Massey Energy’s “deceptive and illegal actions” significantly interfered with the U.S. Mine Safety and Health Administration’s efforts to police Massey’s Upper Big Branch longwall mine, the site of an April 2010 explosion that killed 29 miners, said MSHA head Joe Main in March 27 testimony in Congress.
Massey Energy, then the largest coal producer in Central Appalachia, never fully recovered from the legal, financial and regulatory aftermath of the Upper Big Branch explosion and in June 2011 was taken over by Alpha Natural Resources (NYSE:ANR). Alpha after that made it a top priority to repair Massey’s tattered relationships with federal and state coal mine safety agencies.
Upper Big Branch (UBB) was the worst U.S. coal mine accident in 40 years and came despite new legislation passed by Congress in 2006 after a rash of fatalities earlier that year, including at Massey’s Aracoma mine, also in southern West Virginia.
Despite Massey’s deception when it came to MSHA inspections of UBB, “MSHA assumes responsibility for its actions and inactions at UBB and takes the deficiencies and recommendations outlined in the internal review report extremely seriously,” said Main, referring to a recent internal report on how MSHA’s own people handled Upper Big Branch inspections prior to the explosion. “We have already implemented many actions to improve enforcement, and set a timetable for implementing the internal review team’s recommendations. We are also reviewing the regulatory recommendations of both the accident investigation team and the internal review team to determine which regulatory changes to pursue.”
Main, a former top safety official at the United Mine Workers of America who took the MSHA job in late 2009, was testifying before the House Committee on Education and the Workforce.
In December 2011, an MSHA team issued the results of its investigation at UBB. The probe determined that the 29 miners who perished at UBB died in a massive coal dust explosion that most likely started with an initial methane ignition and was fueled by excessive amounts of coal dust transitioning into a massive coal dust explosion. The physical conditions at the mine that led to the coal dust explosion were the result of a series of basic safety violations, which Massey disregarded, Main said.
The company did not apply adequate amounts of needed rock dust to areas of the mine involved in the explosion, allowing float coal dust, coal dust and loose coal to build up to dangerous levels, the report found. Massey also did not comply with the mine’s approved ventilation and roof control plans and failed to conduct adequate on-shift, pre-shift, and weekly examinations. The company did not maintain the longwall shearer in proper operating condition and failed to maintain a sufficient volume of air in order to dilute or dissipate methane gas present in the mine, Main noted.
The illegal practices and procedures used by Massey at the mine included giving advance notice of MSHA inspections to workers underground so they could quickly fix or hide problems, intimidation of miners, keeping two sets of books that hid hazards from MSHA and others, and hiding injuries, Main said.
Main concedes MSHA fell down on the job
MSHA District 4 enforcement personnel, who oversaw UBB, were responsible for more coal mines than any other coal district in the country. Nearly 30% of the nation’s underground coal mines and 14% of surface mines and facilities, are located in District 4. Yet, at the time of the explosion, District 4 had less than 20% of the inspectors, trainees and specialists in the Coal Mine Safety and Health Division, Main said.
While the internal review found that District 4 had one of the toughest enforcement records of all MSHA districts, it also identified a number of instances where enforcement efforts at UBB were compromised because established agency policies and procedures for inspections, investigations and mine plan reviews were not followed, Main added. Inspectors did not consistently identify deficiencies in the program for cleaning up accumulations of loose coal, coal dust and float coal dust. They did not use Massey’s examination books records effectively when determining negligence in allowing identified hazards to continue unabated. They did not identify the extent of noncompliance with rock dust standards along belt conveyors and did not identify major deficiencies in the operator’s ventilation and roof control plans. The internal review did note, however, that the thoroughness of District 4 inspections improved over the 18 months preceding the accident, Main said.
“Despite our efforts, there are operators who continue to violate the law and place miners at risk,” said Main, in the process taking the focus of his testimony for a bit off of Massey. “We all know MSHA cannot be at every mine all the time. As we are learning from the [U.S. Department of Justice’s] criminal investigation of UBB, even when MSHA is there, a determined operator that intimidates miners and willfully engages in a pattern of subterfuge will be at least partially successful in hiding hazardous conditions and practices from MSHA, with potentially tragic results. We need to change the culture of safety in some parts of the mining industry, so that operators are as concerned about the safety of their miners when MSHA is not looking over their shoulders as when MSHA is there.”
Main told the committee that the agency hopes to work with Congress in a number of areas.
- Certification Procedures: Federal law does not contain comprehensive certification requirements or any means for revoking certifications of miners in the most critical safety-related positions, such as mine superintendents, foremen or examiners. Legislation enabling MSHA to establish minimum qualifications for certification for these positions, and a decertification process for the failure to properly perform the required duties of such positions, would improve miners’ performance of key health and safety functions, and create a strong deterrent against putting profits above safety.
- Criminal Penalties: Legislation should strengthen the criminal provisions of the federal Mine Act. Main said the agency hopes and intends that criminal prosecutions under an enhanced Mine Act would continue to be rare, but legal obstacles should be removed. Enhanced criminal penalties should also extend to those who provide advance notice of MSHA inspections, he added. Even in the aftermath of UBB, there have been “troubling reports” of some operators continuing to provide advance notice of an MSHA inspection, said Main.
- Expanded Authority to Address Mines with Systemic Health and Safety Problems: The current law does not have a “quick fix” to the safety of mines like the Freedom Energy mine, where MSHA for the first time ever sought an injunction for a pattern of violation under section 108 of the Mine Act to change a culture of non-compliance that threatened the safety and health of the miners. While MSHA was successful in compelling the mine to implement additional safety and health protections, the current statute could be simplified to help MSHA adequately protect miners, Main noted.
- Whistleblower Protection: New legislation must ensure that miners are fully protected from retaliation for reporting safety problems, said Main. Because MSHA cannot be in every mine during every shift, a safe mine requires the active involvement of miners who are informed about health and safety issues.
UMWA’s Roberts claims Massey was a special problem
Also appearing at the March 27 hearing was United Mine Workers of America President Cecil Roberts. UBB, as was the case with pretty much every Massey operation, was non-union, but the UMWA gets involved in safety investigations at most non-union mines where there has been a fatal accident.
“It is not a secret in the coalfields that some operators give advance notice to miners working underground of MSHA inspections,” said Roberts in his prepared testimony. “Mine Managers make quick and superficial adjustments to the ventilation, quickly rockdust the entries where an inspector would be headed or shut down production entirely on a working section in order to avoid being cited for violating MSHA’s standards.”
Through the work of the U.S. Attorney’s office in Charleston, W.Va., Roberts said that observers finally have public confirmation from one of the Massey managers who engaged in such deceptive practices. Earlier in March of this year, UBB Mine Superintendent Gary May gave testimony in mine supervisor Hughie Elbert Stover’s sentencing hearing about that mine’s practice and system for providing information to miners working underground whenever federal and state safety inspectors were on the property, Roberts noted. Stover was convicted and sentenced to three years in prison on Feb. 29.
“We don’t mean to claim that Massey and its subsidiaries had a monopoly on these illegal practices, but its rogue attitude had become an integral part of the operating culture at the Upper Big Branch mine,” said Roberts. “It became so bad that miners came to view the unlawful mining practices as the norm. Some of the more experienced miners probably knew that what Massey was doing was wrong, but they had to work. Tolerating unsafe conditions was necessary if they wanted to keep their jobs.”
Roberts also read into the record a now-infamous October 2005 memo from then Massey head Don Blankenship to mine managers that many have cited as evidence that Massey ignored safety so it could run more coal. The memo said: “If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e. – build overcasts, do construction jobs, or whatever), you need to ignore them and run coal. This memo is necessary only because we seem not to understand that the coal pays the bills.”
Massey, while under Blankenship, who departed the company just before the Alpha takeover, steadfastly denied that it violated safety standards and that the Blankenship memo had anything to do with safety priorities.