In Tragedy's Wake, Mine Safety Advocates Push for New Protections

(April 10) -- The last indelible reminder of the danger came early Saturday morning, when hopes of a miracle ended with rescuers' failure to find any trapped survivors. But the warning signs at West Virginia's Upper Big Branch Mine were already crystal clear to both workers and federal safety inspectors long before Monday's disastrous explosion killed 29 miners.

As a veritable catalog of safety violations at the mine has emerged in the days since, the portrait painted by these citations has fueled outrage. At the same time, it has also boosted prospects that the aftermath of the tragedy could once again reshape the politics of coal mining in the United States.

Searchers discovered the bodies of the final four missing miners late Friday night. President Obama took the unprecedented step of calling for a meeting with his mining safety chief next week for a preliminary report on "what went wrong and why it went wrong so badly."

Presidents rarely take a hands-on approach to mine accidents. Carol Raulston, spokeswoman for the National Mining Association, an industry trade group, expressed surprise that Obama involved himself in the investigation -- and so quickly.

"That is unusual, we've not seen that before," she said. "Maybe he wants to add his sense of urgency to all this. We, too, want the investigation to go forward and in an expeditious way."

Obama has already named the team of investigators. Congressional hearings are planned once the rescue and recovery of bodies ends, and lawmakers are already expressing anger at both Massey Energy, the mine operator, and the Mine Safety and Health Administration, the federal agency charged with protecting miner safety. West Virginia Sen. John D. Rockefeller characterized Massey Energy as a "rogue" operator. His counterpart Robert Byrd has vowed to determine if MSHA had been lax in enforcement.

Ironically, just weeks ago, the Obama administration celebrated the 40th anniversary of the passage of the first federal mine safety reforms, which dramatically changed coal mining. The Coal Act was passed in the wake of the 1968 mine disaster at Farmington, W. Va., that killed 78 miners, including the uncle of West Virginia Gov. Joe Manchin. Farmington was just five miles from Monongah, where an explosion and fire in 1907 that killed 362 men and boys led to the creation of the first mining safety agency, the Bureau of Mines, in 1911.

Meanwhile, Massey Energy has stepped up its defense of its safety record and announced plans to make up for lost production at Upper Big Branch by increasing production at other Massey mines. In papers filed with the Securities and Exchange Commission Friday, the company listed safety improvements, such as reflective stripes on miners' clothing that "have become industry standards."

In a letter written two days after the explosion, Don Blankenship, Massey's controversial CEO, described efforts to develop a "revolutionary new miner helmet" that would keep its wearers safer. He dismissed media reports suggesting that the disaster was the result of the company's willful disregard of safety regulations as "completely unfounded," and added that media reporting of the numbers of safety violations at the mine have been taken out of context.

Since January, 2009, the Upper Big Branch "has had less than one violation per day of inspection by MSHA, a rate consistent with national averages," Blankenship said. "Most of the citations issued by MSHA to UBB in the last year were resolved on the same day they were issued."

But Davitt McAteer, who headed the mine safety agency during the Clinton administration and is now a vice president at Wheeling Jesuit University, scoffed at Blankenship's assertions, and said the number of violations at Upper Big Branch is "significant."

"The high number speaks to an attitude on the part of the company toward enforcement," he said. "What that tells you is, when an inspector says, 'Take care of that conveyor guard,' the operator says, 'Go to hell.'"

As it moves forward, the investigation of the explosion at Upper Big Branch will likely revolve around several key issues:

• The volume of citations. According to MSHA inspection records, more than 50 of the mine's violations were "unwarrantable failures," the most serious type of breach, which are issued when the threat can cause injury or death and the mine operator was aware of the hazard but failed to act. In the past 15 months, orders closing parts or all of the mine were issued 61 times, according to records released by Sen. Byrd's office. That means hazards were considered serious enough to order workers removed from the area until the hazards were corrected.

• Ventilation problems. In one instance, air in the emergency air system flowed backwards, which could have left miners without fresh air in their primary escape route, MSHA inspection records show. A mine foreman told federal inspectors who discovered an air-flow problem in January that he had been aware of it for about three weeks. On January 7, MSHA fined Upper Big Branch $136,000 after finding repeated problems with its ventilation plan, which are important to safety because they describe how a mine will control flammable and poisonous gases, such as methane.

• Accumulations of flammable coal dust on conveyor belts. This may be one of the most startling revelations, McAteer said. "That is about as dangerous a practice as you can imagine," he said. "Coal dust explosions have 10 times the explosive potential of methane. If I had a conveyor belt that had all this dust on it, I'm saying 'I'm going to take a chance with your life and the lives of these other 200 people and I don't care.' Everybody knows this is such a basic issue that it's a problem."

Celeste Monforton, a former MSHA official and now a professor of environmental research at George Washington University in Washington, said explosions like the one at Upper Big Branch are "100 percent preventable."

"If you can't get your ventilation in a coal mine right, you're in the wrong business. Go sell shoes," she said. "There are certain deaths in the workplace that we should never tolerate. When workers are killed in explosions in coal mines, there should be criminal charges. People should go to jail for things that are preventable."

Mining safety laws were upgraded after the Sago mine accident in West Virginia that killed 12 miners in 2006. But Tony Oppegard, a lawyer who has worked on mine safety issues for both the MSHA and the state of Kentucky, says the Sago reforms did not go far enough.

"They addressed post-accident measures, things designed to help miners after an explosion or a fire, as opposed to trying to prevent the disaster in the first place," he said.

In 2007, Oppegard said he helped convince the Kentucky legislature to pass new mine safety laws with preventive measures that are stronger than the federal safety laws. The state law requires six mine inspections a year and gives state investigators subpoena power; the federal law requires four inspections, and federal investigators have no power to subpoena witnesses for interviews. He's hopeful that the scope of West Virginia disaster will bring similar changes to the federal law.

Oppegard said existing regulations make it difficult for federal officials to cite Massey with a "pattern of violations" that would have enabled them to shut down the mine entirely.

"The mine had 50-some unwarrantable failures in one year," he said. "The federal government should have been in federal court, seeking an injunction and using an enforcement tool that could have saved lives.

"Coal mining is the only industry in the United States where both the industry and the agency accept that it's OK to have a certain number of violations. It's OK to have 100 violations a year if you're such and such a size. Why is it OK? Just because you are a coal mine, why can you endanger miners' lives?"

Oppegard represents the family of a miner who was crushed under nine tons of rock in an incident in Kentucky in January, not far from the site of the 1970 Hurricane Creek mining disaster that killed 38 men.

"A disaster is defined as five or more," Oppegard said. "Most miners do not die in disasters. They die one at a time, and it's not a disaster, except for that one family. Little is known about them. No one writes about them, not even the local paper. This man has a 3-year-old son. He was hard-working, a good husband with a good work ethic. The family is devastated, just like those 29 families in West Virginia."