Rachel Carson State Office Building

Rachel Carson State Office Building

P. O. Box 2063

Harrisburg, PA 17105-2063

February 28, 2003

Office of the Secretary 717-787-2814

Mr. Albert H. Masland

Inspector General

101 South 2nd Street

Harrisburg, PA 17101-1303

Dear Inspector General Masland:

I am writing to request your office to perform a program review relevant to the Department of Environmental Protection’s (DEP) Mineral Resources Deputate. Specifically, I am requesting a review of the Bureau of Deep Mine Safety’s (DMS) implementation of Section 236 of the Bituminous Coal Mine Act, Act of July 17, 1961, P.L. 659, 52 P.S. 701-236. The Bureau of DMS is the section of the DEP that is responsible for protecting and regulating miner safety by administering and enforcing, among other things, the Bituminous Coal Mine Act.

It is important at the outset for me to underscore that this request is not prompted by any allegation of real or perceived waste, fraud, criminal behavior, or wrongdoing by the Bureau or any of its employees. Instead, I am seeking to engage you pursuant to your program review and evaluation authorities.

This request arises out of DEP’s continuing investigation of the July 2002 accident at the Quecreek No. 1 Mine in Somerset County. The Quecreek accident occurred on July 24, 2002, at approximately 8:50 p.m. when nine miners inadvertently broke through to the abandoned Saxman Mine, which then flooded the Quecreek Mine, trapping the nine miners for 77 hours.

DMS and the U. S. Department of Labor’s Mine Safety and Health administration (MSHA) began investigations of the Quecreek accident shortly after the July rescue. The purpose of DMS investigation is to:

1. Document the cause or causes of the Quecreek accident.
2. Present basic timelines and facts surrounding the accident and rescue.
3. Determine whether any state laws or requirements were violated and recommend enforcement actions related to violations.
4. Make any other recommendations for changing procedures and law to prevent similar accidents.

A preliminary report was issued in November. Comments on the report were accepted until December, and the investigation is ongoing. A copy of the preliminary report may be obtained from the DEP Website at http://www.dep.state.pa.us/quecreekdocuments/ .

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In addition, a special Commission on Abandoned Mine Voids and Mine Safety was established by executive order dated September 4, 2002. Dr. Raja V. Ramani, Professor Emeritus of Mining and GeoEnvironmental Engineering at Penn State University, chaired the Commission. Using the Quecreek Mine accident and rescue as a general reference, the Commission examined the following issues:

§  The best engineering practices to be used in the design and layout of the modern mines adjacent to abandoned mine workings;

§  The regulatory policies and permit-review procedures for permitting mines adjacent to abandoned underground-mine workings;

§  The practices and procedures of mine operations in advance of mining to detect mine voids;

§  The training of mine workers who operate mines adjacent to underground mine-workings;

§  The inspection and compliance of the mine operations with the approved mine plans and operating requirements; and

§  The rescue and response procedures, including policies for sharing information with the families of the miners affected by an accident.

The commission held three public hearings to gather input from members of the public and industry. As required by the executive order, the Commission forwarded its report to Governor Schweiker on November 15, 2002, and made 48 recommendations including:

§  Calling for the Commonwealth to initiate a search for all final mine maps, creating a single Commonwealth mine map repository, cataloging each map in its inventory, and archiving and making electronic recordings of all maps;

§  Giving the Commonwealth the authority to copy all mine maps in the possession of other people or organizations; and

§  Creating a database of coal-production information and correlating that information with mines in the Commonwealth’s possession.

I am advised that Governor Schweiker accepted all but one of the 48 recommendations made by the commission. He apparently rejected a recommendation to determine “mine barriers” between active mines and adjacent abandoned mines on a mine-by-mine basis, in favor of retaining his earlier decision made in August of 2002 to increase the safety barriers between active bituminous mines and abandoned mines to 500 feet from the previous 200 feet. A copy of the Commission’s report may be obtained from the DEP Website at the following address: http://www.dep.state.pa.us./hosting/minesafetycommission/report.htm .

The United States Attorney of the Western District of Pennsylvania and the Commonwealth’s Attorney General are also conducting investigations. DEP is cooperating with

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these probes. A statewide grand jury has subpoenaed DEP staff to provide factual evidence. All relevant files and records requested have been provided.

During the course of our continuing review of the Quecreek accident, issues have arisen that we believe are best addressed by an independent program review and evaluation conducted by your office.

As explained below, I believe that the Office of Inspector General can assist the DMS in better carrying out its duties by examining the development and implementation of an alternate interpretation of Section 236 beginning in about 1998.

Section 236 of the Bituminous Coal Mine Act states:

‘Information as to adjoining mine

When the workings of a mine are within one thousand feet of the boundary lines between such mine and any adjoining mine or mines, application shall be made by the operator or the superintendent to the mine inspector in the district for information as to the proximity of the workings of such adjoining mine or mines and if the workings of such adjoining mine or mines are, at their nearest point, within one thousand feet of such boundary line, the mine inspector shall so notify the said operator or the said superintendent, who shall have such portion of the workings of said adjoining mine or mines surveyed and shown on the map of the mine first mentioned. For the sole purpose of making the survey herein required, the engineer or surveyor of any mine shall have the right of entry into any adjoining mine, on the written authority of the mine inspector in the district.’

The DMS had interpreted this provision to apply only when a mine is operating in proximity to another active mine. However, in approximately 1998 the Department began to reevaluate this historical reading of Section 236. The reevaluation focused on a broader reading of the section to include abandoned mine workings, as well as active mine workings. The Department is not asking for your help in developing a legal interpretation of this section. However, it is unclear whether this interpretation was ever fully adopted by the Department, and if so, how this interpretation was communicated to and implemented by relevant staff. We are requesting your assistance to better understand this situation.

Relevant questions for your review include the following:

1. Did the Bureau Director concur in the advice of Counsel that Section 236 may properly be applied to both active and abandoned mining operations?
2. If so, did the Bureau Director clearly and effectively communicate this interpretation to staff and at what time?

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1. If this interpretation had in fact been adopted by the Bureau Director and communicated clearly and effectively to staff, have staff performed in accordance with this interpretation generally and specifically with regard to the Quecreek mining operations?

The team of DMS employees investigating the cause of the Quecreek Mine accident has been working on the technical aspects of the case since last summer. I am advised that this team has been professional and thorough in carrying out its assignment. However, since we are now examining how Department employees understood, communicated and implemented Department policy, it is appropriate for an independent third party to conduct the analysis and review. Hence, my request to you today.

I would expect that the results of your evaluation will supplement the Department’s investigative efforts to date, but will be reported independently of those efforts. However, I am open to discussing your thoughts on this matter and better understanding any existing protocols of the Office of Inspector General.

I thank you in advance for your timely response and assistance in this matter. In closing, I reiterate that there is no allegation of waste, fraud, or criminal behavior involved in this request. The professionals of the Bureau of Deep Mine Safety performed valiantly in rescue of the Quecreek miners. You are being asked to help them, through this evaluation, to provide even better protections to Pennsylvania’s miners. I and other Department personnel will be available to meet with you to discuss this request further if you wish to do so. I have asked Scott Roberts, Deputy Secretary for Mineral Resources, to serve as your primary DEP contact for this review. Mr. Roberts may be reached at 717-783-9958.

Sincerely,

Kathleen A. McGinty

Acting Secretary