Coal Tattoo

This just in from the U.S. Environmental Protection Agency:

On September 28, the U.S. Environmental Protection Agency’s (EPA) independent Science Advisory Board (SAB) released their first draft review of EPA’s research into the water quality impacts of valley fills associated with mountaintop mining. In their draft review, the SAB supports EPA’s scientific research and agrees with EPA’s conclusion that valley fills are associated with increased levels of conductivity (a measure of water pollution for mining practices) in downstream waters, and that these increased levels of conductivity threaten stream life in surface waters.

“This independent review affirms that EPA is relying on sound analysis and letting science and only science guide our actions to protect human health and the environment,” said EPA’s Assistant Administrator for Water Pete Silva. “We will continue to follow the science and solicit input from all stakeholders as we safeguard water quality and protect the American people.”

The SAB reviewed EPA’s draft report “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams,” which uses field data to derive an aquatic life benchmark for conductivity. The benchmark is intended to protect 95 percent of aquatic species in streams in the Appalachian region influenced by mountaintop mining and valley fills. Based on that science, EPA released guidance in April designed to minimize irreversible water quality impacts caused by mountaintop mining.

Following the completion of the external peer review and review of public comments, the report will be revised and published as a final report.

A growing body of scientific literature, including previous and new studies performed by EPA, show significant damage to local streams that are polluted with the mining runoff from mountaintop removal. To protect water quality, EPA has identified a range of conductivity (a measure of the level of salt in the water) of 300 to 500 microSiemens per centimeter that is generally consistent with protecting life in Appalachian streams. The maximum benchmark conductivity of 500 microSiemens per centimeter is a measure of salinity that is roughly five times above normal levels.

The draft Science Advisory Board report is available here.

Massey Energy just released an updated “Letter to Stakeholders,” following up on a similar document it provided in the aftermath of the April 5 Upper Big Branch Mine Disaster.

It’s more than 6,600 words long, and probably deserves a closer read. Much of it repeats previous Massey complaints about MSHA regarding ventilation plans and the ongoing probe of the worst U.S. coal-mining disaster in 40 years. I’ve linked above to the entire letter, so you can see it for yourself.

But there were a couple of things that caught my eye and are probably worth pointing out.

First, Massey included this information about revisions to its previously reported corporate-wide safety record:

In the aftermath of the April 5 accident, Massey began a meticulous review of the Company’s accident reporting at all of its facilities. The results from this review have revealed errors in previously reported non-fatal injury rates (NFDL rates) for Massey operations from 2007 thru 2009. Massey’s review resulted in the following adjustments:

— Massey’s NFDL rate for 2007 increased from 2.05 to 2.63;

— Massey’s NFDL rate for 2008 increased from 1.94 to 2.52; and

— Massey’s NFDL rate for 2009 increased from 1.67 to 2.33.

To check the validity of its revised NFDL rates, the Company engaged its independent registered public accounting firm to test the underlying data relied upon by the Company. While the Company is disappointed in the lapses in its reporting procedures, it recognizes that the revised NFDL rates for the 2007, 2008 and 2009 calendar years still rank better than the industry averages for those annual periods. The Company is working to ensure that similar reporting errors are avoided in the future and Massey remains committed to putting the safety and health of our miners first.

And, then, there’s this information about what Massey describes as “mistakes” at Upper Big Branch:

While the investigation into the accident is a long way from being completed, Massey nevertheless has been studying it closely for lessons that can be learned — and applied — as soon as possible. We have discovered mistakes that were made at UBB and have moved to fix them. While we do not believe these mistakes contributed in any way to the accident, we are disclosing them in the interests of transparency and accountability:

— Track that should have been removed from the gate road of the longwall was not. It was not against the law to leave it, but there was a risk in doing so because it can provide a pathway for an electric current.

— Some non-permissible equipment was moved on that track, both by Massey members and MSHA representatives. This may have been the result of confusion for some people who may not have known that recent ventilation changes had altered what was permissible.

— In some places, air-lock doors were used rather than overcasts to route fresh air past neutral airways. While this was not against the law (MSHA fully approved the doors and routinely passed through them) it violated Massey best practices.

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This just in today from West Virginia Gov. Joe Manchin’s Senate campaign office:

Joe Manchin was endorsed by the West Virginia Coal Association today due to his longstanding commitment to the coal industry and his p ledge to be an independent voice for West Virginians in Washington. Governor Manchin has been a leader in fighting to make sure that the coal industry will lead the way to our nation’s energy independence by opposing the Obama cap and trade agenda and passing historic mine safety reforms.

“I am honored to have received the endorsement of the Coal Association,” said Governor Manchin. “Throughout my time in office, one of my top priorities has been to ensure that our coal industry continues to lead the way to our future energy independence; that is why I have repeatedly stood up to the Obama administration’s cap and trade proposal that would cripple this vital piece of our economy. I want to thank President Bill Raney, Chairman Gary White and all the members of the Coal Association who have chosen to join the Chamber of Commerce, the National Rifle Association and others in endorsing my candidacy.”

John Raese is lying to West Virginia voters in his latest campaign ad when he claims that Manchin supports cap and trade. Joe Manchin has led the fight against the Obama cap and trade agenda because he knows it would cripple the coal industry that is so vital to our economy. The Alternative and Renewable Energy Act of 2009 that was passed by the West Virginia Legislature is designed to ensure that coal and natural gas retain their integral roles in leading our nation toward energy independence by classifying them as alternative energy, meaning that all the goals of the legislation can be met solely through coal and natural gas production.

“Joe Manchin has spent his entire career standing up for the coal industry, our coal miners and its importance to West Virginia’s economy, which is why the Coal Association endorsed him today,” said Lara Ramsburg, Manchin campaign spokeswoman. “This follows the endorsements of the National Rifle Association and the West Virginia and US Chambers of Commerce that demonstrate that the Governor’s record of fighting for this state’s hardworking families is more important to voters than John Raese’s history of putting profits above people.”

The U.Department of Labor just released its major report on the “pattern of violations” program at the federal Mine Safety and Health Administration.

The report is titled, “In 32 years, MSHA has never successfully exercised its pattern of violations authority,” and the entire document is online here. The conclusion:

Administration of this authority has been hampered by a lack of leadership and priority in the Department across various administrations.

It goes on:

MSHA took 13 years to finalize POV regulations. Those regulations created limitations on MSHA’s authority that were not present in the enabling legislation and made it difficult for MSHA to place mines on POV status. For the next 17 years, MSHA Districts performed POV analyses based on individual interpretations of requirements, but never put any mine operator on POV status. In 2007, MSHA attempted to implement a standardized method based on quantitative data for identifying potential POV mines. However, (a) the process was unreliable and (b) the criteria were complex and lacked a supportable rationale.

Among the other specific findings:

— MSHA did not monitor the implementation of mine operators’ POV corrective action plans;

— Logic errors caused unreliable results from MSHA’s POV computer application;

— Tests identified no deficiencies in the reliability of data MSHA used for POV screening; and

— Delays in testing rock dust samples could cause delays in identifying safety hazards.

After yesterday’s speeches by West Virginia Democratic Sens. Jay Rockefeller and Carte Goodwin, Wyoming Republican Michael Enzi — the ranking GOP member of the Senate Labor Committee — blocked immediate passage by the Senate of the latest mine safety reform bill. Sen. Rockefeller had sought to have the Senate approve the bill by unanimous consent. A companion bill in the House has been approved by that body’s Labor Committee, but hasn’t been brought to the floor yet.

Sen. Enzi complained that Rockfeller and Goodwin were just trying to create a political issue, rather than really trying to move the legislation forward:

As my colleagues well know, negotiations had been making significant progress until we ran into a stumbling block known as the election cycle. The staffs of seven Senators had been meeting several times a aweek for over 2 months and all throughout the recess period. Agreements had been formed on over a dozen important proposals, and several more important ones were right on the brink of compromise when the talks were abruptly called off until after the election.

Despite what has been said in the press and on this floor, the simple fact is that we might well have had an agreement by now if the majority hadn’t decided that they would rather have an election issue. Certainly, it is not for me to consult on the political calculations of my colleagues. but it seems to me that political theater and failing to work together to get important things like this done are exactly what the American people are so frustrated by this year.

That’s the video of the speech Sen. Jay Rockefeller, D-W.Va., gave today calling on the Senate to pass more mine safety legislation, this time by “unanimous consent.”

You can read the whole thing here, and this is part of what Sen. Rockefeller had to say:

The families of the Upper Big Branch miners are wondering what’s the hold up? And, quite frankly, so am I.

We have a responsibility to pass meaningful workplace safety legislation this year and anything short of that is really unacceptable to me and should be to all of my colleagues in the Senate.

… Our nation’s workers should not have to wait any longer for this legislation.

Sen. Carte Goodwin, D-W.Va., also delivered a speech on the issue, saying:

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This just in from Massey Energy:

Massey Energy Company today announced that mine safety officials for the state of West Virginia have approved the Company’s plan to conduct its own investigation to determine the cause of the April 5, 2010 explosion at Upper Big Branch. The Company will begin its investigation as soon as it receives approval from the federal Mine Safety and Health Administration, which is currently reviewing the plan.

“Massey, as well as UBB family members who want to get to the truth, are very excited to finally have our experts view the mine together,” said Massey Energy Chief Operating Officer Chris Adkins. “We have assembled some of the finest experts in the world, but to date they have not been free to investigate in a methodical, scientific way. Now, however, we are very close to being free to conduct a thorough investigation that will provide the answers that the families deserve.”

To date, the Company has only been permitted to accompany State and MSHA officials on their investigation underground. In addition to directing the focus of the investigation on a day-to-day basis, MSHA has limited the number of individuals who can participate on behalf of the Company to one individual per inspection team. This has prevented experts in explosions, geology, mining engineering, electrical engineering and mining ventilation from collaborating and jointly investigating the potential causes of the accident.

Adkins pointed out that time is crucial. “Every day, evidence is deteriorating,” said Adkins. “We need MSHA to approve our plan quickly, as the State has done.”

Previously, MSHA’s lead investigator, Norman Page, testified that the Company would be allowed to conduct its own investigation after MSHA had concluded its underground investigation. MSHA reported last week that its investigation underground is approximately 90% complete. The Company is awaiting approval to investigate those areas already investigated by MSHA.

This just in from The Associated Press:

The  Greenbrier owner Jim Justice is buying National Coal Corp.

The Knoxville, Tenn.-based company announced the deal Tuesday. National Coal says Justice agreed to pay $1 per share, but didn’t announce a total price.

As of June 30, the company had more than 8.6 million shares outstanding. Justice’s offer includes shares that can be issued by exercising options. National Coal says Justice’s Ranger Energy Investments is paying a 54 percent premium over its closing price of 65 cents a share Monday.

Justice did not immediately return a call seeking comment. Justice sold part of his coal business to Russia’s OAO Mechel last year, then acquired The Greenbrier for $20.1 million.

Justice bought assets from National Coal for $11.8 million and bought $30.3 million worth of its debt last April.

MSHA issues new ‘pattern of violations’ criteria

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Earlier tonight, the U.S. Mine Safety and Health Administration announced a long-awaited new criteria for deciding which coal mines will received stepped-up enforcement actions for committing a “pattern of violations” under federal law.

MSHA chief Joe Main said in the agency’s news release:

Since the passage of the Mine Act more than 30 years ago, not one mining operation has ever been placed on a pattern of violations. We have known for some time that the current system is broken and needs to be fixed. This new screening process improves upon the old one, which cast too broad a net and did not distinguish mines with the highest levels of elevated enforcement. This new system will let MSHA focus its attention on those mines that are putting miners at greatest risk.

MSHA’s changes to the POV program cannot fix shortcomings that require legislation or changes to the existing regulations. This is a stop-gap measure until reform can occur. We are aggressively pursuing both regulatory and legislative reforms, but in the mean time this new policy improves our ability to identify problem mines. Our goal with each of these reform efforts is to identify mines with a pattern of dangerous conditions and encourage them to improve their safety records. If a mine fails to do so, it will be placed into POV status.

I don’t see much yet — anything really — on MSHA’s Web site about this, perhaps because they didn’t announce the action until a while after regular business hours ended today.

But I’ll try to give you what I can from their press release, even if there’s not time at this hour to compare what they announced today with the previous criteria (see here and here). Coal Tattoo readers, of course, recall that this “pattern of violations” business is a major tool from Congress that MSHA has never really used, but that has received renewed interest and scrutiny from lawmakers and the agency following the disaster at Massey Energy’s Upper Big Branch Mine.

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Law enforcement stand ready as protesters sit in front of the White House in Washington, Monday, Sept. 27, 2010, during a demonstration calling for the end of mountaintop removal for mining. (AP Photo/Carolyn Kaster)

Here’s the latest Associated Press report on Appalachian Rising:

By Frederic J. Frommer

WASHINGTON — Around 100 people have been arrested outside the White House while protesting against mountaintop removal mining.

The protesters were arrested Monday after refusing orders from U.S. Park Police to leave the sidewalk outside the White House. They staged a rally at nearby Freedom Plaza earlier in the day.

The crowd of mostly youthful ralliers carried signs like “Blowing Up Mountains for Coal Poisons People” and “Mountain ecosystems won’t grow back.” Some carried small white crosses adorned with messages such as “water pollution” and “corporate greed.”

In mountaintop removal mining, forests are clear-cut, explosives blast apart the rock, and machines scoop out exposed coal. The earth left behind is dumped into valleys, often covering intermittent streams.

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Gazette photo by Lawrence Pierce

My buddy Gary Harki had a story in this weekend’s Sunday Gazette-Mail profiling Clay Mullins, a coal miner who lost his younger brother, Rex, in Massey Energy’s Upper Big Branch Mine Disaster.

We packaged that story with a Sunday-Monday pair of stories I did about how the U.S. mining industry has not moved forward yet with new rock-dust testing meters or with explosion barriers — two things that might help prevent explosions like the one at Upper Big Branch on April 5.

Reading NIOSH reports about the explosibility meters and about explosion barriers — and how neither are required in U.S. coal mines — was much like looking back at earlier reports about lightning induced explosions and poorly designed mine seals after 12 workers died at Sago.

Remember that in his remarks way back on April 15, President Obama directed Labor Secretary Hilda Solis and MSHA chief Joe Main to “every tool” available to protect the nation’s coal miners …

Friday roundup, Sept. 24, 2010

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In an Aug. 31, 2010 photo, clean up of the Dec. 2008 coal ash spill continues at the TVA Kingston Fossil Plant near Kingston, Tenn. Roane County schools’ extensive facilities improvements are being funded by $32 million that TVA is allocating for damages from the spill. (AP Photo/ Knoxville News Sentinel, Michael Patrick)

As the public hearings wind down on EPA’s proposed regulation of toxic coal ash from power plants (there’s jut one hearing left — next Tuesday in Louisville, Ky.), the Knoxville News-Sentinel continues its coverage of the aftermath of the huge TVA coal-ash disaster that finally put this issue on the front burner for federal regulators.

In this story, the paper reports:

Congregating in a small church near ground zero of an environmental disaster, residents of Roane County’s Swan Pond community on Tuesday made a wish list for their future.

Sarah McCoin wants part of the area decimated by the December 2008 ash spill at TVA’s Kingston Fossil Plant to become what she called an environmental wildlife recreational center with walking trails, riverside docks and study areas.

“I want it not to be forgotten that the coal ash disaster occurred,” said McCoin, whose family’s roots in the community stretch back generations.

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OK … I wasn’t really going to write much more about Gov. Joe Manchin’s Senate campaign ad regarding coal-mine safety. This morning’s Gazette story made a brief mention of it, in covering the fact that the Manchin administration hasn’t followed through on a key part of the governor’s mine safety executive order following the Upper Big Branch Mine Disaster.

I was even going to pass on the press release that the West Virginia Republican Party sent out this morning about Manchin’s ad. The release was headlined, “Manchin mocks mine safety: Shoots newest ad at mine under criminal investigation,” and started off:

Governor Manchin’s newest ad for the Special Election for U.S. Senate was shot at a mine under criminal investigation for faking safety records.

Manchin and UMWA official Cecil Roberts taped the spot recently at Patriot Coal’s Federal No. 2 Mine … that mine has been partially or completely shut down by safety authorities at least three times this year for excessive methane levels.

The release quoted GOP Chairman Mike Stuart:

It’s embarrassing for Manchin to appear tied-at-the-hip to big labor and to be making a spot about mine safety at [a] mine with thousands of violations going back to 1998. It’s even more galling when you realize that this mine has repeatedly been shut down for safety reasons, as recently as this month.

Stuart continued:

Standing at the portal of a potentially criminal operation and calling John Raese ‘a danger to miners’ is hypocritical at best, slanderous at worst … An ad like this is offensive to every West Virginian who cares about the safety of our miners. What won’t Joe Manchin say to get elected?

Coal Tattoo readers are well aware of the federal criminal investigation that is ongoing at Patriot’s Federal No. 1 Mine.  They know that one Patriot foreman has pleaded guilty to faking a key methane test at the mine, and that he is cooperating with the ongoing investigation.  They also know that the mine has indeed been repeatedly shut down when methane was found underground (see here, here and here).

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Today’s supposed to be the deadline for the U.S. Environmental Protection Agency’s regional administrator, Shawn Garvin, to make a recommendation to EPA Administrator Lisa P. Jackson about the permit for Arch Coal Inc.’s Spruce Mine.

EPA has delayed that recommendation deadline once, and it sounds like the agency — while Garvin may have made a recommendation — isn’t going to be telling the public what that recommendation was, at least for a while.

Recall, of course, that the Obama administration’s EPA has been seeking to invoke its Clean Water Act authority to veto a permit issued by the U.S. Army Corps of Engineers for the Spruce Mine (see previous posts here, here and here).

I’ve not heard back from EPA officials about what they plan to do — or not do — today. But the Wall Street Journal and West Virginia Media seem to believe that EPA plans no public statements today about the regional administrator’s recommendation. And The Associated Press is reporting:

The EPA’s Region 3 administrator was to send a recommendation about Arch Coal’s Spruce No. 1 mine to headquarters in Washington, D.C., Friday, but an agency spokeswoman won’t say what it is. She says it’s part of the internal review process.

UPDATED: EPA officials issued this statement this afternoon:

EPA won’t be releasing the Region 3 recommendation since it is not a final decision on this matter and it is part of the internal and deliberative process.

Now, I’m not sure that EPA’s regulations specifically require the agency to make this recommended determination from the regional administrator public … But I do know that Administrator Jackson has promised  “increased transparency” in its mining permit reviews, and it’s not clear how not making this recommended determination public right away meets that commitment.

In case you missed it, we have a story in today’s Gazette that reveals that the Manchin administration hasn’t exactly done everything the governor promised in the wake of Massey Energy’s Upper Big Branch Mine Disaster.

Among other things, Gov. Joe Manchin has yet to come up with any concrete legislative proposals for adding to the mine rescue reforms he pushed after the Sago and Aracoma disasters and improving accident prevention in our state.  A set of possible legislative changes, provided to the governor many weeks ago, hasn’t been submitted to lawmakers.

But most specifically, today’s story focuses on the state’s failure to do any rock-dust testing as part of the inspection sweep the governor ordered just a week after the Upper Big Branch explosion — despite a specific mandate in his executive order that such dust sampling be done.

Since Sago and Aracoma, Gov. Manchin has made much of how West Virginia moved more quickly than the federal government to institute safety changes in the mining industry.  And now, of course, the governor is running for U.S. Senate and continues to campaign in part on his opposition to the Obama administration’s coal policies.

In this instance, Gov. Manchin made much of how he was moving before the U.S. Mine Safety and Health Administration did to toughen “rock-dust” standards meant to help prevent major explosions underground, saying in an interview with me:

I’m going to do everything I can in this state. I can’t wait until the feds start moving.

But it turns out West Virginia inspectors didn’t do the sampling that the governor ordered them to do — and even if they had, the state still hasn’t gotten a lab up and running to analyze those samples.

Remembering the Jim Walter Mine Disaster

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UMWA miner Ricky Rose, who survived the 2001 disaster, showed me his truck — decorated to honor his fellow miners who were killed — during a visit to Brookwood, Ala., four years ago.

After a visit to Brookwood, Alabama, four years ago, I wrote these paragraphs as part of a story about coal-dust problems being among the most common violations in America’s coal mines:

On a September afternoon in 2001, 32 miners repaired drilling machines and hoisted tunnel supports into place at the Jim Walter Resources No. 5 Mine. The mine is North America’s deepest, tracking the 6-foot-high Blue Creek seam almost a half-mile beneath the rolling hills just east of Tuscaloosa.

At about 5:20 p.m., a chunk of mine roof fell onto a battery charger deep underground. The impact set off a spark, igniting a pocket of methane gas. Four miners were injured, and co-workers rushed to their aid.

Then, at 6:15 p.m., a second, far larger explosion tore through the mine. Thirteen miners died, making it the nation’s worst coal-mining disaster in 17 years.

Today is the 9th anniversary of the disaster at Jim Walter No. 5, and I’ve been thinking a lot about the folks I met during that trip.  I had wanted to visit the Alabama coalfields in part because of the stories I heard about the area from my friend and former Gazette reporter Robert Woodrum, who turned his dissertation on Alabama coal miners into the book, Everybody Was Black Down There: Race and Industrial Change in the Alabama Coalfields.

There were also West Virginia connections to the disaster. Two of the miners who died, Sammy Joe Riggs and Joseph Sorah, were originally from here.
Sorah was the brother of Nelson Sorah, who was the Gazette’s city editor when I interned here in 1989.

As it turned out, going to Alabama also helped me report on some of the warning signs that were ignored by mining regulators and the industry about lightning strikes and problems with underground mine seals — warning signs that, if heeded, might have presented the 2006 Sago Mine Disaster and maybe the Kentucky Darby Disaster as well.

It’s worth remembering that the Bush administration’s response to Brookwood was to proceed to dismantle the regulatory safety net intended to protect our nation’s coal miners. Since then, we’ve seen not only Sago, Aracoma and Darby, but also Crandall Canyon and now, Upper Big Branch. Since that day in September 2001, 292 coal miners in the United States have died — and that doesn’t count the perhaps 10,000 who succumbed to black lung in the last decade.

They’ll  have a little memorial service in Brookwood again today, to remember the dead and honor their memories. I certainly recall what Darryl Dewberry, vice president of Alabama’s UMWA District 20, told the crowd at the 2006 memorial service that I attended:

The legacy of Brookwood remains unfinished.  It can happen again without constant vigilance.

Here is the text of remarks given by Labor Secretary Hilda Solis to the National Mining Association Executive Board Meeting earlier today:

There is no question that the American economy simply cannot function without mining.

From the coal that makes it possible for us to turn on our lights and plug in our computers, to the sand and gravel that literally forms the foundation of our nation’s infrastructure, I know – and the President knows – that our country simply cannot function without the resources provided by America’s mining companies.

As the nation’s Labor Secretary, I know many of you provide the kinds of good paying, middle class jobs that our economy desperately needs right now.

I know that some of the sand and gravel operators got a little help from the Recovery Act, and I’m hopeful we’ll be able to keep things going with some additional infrastructure investment soon.

When the President asked me to take this job, I knew we were in a recession and that working to create good jobs would be the central focus of my work.

That focus, that work has not changed.

But the events of April 5 made clear the need for another priority… one that would require a laser like focus, not just for me, or the President, or even all of you … but for every worker in America, and that’s worker health and safety.

So it’s simply not possible to have a conversation about mining in 2010 without talking about the tragedy at the Upper Big Branch.

The day after the explosion, when MSHA and the company were still in rescue mode, I traveled to offer support to the family members.

I didn’t announce that I was coming.

The next morning, I rode in a pick up truck without any escort or flashing lights so the media wouldn’t know that I was there – because I wasn’t there to get attention.

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While writing this morning about a new West Virginia Supreme Court ruling regarding public records, I got to thinking about our friend, Republican Congressional candidate Spike Maynard.

We know that Maynard’s former colleagues on the court did their best to protect Maynard’s e-mail correspondence with his friend, Massey Energy CEO Don Blankenship — despite the interesting questions about this ruling raised by Justice Margaret Workman.

But couldn’t Maynard just make those e-mail messages public himself? Wouldn’t that answer any questions about exactly what the justice and the coal executive were discussing via computer?

Maynard’s campaign didn’t respond to my last query to them regarding the future of Southern West Virginia’s economy given the almost certain decline in coal production there … I’ve asked if they will release these e-mail messages … stay tuned, and I’ll let you know what they say.

Massey managers file suit to block subpoenas

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Six Massey Energy managers, including the company’s corporate safety chief, have filed suit in Raleigh County, W.Va., to block subpoenas that would force them to appear for questioning related to the April 5 Upper Big Branch Mine Disaster.

I’ve posted a copy of their court filing here, and you can see today’s previous post for more about this.

The employees who filed the case included Massey’s vice president for safety, Elizabeth Chamberlin, and five others: Rick Foster, Rick Nicolau, Gary May, Jamie Ferguson and Wayne Persinger.

In their court papers, lawyers for the six Massey employees argue that the state Office of Miners Health, Safety and Training is wrongly using its legal subpoena power to help the federal Mine Safety and Health Administration try to interview witnesses in the disaster investigation:

OMHST did not issue the subpoenas for a proper, legislatively-authorized purpose. In short, OMHST is invoking compulsory process in order to allow the federal Mine Safety and Health Administration to circumvent limits placed on its investigative authority by the United States Congress.

Remember that the West Virginia Legislature gave the state mine safety office subpoena power for all accident investigations, whether they are conducted in private or in public. But, Congress allows MSHA to compel witnesses to appear only if federal authorities decide to conduct their probe through a public hearing — which the Obama administration has refused to do.

The Massey lawyers argue:

It is obvious that MSHA has induced OMHST to exceed and abuse its authority in order to end-run limits the U.S. Congress placed on the federal agency’s authority. The use of OMHST authority in this manner is offensive and improper, and calls into question the fundamental fairness of this proceeding.

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The Associated Press has a story out today with the headline, Massey CEO:  Miners knew of methane before blast. It reports:

Several workers in a southern West Virginia coal mine knew explosive methane was pouring into the mine just moments before the blast that killed them, according to the mine owner’s top executive.

There’s evidence miners cut off electricity to the cutting head of the Upper Big Branch mine’s main mining machine and stopped its coal conveyer, Massey Energy Co. chief Don Blankenship said. Blankenship based his theory largely on photographs taken by federal investigators.

AP business writer Tim Huber adds:

The revelations are the newest about the April 5 explosion that killed 29 miners and injured two.

Blankenship’s information supports Massey’s theory that so much methane flooded the mine so quickly that it overwhelmed safeguards including ventilation equipment that the Virginia-based company argues was weakened by government regulators.

OK … it’s important to understand that the basic fact here: That the longwall machine was turned off prior to the explosion, isn’t news.

We reported it in the Gazette more than a month ago, based on information provided by Ron Wooten, director of the West Virginia Office of Miners Health, Safety and Training:

The review also indicated that someone hit the shut-off button on the longwall machine about 90 seconds prior to the explosion, Wooten said.

It’s not clear why the machine was shut off. Investigators are considering the possibility that some condition in the mine prompted workers to hit the button. Or, Wooten said, workers simply might have shut down the longwall machine for the scheduled shift change. Workers who could have answered that question were killed in the explosion, Wooten noted.

And, this information was also provided by MSHA during a media briefing the agency held for reporters via telephone back on Aug. 11. During that call, MSHA coal administrator Kevin Stricklin explained:

The machine was not mining coal when this occurred. We’re not sure if someone hit an emergency stop button or if the person who had remote control — if you walk so far away, it also shuts down.

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