Coal Tattoo

Cecil Roberts, International President of the United Mine Workers of America, right, listens as Massey Energy Company Chief Executive Officer Don Blankenship testifies on Capitol Hill in Washington, Thursday, May 20, 2010, before the Senate Health and Human Services subcommittee hearing on mine safety. (AP Photo/Carolyn Kaster)

While testimony yesterday in federal court in Beckley focused on advance reporting of MSHA inspections at Massey Energy’s Upper Big Branch Mine, the defense lawyer for company security director Hughie Elbert Stover raised an interesting question in his opening statement to the jury: Is prosecuting a security guard the best the federal government can do following the worst U.S. coal-mining disaster in nearly 40 years?

Stover lawyer Bill Wilmoth asked where the evidence is about what really caused that terrible explosion on April 5, 2010. He said that information seems to be locked in a closet somewhere, certainly not to to be heard of during this week’s criminal trial against his client. It was an interesting strategy, especially since Wilmoth had earlier tried to prevent any mention of the disaster during the Stover trial.

But it was also very timely — because as trial continues today in Beckley the United Mine Workers of America is doing its best to ensure that evidence about what really happened at Upper Big Branch gets out. Right now, top UMWA officials are in Charleston, briefing families of the 29 miners who died on the findings of the union’s own extensive investigation of the disaster. A press conference is planned for later today. We’ll have much more on their report after that press conference.

The union’s findings aren’t surprising:

It is the determination of the union that the sparking of the shearer bits and bit blocks, aided by missing and ineffective water sprays, a lack of water pressure and inadequate ventilation, ignited a pocket of methane at the tailgate near the longwall. the ignition traveled into the gob where it encountered an explosive methane-air mixture, resulting in an explosion. The explosive forces picked up and suspended float coal dust in the mine atmosphere in sufficient quantities to initiate a massive dust explosion.

How could something like this happen in this day and age?

The dangerous conditions that contributed to the explosion existed at the mine on a daily basis. These conditions, which represented gross violations of, mandatory health and safety standards, were not accidental. They were permitted to exist by a corporate management at Massey that created a culture that demanded production at any cost and tolerated a callous disregard for the health and safety of the miners employed at the operation.

The UMWA’s 154-page report supports previous findings from the Davitt McAteer team and preliminary results from MSHA, outlining major problems with the Upper Big Branch mine’s longwall shearer, serious violations of requirements for rock-dusting underground and significant and repeated failures to properly ventilate the huge Raleigh County mine.

But there are some interesting new things in the UMWA report as well:

— The union appears to make a much more specific allegation than either MSHA or McAteer have so far about a specific illegal change in mine ventilation its investigators believe led to the methane present in the longwall area and the gob, the fuel for the initial ignition and explosion.

— UMW officials included fascinating maps and descriptions in their report that show more clearly than I’ve seen before the massive size and scope of the explosion — along with a discussion of how the blast essentially circled around on itself, following the trail of coal dust and creating a growing path of death and destruction underground. The union noted, for example, that the blast traveled up the a former coal-transportation tunnel called the “Glory Hole”  and scorched the roof on an adjacent Massey mine.

— After the explosion, investigation teams found in the longwall area of the mine a methane monitor that appeared to be almost new — or certainly undamaged despite its location near the heart of the explosion. Union officials aren’t sure how it got there, or how it got to be so free of damage, dirt and dust. But they noted it was found near where it appears that a brattice cloth curtain was hung so that it would direct all airflow toward the sensor, diluting any methane at that point.

The UMWA titled its report, “Industrial Homicide,” and offered this explanation for that in the text of the document:

Massey Energy must be held accountable for the death of each of the 29 miners. Theirs is not a guilt of omission, but rather, based on the facts publicly available, the union believes that Massey Energy and its management were on notice of and recklessly tolerated mining conditions that were so egregious that the resulting disaster constituted a massive slaughter in the nature of an industrial homicide.

In a footnote, the union explained further:

“Industrial homicide” is not a specific criminal act and technically speaking is not one of the classes of homicide in either the state of West Virginia, where the tragedy occurred, or in the Commonwealth of Virginia, where both the company and the union headquarters are located. Nevertheless, there is evidence that the company’s conduct interfered with the proper performance of mine health and safety laws and regulations to such an extreme extent that the union believes that government would be able to prosecute company representatives under applicable criminal provisions for their roles in permitting the dangerous conditions on the UBB mine that killed 29 miners.

The report is not without criticism for both the U.S. Mine Safety and Health Administration and the state Office of Miners’ Health, Safety and Training, and it has this to say about politicians and lawmakers:

While knowing the causes of these types of disasters is important in trying to prevent them in the future, it is also important for lawmakers and regulators to admit that after so many coal mine tragedies, it is time to stop the rhetoric and take real action to protect miners’ health and safety.

In a cover letter with the union report, UMWA President Cecil Roberts and International Secretary-Treasuer Daniel Kane added:

Once again, those responsible for a mining disaster have tried to deflect blame onto others, while refusing to take responsibility for their own actions. And once again, the safety agencies have thrown a needless cloak of secrecy over the investigation into the disaster, hindering the ability of anyone to shine the full light of day on what happened and on those responsible.

And the union’s top recommendation:

Proper and immediate action should be taken to determine the depth of knowledge and extent of each person’s culpability regarding this matter … the union believes that in order for this to be effectively and fairly accomplished, a Grand Jury should be empaneled and subpoenas issued to at least the Massey management officials listed on pages 71 and 72 of this report.

Upon completion os the work of the Grand Jury, warrants and indictments should be handed down as appropriate. Criminal trials for those indicted should commence as soon as possible after the affected individuals are served.