t worth the paper it’s written on."
Tony Oppegard, Middleston’s attorney, said “Not paying the fines…perpetuates this whole system of
lawlessness. If I don’t have to pay a fine, what incentive do I have to provide a safe workplace?... I’m going to do
it as cheaply as I can [and] cut as many corners as I can.”
Tracy Stumbo, who spent 17 years as Kentucky’s chief mine accident investigator, and investigated the
Kentucky Darby explosion said, “It’s almost unbelievable that you can have a horrendous accident such as
Kentucky Darby, an explosion that would kill five people, and still the company would be able to still mine coal in
the state of Kentucky and not pay their fines. And, you know, it’s pretty hard to explain to the families why this
continues to go on.”
Third Highest Delinquent Controller is Billionaire James Justice
Billionaire James Justice is the controller of
71 mines that owe over $2 million in
delinquent MSHA penalties. He has donated
$30 million to various organizations.
The third leading delinquent controller is West Virginia’s
billionaire James Justice owing $2,148,401 for 71 mines, according
to MSHA’s figures for Sept. 30, 2014. Justice’s fortunes, including
his southern Coal Co., place him on the Forbes billionaire list with
a net worth of $1.7 billion, and according to Forbes, he boasts 1.4
billion tons of coal reserves.
While being on the top of the list for delinquent MSHA
penalties for several years running, Justice purchased the
Greenbriar Resort, hosts PGA championship tournaments, has put
in a $25 million training center for the New Orleans Saints,
donated $25 million to the Boy Scouts of America, donated $5
million to Marshall University, and pledged $10 million to the
Cleveland Clinic.
The NPR/MSHN analysis of federal records through March of
this year, shows that the delinquent Justice mines committed nearly
4,000 violations while they were delinquent; 1,300 citations were
classified by federal inspectors as S&S; and more than 500
violations were the kind of violations that are common in mine
disasters, accidents and deaths. Seven delinquent Justice mines
were targeted for a dozen of MSHA’s impact inspections that occur
at mines which MSHA deems to have troubling safety records and
persistent violations.
The analysis using the government data found his company, Southern Coal, produced 9 million tons of coal at
delinquent mines in the years it dodged its fines, according to federal records, with the coal worth an estimated
$500 million, based on average prices at the time for the states and regions involved.
Justice’s office would not return phone calls, and would not speak with NPR, so NPR sought out Justice at a
girls basketball game. Justice said he could not speak with NPR, but his COO Tom Lusk could offer any needed
details.
Lusk claims that the company had paid MSHA $500,000 toward’s the company’s delinquent fines, but that
MSHA had failed to properly credit the payments. This still leaves more than $1.6 million in unpaid fines. Lusk
told NPR that “An operator that’s going to maintain a safe operation is faced with a dilemma of what gets paid and
doesn’t,” Lusk said. “And the unpaid fines and citations with Southern Coal have simply been not having the
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While owing delinquent penalties to MSHA, James Justice
purchased the Greenbriar Resort in West Virginia.
available cash to settle those. ... There’s been
no windfall in Appalachia. ... Today, all of
the operations in Appalachia, I think, are
struggling as far as profit margins compared
to input costs.” Lusk also said that the
delinquent penalties don’t compromise safety
in Justice’s mines.
While overall, the Justice mines
combined have a better injury rate than the
national average last year, and they’ve
sharply cut their violations rate, according to
the NPR/MSHN analysis, Justice’s
delinquent mines haven’t done so well.
Their injury rate for the last five years is
more than twice the average rate, according
to the review of federal data.
Lusk insisted that Justice will pay the
delinquent fines, and after NPR/MSHN made
it clear that Justice would be part of this
series, he instructed Lusk to begin paying off
his delinquent penalties at the rate of
$100,000 a month. Still, the vast majority of
mining companies, including those in
Appalachia, manage to pay their fines, and
MSHA hasn’t done with Justice what it has
done with other top delinquent operators,
which is to seek a federal court order for
payment. MSHA said it hasn’t gone to court
because Justice’s company does make some
payments.
Justice companies also have hired
contractors with some of the largest
contractor delinquent penalty cases with
MSHA.
Darrell Wagner and Wilcoal
Mining Is 4th on List
Darrell Wagner is fourth on the list of
delinquent fines, with $2,116,360 owed to
MSHA as of Sept. 30, with another $5,500
that was in the 1-90 day category of being
delinquent. Wagner owns Wilcoal Mining in
Bell County, Ky., and Solid Fuel Inc.
Wagner’s oldest delinquent penalty dates
back to Oct. 15, 2003 for $314. MSHA has
110 cases with multiple delinquent penalties
for each. Wagner’s most recent mine
purchase was Solid Fuel Corp.’s Watson
Branch Mine. He became controller Jan. 3,
2012, and has not paid one penalty of the
$25,455 it owes in fines since he took over
the operation. His mines have been targets
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for MSHA impact inspections, and the Tri-State One Mine in Tennessee was placed on a PPOV warning in 2010.
His highest delinquent penalties total $554,966 from the now abandoned and sealed Solid Fuel Inc. No. 1 Mine
(MSHA ID# 4003333).Wagner never paid one penalty issued by MSHA at any of these mines. Wagner was sent a
PPOV notice in 2010 for his Tri-State One Mine, a PPOV letter in August 2011 for his Solid Fuel, Inc., Mine
No.1, both of which are now closed.
MSHA did seek a court judgement for some of the delinquent fines from his Wilcoal company, and on March
6, 2013, Wilcoal was ordered to pay $640,087 in delinquent fines that had become final orders of the Review
Commission. Nothing has been paid to date. Wilcoal was permanently enjoined from failing or refusing to comply
with any orders or decisions issued under the Mine Act after the date of the entry of this judgment, including
orders to pay civil money penalties, interest, administrative expenses, wages or damages and for which a final
order or decision has been issued by the Federal Mine Safety and Health Review Commission (“Commission”) or
any of its administrative law judges or by any court having jurisdiction to issue orders or decisions under the Mine
Act after August 2011. Since that court order on March 6, 2013, Wilcoal has racked up $30,255 in unpaid
penalties. The Labor Dept Solicitor won't say why the settlement was apparently not enforced. Wanger’s active
mine has had five MSHA impact inspections. Wagner’s companies racked up 166 violations while the company
was delinquent. There have been 244,522 tons of coal mined during the delinquency period, with an estimated
value of $13,676,391. Wagner did not respond to inquiries from NPR/MSHN about this story.
Attorney Alexander Walker III’s Mines Have $1.5 Million in Penalties
As of Sept. 30, Alexander Walker III was fifth on the list, with $1,558,346.17 in outstanding MSHA penalties
for two mines in Utah. Walker is listed as the controller for America West Resources Hidden Splendor mines in
Utah. Records show bankruptcy proceedings in 2007 and 2013, and the mines closed in 2012 and 2013 with plans
to liquidate the assets.
The mines have gone through seven surprise impact inspections, and recorded 33 injuries while delinquent
penalties were outstanding with MSHA. The Horizon Mine received a PPOV notice in March 2009.
An August 2011 impact inspection at Hidden Splendor’s Horizon Mine found ventilation devices not being
maintained, high accumulations of coal dust and hazardous conditions on the underground conveyor belts. The
conveyor belt violations, in combination with accumulation of combustible materials, exposing miners to fire
hazards, and fire fighting equipment inoperable.
Walker’s mines managed to mine 1,297,981 tons of coal, with an estimated EIA value of $40,536,646 while
not paying the MSHA fines. Walker is a member of the Utah State Bar Assn., and the Nevada Bar Assn. Forbes
Magazine lists him as a member of the board of directors of the South East Utah Energy Producers Association
and in the past has served as the co-chair of the board of the Western Energy Training Center. Walker did not
return phone messages for this story.
The last year that Hidden Splendor was in production, 2012, it had an NFDL rate that was 188% above the
national average.
No. 6 , George Chris Waugh, Controlled Four Operations
George Chris Waugh is 6 th on the list controlling Inner Mountain Mining, Inc, Coal Creek Mining, LLC,
Black Thunder Mining, Inc., and Daystar Coal located in Knott County, Floyd County, and Pike County, Ky.,
owing $1,480,736.
While Waugh controlled the Daystar Mine, it was targeted for an MSHA impact inspection in November
2011. MSHA “captured” the phones and ended up issuing 52 citations, 11 orders. MSHA found virtually no
ventilation at the face, and huge quantities of float coal dust, coal fines and loose coal. The company also failed to
provide experienced miner training to 17 miners before they assumed their work duties underground and on the
surface.
Waugh also controlled Black Thunder Mining, Inner Mountain Mining, and Coal Creek Mining. Kentucky
state records show he dissolved all of his mining companies in Sept. 2012.
During the period of delinquent fines, there were two miners injured, and 1,005 violations cited. During the
delinquency period, his mines produced 1,297,981 tons of coal with a value of $40,536,646. His most recent
delinquent fines that have become final orders stem from violations at Coal Creek Mining where, on at least two
12 – Mine Safety and Health News –November 12, 2014
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occasions, miners did not have self-rescue devices, examinations were not being conducted, multiple miners did
not have appropriate training, explosives were not being properly stored, communication devices were lacking,
and the ventilation plan was not being complied with. There are $782,294 in delinquent penalties just for Coal
Creek Mining in Floyd County, Ky.
In 2011, the state of Kentucky revoked Waugh's mine foreman certification for 2 years for "direct violation of
law, abuse of authority, failure to comply with the Kentucky mine safety laws and for other just cause." All other
state mine certifications were put on probation. Waugh agreed to settle, but denied the violations.
Two Controllers, Rowland Goble and Charles A. Ratliff,
With Three Companies Leave Injuries and Fines
Rowland Goble and Charles A. Ratliff are 7th on the Sept. 30 delinquent debt list with $1,474,928 in
delinquent fines across three coal mining companies: C & D Mining, Murriel Don Coal Co, and B & C Coal in
Knott County and Floyd County, Ky. There were 50 violations during the delinquency period and 8 reported
injuries at Murriel Don Coal while the mine had delinquent penalties. Roble's wife said husband seriously ill and
unable to speak to NPR, and there was no response from Ratliff, but a message was left with his son. MSHA now
lists the debt for Murriel Don Coal as “uncollectible.”
Brandy Horvath in Jail for Tax Evasion
Brandy Horvath is 8 th on the list of delinquent controllers, owing $1,369,223.89 related to the New West
Virginia Mining Co. that she allegedly controlled. However, a criminal case in U.S. District Court in Beckley,
shows the real controller was Horvath’s boyfriend – James E. Trent – who was permit blocked. Horvath pleaded
guilty to tax evasion, and was ordered to spend 18 months in prison.
According to an April 2012 indictment, Trent owed $800,000 in personal, corporate and employment taxes. In
Nov. 2005, he closed all of his personal accounts, and ceased conducting business in his own name. In March
2006, he named Horvath as president of one of his companies, and then in July 2007, he formed New West
Virginia Mining Co., and named Horvath as the owner and president. The company did contract mining work for
Riverside Energy – a subsidiary of Alpha Natural Resources (who also has delinquent penalties). Horvath
maintained all of the accounts.
The indictment claims that employees were paid in cash, and Horvath would falsify the “memo” lines of
checks drawn on the mining company account. The indictment says that she withdrew over $1 million in cash
from the business. Purchases on the company account include illegal narcotics.
While Horvath was “controlling” the mine, the mine was placed on POV status by MSHA. At the time of the
first permanently disabling accident in The New WV Mine, on July 17, 2010, the company had $158,234 in
delinquent MSHA penalties. At the time of the second permanently disabling accident on March 2, 2011, the mine
was up to $177,846 in delinquent MSHA penalties. All told, there were 10 injuries at the mine during delinquency,
and 286 violations. While she was jailed for tax evasion, the uncollected penalties, were not included in the case,
even though, according to the law, unpaid penalties are to be counted as income. Horvath’s release date from
prison is June 28, 2015.
Deceased Controller’s Delinquent Fines Now Listed as Uncollectible
Ninth on the list is the deceased David S. Himmelberger, whose small, five-person company, R&D Coal, was
the first to receive a “flagrant” penalty under the Mine Act for violations that MSHA said contributed to the Oct.
23, 2006 accident causing the death of one of its employees, Dale Reightler.
The company was fined an unprecedented $874,500 by MSHA for non-compliance with approved ventilation
and roof control plans, poor blasting practices, including the use of non-qualified blasters, and improper pre-shift
examinations led to the fatal accident (14 MSHN 149). R&D Coal had zero accidents for 2006 and 2005, when the
national rate was 2.79 and 3.80 respectively for those years. From 1995 through 2006, the mine had only 5
reported accidents – well below the national average.
Adele Abrams, who was R&D’s attorney, believed that the penalties assessed against the company were not
13 – Mine Safety and Health News –November 12, 2014
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just unfair, but illegal, claiming that MSHA was legally barred from imposing the new "flagrant" penalty on R&D
for citations issued in 2006, when the final rule codifying the penalty (published on March 22, 2007) did not take
effect until April 23, 2007, and MSHA's preamble states that the rule would not be imposed retroactively. Abrams
said at the time that “Imposing a proposed $874,000 penalty against a five-employee mine that was never able to
reopen after the fatality is clearly at odds with the statutory criteria in the Mine Act that require (among other
things) the size of the operator and the financial status of the operator to be considered when setting a penalty.”
Abrams said that Himmelberger left a wife and three children and was distressed by the prolonged case and
potential fines that would have sent him into bankruptcy (14 MSHN 440). After his death, a supervisor pleaded
guilty to a criminal charge. Although Himmelberger is deceased, MSHA still shows $1,287,641.52 in delinquent
penalties, and lists the fines as “uncollectible.”
Mine Closed, But Former Miners Exposed to High Levels of Quartz
Another deceased controller is Carl Kirk, whose delinquent penalties from Marshall Mining Inc. and North
Star Mining Inc. place him 10th on the list, with delinquent penalties totaling $1,127,719. His oldest delinquent
penalties stem from violations in 2007 at North Star Mining #4B Mine in Floyd County, Ky., where MSHA
records show miners were continuously over-exposed to quartz dust in the short period Kirk controlled the mine.
Kirk just passed away, on March 31, according to an obituary in The News-Enterprise. All of his mines are
now listed as abandoned or non-producing. Also listed on Kentucky state records is Roger Kirk. Kentucky state
records also show a business called C&R Services headed by Carl Kirk at the same address as the mining
operations. MSHA now lists these fines as “uncollectible.”
Former Tri-Star Mining Controllers Leave $1 Million in Delinquent Fines
Gary Ronald and Archibald Parker were the controllers for the now closed Tri County Coal Crown III Mine in
Macoupin County, Ill., have left $1,073,693 in delinquent penalties. They accumulated hefty fines for on-shift
examination violations, accumulations of combustible materials, lack of carbon monoxide detectors, and roof
support violations. The mine had an NFDL rate that was 258% above the national rate in 2010, 214% above the
national average in 2011, 22% above the national average in 2012 and 209% above the national average in 2013
when they last controlled the operation. Last October 203, the mine announced it was closing after is did not get a
major coal contract renewed with Archer Daniels Midland Co.
Richard Abraham’s Rio Group Debt Goes Back 11 Years
Richard Abraham, controller of Rio Group, has delinquent penalties dating back to Dec. 10, 2003, and now
owes $1,008,990 in delinquent penalties, with the most recent becoming delinquent Sept. 3, 2014 at his company’s
Coalburg No. 2 Mine in Logan County, W.Va. Some of the delinquent fines are listed as delinquent, and some of
the delinquent fines are listed as “uncollectible.” Some of the higher fines that are unresolved are from 2008 and
still listed as “under contest” before the Review Commission. Abraham’s delinquent debt has increased by
$260,000 since the last delinquent penalty overview was conducted by Mine Safety and Health News in April
2013, when the delinquent penalty debt was at $748,083. The mine has always had a significantly higher accident
rate than the national average since 2003 with 57 injuries reported while Rio Group wasn’t paying its fines.
14 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
Controllers Whose Mines Owe Over $100,000 in Delinquent
Delinquent
MSHA Penalties. In Order of Amount Owed to Government.
MSHA
*List current as of Sept. 30, 2014
Penalties
*Information supplied by MSHA’s Office of Assessments
as of
Sept. 30, 2014
1.) Horace Garrison Hill (on MSHN list since 2009).
$4,775,205.32
2.) Jack H Ealy; Ralph Napier; Connie Napier and John D North
$2,960,815.00
3.) James C. Justice II (on Forbes Billionaire list).
$2,148,401.94
4.) Darrell Wagner
$2,116,360.10
5.) Alexander Walker III
$1,558,346.17
6.) George Chris Waugh
$1,480,736.56
7.) Rowland Goble; Charles A Ratliff
$1,474,928.89
8.) Brandy M Horvath (in jail for tax evasion)
$1,369,223.89
9.) David S Himmelberger (deceased)
$1,287,641.52
10.) Carl Kirk (deceased, March 31, 2013)
$1,127,719.33
11.) Gary J Ronald; Archibald C Parker
$1,021,028.99
12.) Richard H Abraham
$1,008,990.94
13.) Donna L Johnson (was #43 on the list in 2013 with $299,358 in delinquent fines)
$945,808.80
14.) Scarlett Biliter (on list since 2011; was #11 on list in 2013; controls Solar Coal Co., and
KiMara mines in Kentucky; both now listed as abandoned).
$856,562.88
15.) Kevin R Yonts (was #12 on list in 2013 with $832,134 in delinquent fines; court judgement
issued 9/13/2011 for delinquent fines of $131,357.77).
$848,856.04
16.) Mechel Oao (was #73 on list in 2013 with $147,189 in delinquent fines. It is is one of
Russia’s leading mining and metals companies, comprising producers of coal, iron ore in
concentrate, steel, rolled steel products)
$806,519.00
17.) Dennis B Hagerman (was #32 on list in 2013 with $374,460 in delinquent fines for Shelby
Coal Co.; fines delinquent 4/12/2008 - 3/2/2012).
$782,843.83
15 – Mine Safety and Health News –November 12, 2014
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18.) Alger B Jent (On probation with the Ky. mine program; was involved in
discrimination case where he had threatened miners with a gun; was indicted and found
guilty of roof control violations in 2010; penalties from CSA Mining).
$776,933.39
19.) Josh Osborne (was #16 on list in 2013 with $639,054 in delinquent fines)
$641,062.49
20.) Jimmy D Robbins (was #24 in 2013 with $424,397 in delinquent fines)
$622,852.94
21.) Timothy R Dye (was # 19 on list in 2013 with $578,713 in delinquent fines)
$579,736.81
22.) Minerva Ruth Mead was #30 on list in 2013 with $393,807 in delinquent fines)
$562,069.81
23.) Robin M Lambert; Philip T Lambert (was #22 on list in 2013 with $457,624 in delinquent
fines).
$561,329.53
24.) Charles Collins (has delinquent penalties from previous company, Calvary Coal dating
back to 2003, and has new delinquent penalties from JRC Mining delinquent as of
9/15/2014).
$517,337.90
25.) Jody D Puckett (Controller of Viper Coal; was #21 in 2013 with $501,634 in delinquent
fines; court judgement issued against Viper on 2/20/2014 for $441,819.14 in delinquent fines ).
$493,486.14
26.) Alpha Natural Resources, Inc. (Has a “Running Right” program. Was 17 th on list in
2013 with $627,891 in delinquent fines; recent impact inspection at Cherokee Mine found no
ventilation in a section in a mine with 10 black lung cases).
$491,914.02
27.) Thomas W Lusk (Was #23 on 2013 list with $421,040 in delinquent fines)
$483,166.64
28.) Amber Hall (Court determined that ex-husband Kermit Hall was responsible for
violations).
$451,527.20
29.) James Bradley Slender (Owner of BCJ Sand & Rock. Has had significant delinquent
penalties beginning 2011. First time penalties are over $100,000).
$518,252.58
30.) William R Ward; John B Ward (was #28 in 2013 with $397,728 in delinquent fines)
$431,361.26
31.) Broe Companies Inc, (was #7 on 2013 list with $403,123 in delinquent fines)
$412,214.08
32.) Vhonda Dotson (was #26 on 2013 list with $406,110 in delinquent fines)
$406,109.76
33.) Veris Gold Corp. (has accident rate 72% higher than national average; in bankruptcy; first
time delinquent fines have been over $100,000)
$405,115.00
34.) Kenneth R Vance (never paid any penalties while controller of Horse Creek No. 2
Mine, MSHA ID#4609340. Mine now controlled by Dennis Hagerman who is #17 on this
list).
$400,222.60
16 – Mine Safety and Health News –November 12, 2014
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35.) Jack M. May (controller of Right Fork Energy Inc., has never paid MSHA penalties since
taking over mine; complaint filed in U.S. District Court seeking an injunction under section
108(a) of the Mine Act; KY - US eastern district; judgement granted 9/4/2009 for delinquent
penalties of $201,567)
$398,316.64
36.) Jason D Ousley (controller of Tram Energy LLC. Never paid MSHA penalties.
Previous controller of mine also never paid MSHA penalties)
$395,972.68
37.) Clinton L Ramey (was 15 on list in 2013 with $709,008 in delinquent fines)
$392,898.43
38.) Jimmy D Tackett (was # 67 on 2013 list with $165,981 in delinquent fines)
$392,316.35
39.) Hattie F Johnson (was #52 on list in 2013 with $244,066 in delinquent fines; controlled
Spud Mining with $78,853 in delinquent penalties, and Shorty Enterprises with $306,592 in
delinquent penalties. Shorty Mine had NFDL rate 537% above national average. Mines were
taken over by Jody Puckett of Viper Coal who is #25 on this list for delinquent penalties of
$493,486.14).
$385,446.05
40.) K Dale Tolliver (was #31 on list in 2013 with $381,957 in delinquent fines)
$381,957.36
41.) Johnny Perez (Nunez) (was #33 on list in 2013 with $354,340 in delinquent fines)
$362,048.11
42.) Conrad J Smith (was #35 on list in 2013 with $353,938 in delinquent fines; had
reopened family quarry without reporting to MSHA; denied entry to inspectors; multiple
violations found; quarry is now listed as closed, but website is active).
$353,937.56
43.) Robert B Hughes (was #38 on list in 2013 with $325,390 in delinquent fines; controlled two
companies: S&B Energy with $213,557 in delinquent fines, and MG Energy LLC with $79,810
in delinquent fines).
$344,096.97
44.) Geraldine P Turner (was #41 on list in 2013 with $306,748 in delinquent fines)
$320,903.20
45.) Robert E Murray ($33,361 is delinquent from Consol mines recently purchased by Murray.
Oldest delinquent fines are from 1/3/2010 - Ken American Resources. MSHA has stated that it
does not go after fines in court because Murray Energy is always sending in checks; Murray had
stated at one point in a letter to Congress that he would challenge everything except for de
minimus penalties).
$319,802.14
46.) Noah White Jr (delinquent fines accrued between 10/24/2004 - 10/26/2007; the majority
of delinquent penalties were from 2005 when it had multiple orders; mine now abandoned).
$309,271.49
47.) Randy Gilkerson (Charles “Randy” Gilkerson, controller of Ember Contracting, was
accused of a “shell game” by Review Commission ALJ Alan Paez in a Nov. 2011 decision; see
18 MSHN 640; 33 FMSHRC 2742).
$307,994.94
48.) Jeremy Bryant; Justin Bryant (paid the first 12 penalties for Rain Coal Co., then
stopped paying fines in March 2011. Produced 248,551 tons of coal during this period).
$295,308.80
17 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
49.) CraKol Energy LLC (was #69 on 2013 list with $163,735 in delinquent fines; six injuries in
the last three years due to roof falls; NFDL rate 53% higher than ntl avrg for 2013 and 143%
higher for 2012).
$295,241.13
50.) Long Branch Energy Corp (purchased by Patriot Coal. Fines listed as delinquent due to
Patriot’s bankruptcy proceedings).
$280,019.80
51.) Jessica R Lester (was #75 on 2013 list with $145,188 in delinquent fines; controls
Inspiration Resources; delinquent fines run from 8/6/2003 - 9/11/2014; most recent mine was
acquired on 1/31/2013 - MSHA ID# 1519208 - and all fines are delinquent).
$277,771.91
52.) Elizabeth K Justus-Dickenson (in operation from 2006 - 2010; NFDL rate was 52% higher
than ntl avrg.)
$273,676.30
53.) Rodney Bentley; Ted Thornsberry (TRC Mining Corp., 24 orders in 2012; mine abandoned)
$263,835.10
54.) James L Bevins (controller of Fools Gold was #54 on 2013 list with $236,300 in
delinquent fines; Complaint filed in U.S. District Court seeking an injunction under section
108(a) of the Mine Act for $91,965 in delinquent fines. The company was to pay $15,000,
and then for three years, make quarterly payments of at least $5,000 until $75,000 was
paid).
$263,458.96
55.) Stanley W Osborne (was #46 on 2013 list with $291,874 in delinquent fines; was found in
contempt of court 12/21/2012; violated court injunction prohibiting the removal of equipment
from mine until penalties were paid; failure to pay civil penalties; and, failure to post a bond
before becoming an agent for another mine).
$260,384.67
56.) Roy C Wagner (was #89 on 2013 list with $115,678 in delinquent fines)
$258,142.75
57.) National Coal Corporation (delinquent penalties accrued between 2/16/2013 and March 26,
2014; mine listed as abandoned)
$250,698.13
58.) Cemex S A (was #61 on the 2013 list with $176,998 in delinquent fines; one of the
world's largest building materials suppliers and cement producers based in Mexico)
59.) Randall Fleming (has two mines; was #45 on 2013 list with $292,373 in delinquent fines)
$230,787.03
$219,075.83
60.) Jimmie Leon Hess (was #60 on list in 2013 with $180,314 in delinquent fines)
$216,390.40
61.) Clyde H McComas; Ollie Burns (delinquent fines go back to 10/1/2006 - 7/27/2012;
mine now abandoned).
$215,999.55
62.) Marguarite Carroll (A&E Coal, now abandoned; fines are delinquent from 11/24/12)
$206,850.32
63.) Italcementi Spa (5th largest cement producer in the world; while it has had delinquent
fines in the past, this is the first time delinquent fines have been over $100,000).
$203,339.34
18 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
64.) Ron J Cincotta; Richard J Cincotta (controllers of R. J. Cincotta Co.; delinquent fines from
3/22/2008 - 8/11/2012; mine abandoned; complaint filed 7/11/2012; case dismissed due to
bankruptcy).
$183,421.89
65.) Lipari Energy (was #77 on 2013 list with delinquent fines of $141,536)
$181,190.60
66.) Tanya Fuller (first delinquent fines started in 2011; latest delinquency listed 7/21/2014; her
shale operation has had a NFDL injury rate 566% above the national average. Fatality on
2/14/2012).
$178,096.97
67.) Foundation Coal Corp. (was #53 on list in 2013 with $230,493 in delinquent fines)
$173,353.17
68.) James H Booth (was on list in 2011 with $81,118.54 in delinquent fines; controls Argus
Energy with $285,184 in delinquencies; Beech Fork Processing with $110 in delinquencies; and
Matrix Energy with $5,290 in delinquent fines).
$170,644.57
69.) John (Michael) Fannin; Dennis Daniels (in operation only 3 years; NFDL rate was
432% above ntl avrg for first year)
$168,350.52
70.) Patrick S Detherage (first delinquent fine 11/13/2011; mine now abandoned)
$168,347.73
71.) Michael K Cook; Randy A Cook (was #68 on list in 2013 with $164,469 in delinquent
fines)
$164,387.24
72.) Joshua Clark (stopped paying penalties in 2011; has mined 218,264 tons of coal since 2011;
had 17 orders in 2013)
$157,180.29
73.) Robert Stump; Eddie Delong (mine abandoned; delinquent fines from 12/16/2006)
$156,947.68
74.) James M Boney (was #72 on list in 2013 with $149,932 in delinquent fines)
$156,772.13
75.) Douglas K Tackett (is also listed as a partner with Mark E Daugherty for one
abandoned mine with delinquent penalties of $10,261; has $153,204 in delinquent penalties
for Mercy Mining)
$153,204.66
76.) Timothy P Smith (was #74 on list in 2013 with $145,623 in delinquent fines)
$146,955.41
77.) Kevin R Paul (runs an intermittent crushing plant; had a fatality 8/9/2011 where 24year-old Aaron D. Kaufmann’s arm was torn off in a conveyor head pulley that lacked
mandatory guarding; before the accident, the crushing operation was unknown to MSHA).
$142,751.31
78.) Kevin W Cole Sr. (controller of Raymond Sand & Gravel; was #86 on list in 2013 with
$125,756 in delinquent fines; Sec. sought court injunction for payment of penalties and to post a
bond, but injunction denied due to lack of provisions under the Mine Act).
$142,527.80
79.) Jeffrey A Goldizen (was # 98 on list in 2013 with $101,381 in delinquent fines)
$141,055.39
80.) James Beck (portable crushing plant; violations delinquent from 6/19/2008 - 6/21/2011)
$140,654.17
81.) Consolidated Energy Inc (was #81 on list in 2013 with $136,574 in delinquent fines)
$136,574.11
19 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
82.) Michael Tolbert (was #83 on list in 2013 with $133,925.54 in delinquent fines)
$133,925.54
83.) L Kenneth Teel (delinquent fines from 11/30/2009 - 6/4/2014; mine abandoned)
$132,951.01
84.) Bob Bak (was # 84 on 2013 list with $131,933 in delinquent fines)
$131,582.57
85.) Brett Strebeck; Robert Lane; Steve Wright (delinquent fines 3/27/2013 - 8/21/2014)
$129,365.22
86.) Mize Robert W III (was #96 on list in 2013 with $101,884 in delinquent fines; had entered
int payment plan in 2013, but delinquencies continue to grow).
$127,079.60
87.) Wolford Jeffrey (delinquent fines 1/21/2009 - 2/20/2011; mine listed as non-producing)
$122,097.67
88.) Donnie Wagers; Onzie Sizemore (delinquent fines 1/6/2009 - 3/12/2014; mine now
abandoned)
$121,986.78
89.) Juan P Martinez (delinquent fines stem from fatal accident on 12/29/2010; killed was
Jesus M. Martinez when lift arms accidentally lowered and pinned him against the frame of
the loader; company cited for lack of training and failure to properly block equipment).
$118,318.95
90.) Tom Roberts (delinquent fines date from 9/26/2003 - 8/24/2007 from multiple mines)
$117,200.20
91.) Michael Peryea Paving & Trucking (delinquencies from July 1998).
$115,786.95
92.) Bill C Smith (delinquencies from 2 mines; one abandoned and one temporarily idled).
$111,490.24
93.) MDM Holding Incorporated (mine abandoned; delinquent fines accrued from 4/9/2009
- 12/22/2013).
$109,631.44
94.) Robert C Gregory Jr (one mine abandoned; debt listed as uncollectible; one mine active).
$109,409.90
95.) Everett D Hampton (was #92 on list in 2013 with $108,712 in delinquent fines)
$108,712.04
96.) Johnny J Bishoff; James R Bishoff (mine abandoned 2/22/2005).
$107,227.98
97.) Cecil Nichols (delinquent fines from 8/3/2010 - 4/19/2013; mine abandoned).
$107,182.09
98.) Kenneth L Farley (was #97 on 2013 list with $101,679 in delinquent fines).
$101,679.01
99.) James T Tinin (sand and gravel mine; last MSHA inspection in April 2014 with no
violations found; delinquent fines from 5/29/2010 - 8/22/2014).
$101,631.87
20 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services
Civil Penalties Special Report by Mine Safety and Health News in partnership with National Public Radio
About this report:
NPR and Mine Safety and Health News analyzed Mine Safety and Health Administration (MSHA) records
for our series Delinquent Mines. Among them were detailed reports of mines that had delinquent debt. The debts
in those reports were all considered final — either unchallenged by mine operators or upheld in an appeals
process.
We compared the delinquency reports with other publicly available Department of Labor data on mine safety
violations and mine injuries, looking specifically at injuries and violations that occurred during each mine's period
of delinquency.
By law, penalties are assessed against mine operators, which may be subsidiary companies of a "controller," or
corporate owner. However, we aggregated data by controller to show the total owner or corporate debt. Total debt
for each mine controller is based on the controller of record at each mine at the time the fine became delinquent.
Injury rates were calculated by NPR taking raw Department of Labor data and applying MSHA's prescribed
formulas and injury categories. The rates we calculated for delinquent mines apply only to the years of
delinquency. "Injuries And Violations" during delinquency do not include delinquencies categorized as "on hold"
or 1 to 90 days old.
Coal tonnage is based on annual data provided by the Department of Labor. Tonnage is included only for full
years of delinquency. Coal value was estimated using average annual sales prices provided by the Energy
Information Administration for each mine type and the relevant state or region within the state (if available). The
estimates do not include 2013 or 2014 prices because price data were not yet available.
About the Reporters:
Ellen Smith is the owner and managing editor of Mine Safety and Health News, an independent and
credentialed news service that covers MSHA and the Federal Mine Safety and Health Review Commission. She
has been covering the mining industry since 1987, and has won 33 journalism awards on her reporting, including
three Sigma Delta Chi Awards from the Society of Professional Journalists for Public Service in Newsletter
Journalism. Delinquent fines of mine operators and contractors have been a troubling issue for Smith, who has
covered this issue for the last 20 years. She is known in the news industry as having the ability to explain the
intricacies of mine safety law and mining to the general public in clear, understandable formats. She is relied upon
by news organizations throughout the U.S. for her knowledge on mine safety law.
Howard Berkes is a correspondent for the NPR Investigations Unit. Since 2010, has focused mostly on
investigative projects, beginning with the Upper Big Branch coal mine disaster in West Virginia. Berkes has
reported on coal mine and workplace safety, including the safety lapses at the Upper Big Branch mine, other
failures in mine safety regulation, the resurgence of the deadly coal miners disease black lung and weak
enforcement of grain bin safety as worker deaths reached a record high. Berkes was part of the team that
collaborated with the Center for Public Integrity in 2011 resulting in Poisoned Places, a series exploring
weaknesses in air pollution regulation by states and EPA.
Robert Benincasa is a computer-assisted reporting producer in NPR's Investigations Unit. Since joining NPR
in 2008, Benincasa has been reporting on NPR Investigations stories, analyzing data for investigations, and
developing data visualizations and interactive applications for NPR.org. He has worked on numerous
groundbreaking stories, including an exclusive on the independence level of nursing home residents, the safety of
automated aircraft, and a government mandate to produce $1 coins that Americans don't want.
Anna Boiko-Weyrauch was an NPR intern for this project, but she is also the winner of the 2013 Atwater
Prize for Writing contest at the Missouri School of Journalism. Anna is a former data analyst with the Database
Library of the National Institute of Computer-Assisted Reporting at the University of Missouri, where she received
her masters in journalism. She is originally from Seattle. She now works for Rocky Mountain PBS.
21 – Mine Safety and Health News –November 12, 2014
Copyright 2014 by Legal Publication Services