Monday update: What kind of investigation will the Obama administration Department of Labor conduct into the Massey Mine Disaster?

April 12, 2010 by Ken Ward Jr.

Mine Explosion

Under the setting sun, a pile of flowers, lower right, covers the grave of miner William Roosevelt Lynch of Oak Hill, W.Va. on Sunday, April 11, 2010, at the Blue Ridge Memorial Gardens in Prosperity, W.Va. Lynch was one of 29 miners who died in the explosion at Massey Energy Co.’s Upper Big Branch mine in Montcoal, W. Va. on Monday. (AP Photo/Amy Sancetta)

Sometime this morning, investigators from state and federal agencies are expected to gather at the Mine Safety and Health Academy outside Beckley to begin planning their probe of the explosion one week ago that killed 29 coal miners at a Massey Energy mine in Raleigh County, W.Va.

Investigators will start examining maps and mine files. They’ll divvy up tasks and chart a course for how to get started on a massive and enormously complex investigation that could take many months.

But there are a few things they won’t do …

They won’t be open to the public … Almost certainly, the investigative interviews will occur behind closed doors. Members of the press and the public will be shut out from this terribly important government task. Despite the efforts of the Salt Lake Tribune, which has sued unsuccessfully in federal court previously to try to open such proceedings, the U.S. Mine Safety and Health Administration has staunchly insisted on secrecy in these proceedings.

Why not Web cast the interviews? Why not quickly make transcripts available publicly on the Internet. And why not hold periodic press briefings where detailed information about what has been found so far is made public?

All of the secrecy might make sense, if MSHA and state officials didn’t almost always allow coal company lawyers to sit in on the interviews. The only good argument for secrecy in these interviews is that allowing openness tips off the company to the direction investigators are headed, allowing them to thwart things like potential criminal prosecution down the road.

But if the company lawyers are in the room, well, what’s the point of the secrecy?

And how do the government lawyers get in the room? Well, miners who are being interviewed are allowed to be accompanied by a personal representative. And coal companies have gotten very good over the years at convincing miners and mine foremen to appoint company lawyers as their personal representatives. This happens despite the fact that — as happened in one case I covered involving Massey — investigators end up trying to get miners or foremen to testify against the company, putting the lawyer in a bit of a tough spot … Who is their client? The miner? The company? What if the interests of the two conflict?

One way around that is for MSHA to invoke its authority under federal law to conduct the investigation through a public hearing.  In addition to cutting out this issue with the lawyers — and having the positive benefit of being open and transparent — this route has the advantage of giving MSHA something it doesn’t otherwise have: Subpoena power to get documents and force witnesses to come and testify (or at least show up and take the 5th).

Mine Explosion

Mourners comfort each other as they wait in line at the funeral of William Roosevelt Lynch on Sunday April 11, 2010, in Beckley W.Va. Lynch, a 59 year-old miner, died in a mine explosion at Massey’s Performance Coal in Naoma, W.Va. (AP Photo/Jon C. Hancock)

But MSHA has seldom ever used this authority.  Gov. Joe Manchin ordered public hearings — though in a different format than MSHA could under federal law — into the Sago Mine Disaster. But Manchin has backed off his initial promise for hearings into Upper Big Branch, and isn’t expected to announce his firm plans for the state’s investigation until later this week.

The other thing that it’s not entirely clear that this investigation will do in any meaningful way is involve the families of the miners who died. That did happen during the Sago hearings. We’ll have to wait and see what — if anything — MSHA and the state do in that regard this time.

Finally, will there be a standard “internal review” — in which MSHA employees investigate each other — or will there be a true independent examination of whether government officials did all they could to avoid a disaster like this?

I put that question to Secretary of Labor Hilda Solis, and her response in an e-mail message to me was:

That has not yet been decided. When it has, I will announce it immediately and explain why we made the decision we made.

It’s worth noting that the S-MINER Act, which stalled in Congress, included a provision for independent investigations, and required MSHA to cooperate with them.

President Barack Obama has promised to get answers to what caused this mine disaster, and his administration has made a very big deal about its commitment to transparency. Stay tuned …


15 Responses to “Monday update: What kind of investigation will the Obama administration Department of Labor conduct into the Massey Mine Disaster?”

  1. John A. Joslin ( Detroit ) says:

    So far , there are two guys who are keeping their tiptoeing slippers on when it comes to backing an open public hearing into the Massey Mine disaster.

    As one citizen , Don Blankenship may think it’s best that all the rest of the citizens don’t ever know the full story of what happened in that mine. Just a guess. Even if that’s not his preference, he knows full well from experience that ‘closed doors’ do not an open public hearing make.

    In any case, Blankenship is certainly is not out there insisting that MSHA convene an open public hearing.

    Gov. Joe Manchin may be waiting for someone else to take the lead on this but he is not presently exercising his right as a citizen of West Virginia to demand there be an open public hearing, either.

    We have learned that ‘closed door’ investigations have been the sorry rule in the aftermath of many previous coal mining disasters. We have seen that the resulting changes to the laws governing the standards and enforcement of Miners’ Health & Safety have been inadequate. They do not get the job done right behind those closed doors. Never have.

    The ‘ closed door ‘ investigation , hampered by lack of proper subpoena power to get at the truth, and packed full of the opportunity to discreetly intimidate witnesses fearful of losing their jobs , is tilted toward ONLY more public ignorance.

    The ‘closed door ‘ mining disaster investigation is ONE unsafe past practice that can and should be ended immediately.

    A public outcry can do that even if others prefer to tiptoe.

  2. bill says:

    could someone please tell me why, obama and his team of federal investigators would even let the state investgators be involved in this matter, the reason obama is sending people to montcoal, is because the state inspectors failed to do there jobs.

  3. Vernon says:

    The company lawyer is not there to protect the miner’s rights but to make sure he stays in line. If you don’t accept the company’s offer of free “help” in the form of their attorney, you must not be a team player or loyal “member” of the company “family.” I sincerely doubt any miner will give testimony that Massey is anything but a safe, law-abiding company that always complies with all regulations. All will say that they were indoctrinated with a “safety first” attitude and that they were never told to cut corners. I really hope that they are provided some meaningful sort of whistleblower protection so they can resist the intimidation. For any miner reading this, please know that it’s no dishonor to your fallen brothers to testify against your employer.

  4. Frank Hoard (Ohio) says:

    Unfortunately, the issue is, if miners whistle blow, and Massey shuts down the mine (either forced to, or they decide to due to costs), then the area will take a hard economic blow, in an area where jobs are anything but plentiful.

    So, a whistle blower is bound to lose his job one way or another. Don’t think that these miners don’t know the score. Don’t believe that they don’t understand the scenerio above. Mining is a highly accident prone profession (not always deadly), and miners come to accept that danger to provide a better life for their families. Some pay the highest price, and that my friends is life.

    There will always be someone to blame, there will always be someone else at fault, & there will always be deaths in the mining business.

    I feel sorry and my prayers go out to the miners’ families. Long live the miner for they provide light in the darkness.

  5. James says:

    “could someone please tell me why, obama and his team of federal investigators would even let the state investgators be involved in this matter, the reason obama is sending people to montcoal, is because the state inspectors failed to do there jobs.”

    And MSHA didn’t fail as well? MSHA issued citations the day of the explosion at UBB and issued a 124 to date this year (and 515 last year). UBB should have been cited for a pattern of violations by MSHA. The reason obama is sending people to montcoal is because both the federal and state inspectors didn’t do their jobs.

  6. Shelby says:

    I hope the disgruntled employee who stated Massey ordered all ventilation curtains be destroyed is present at the hearings, How is a mine supposed to be ventilated, minus curtains (stoppings) ? The air movement would be short circuited, and not ventilate the working areas, thus allowing methane gasses to accumilate.

  7. […] congressional delegation take the important step of demanding that MSHA and the state hold this investigation out in the open, so everyone can see what is said, what questions were asked, and why 29 men had to […]

  8. BrokenArrow says:

    Above all else, my deepest, most sincere, heartfelt sympathy to those who have perished, to their families, and friends. I wept for days over this tragedy. Now, I weep for America, too.

    Justice had better be swift, and rightous. This means Blankenship should be tried on television…….period.

    I just can’t get this out of my mind. Rasied in a good, Irish Catholic family of eleven, I know what it’s like to go without. However, my Daddy was a member of the UEW, that’s United Electrical Workers. Yes, a UNION!!!!! As I said, there were things we had to do without. However, a FATHER was not one of them.

  9. oldcoalminer says:

    This mine, UBB, did have a very bad year in 2009 and 458 violations, 50 orders, and 14 accidents for a union free longwall mine. Has anyone looked at other longwall mines in the state of WV. Lets look at some others (#1) 981 violations, 49 orders, and 24 accidents; (#2) 727 violations, 16 orders, and 15 accidents.(#3) 714 violations,14 orders, and 23 accidents. (#4) 631 violations, 9 orders, and 11 accidents. None of these mines had very good safety records in 2009. Should they be shut down? #1 McElroy, #2 Loveridge, #3 Blacksville, #4 Robinson Run. What company has the worst safety record in WV. It doesn’t look like it’s Massey. These figures come from MSHA’s web site and it doesn’t look like union operations are any safer than union-free operations. Looks like longwall mines aren’t very safe to work in.

  10. Ken Ward Jr. says:

    oldcoalminer

    Nice try … but you’re comparing apples to oranges in a number of ways …

    First of all, just for example, McElroy is a much bigger mine. It had 2.1 million man-hours worked, compared to 482,000 hours worked at Upper Big Branch. So, it had more citations, but UBB, with much fewer hours worked, had far more serious enforcement actions, expressed in your example by orders issued.

    And if you compare the accident rates, McElroy is far better.

    But, as I’ve written before, all of that sort of comparison is beside the point. The real point is: Why is it considered OK for coal companies to violate established safety practices and regulations? Does society really want to accept that, and accept the almost inevitable results: 29 families who are now grieving terrible losses?

    These sorts of comparisons of the records of various mines — including the constant harping from both sides about union vs. non-union — really miss that point: Why is it OK for coal companies to violate the law?

    Ken.

  11. Vnxq809 says:

    Ken,

    Man-Hours worked has nothing to do with the size of the mine.

    Vnxq809

  12. James Horn says:

    I sincerely express by condolences to the families who have lost their loved family members and friends. I pray that there will be public hearings conducted similar to the public hearings held at Buckhannon, WV following Sago. Tranparency, in the investigation of this disaster, is crucial.

  13. oldcoalminer says:

    OK Ken, apples to apples. Enlow Fork 289 violations, 28 accidents, 9 orders, 1.6 mill. manhours, 11 mill tons produced. Bailey 527 violations, 7 orders,21 accidents, 1 fatality, 1.9 mill man hours, 10.2 mill. tons. How does that compare with the much safer UMWA operations. Safer and produces more? Can’t happen check it out. MSHA. gov

  14. Vnxq809 says:

    Great point, Oldcoalminer……What say you, Mr. Ward??

  15. Ken Ward Jr. says:

    I say that comparing one or two of each kind of mine is not anywhere near the size of a sample needed to do anything meaningful at all …

    I have not written on my blog or in my stories anything on the union vs. non-union issue — I’ll let Coal Tattoo reader Phil Smith address that. I’ve pointed out before — the Jim Walter Disaster was at a union mine, and I’ve written many stories about the deaths of miners at union operations. My first mine disaster was at a CONSOL unionized mine.

    and it remains beside the point: Why should any number of violations by the coal industry be acceptable when the lives of miners are on the line?

    To me, that’s the much more important point … violations of any type at any mine simply shouldn’t be accepted as the way it goes … why isn’t the standard zero injuries, zero accidents, zero deaths and zero violations?

    Ken.

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