Coal Tattoo

Merry Christmas from Coal Tattoo

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Hey folks … Coal Tattoo is going to hopefully be shut down for a while over the next two weeks for the holidays. I hope everyone has a happy and safe Christmas, and that there’s no major breaking news we have to worry about … Be good to each other and check back here after the first of the new year for more coal news and comments.

USA Today: Prosecute rogue coal operators

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An editorial in USA Today asks:

Even as federal officials were heralding this month’s $209 million settlement in one of the worst U.S. mining disasters in history, the families of the 29 men killed in that explosion were wondering: Isn’t anyone going to be prosecuted for our loved ones’ deaths?

The newspaper’s answer?

Good question. At least for now, the answer is no — a sad and unsatisfactory climax after nearly two years of criminal investigations, along with two damning reports that found mine owner Massey Energy put profits above safety and was so lax that it laid the groundwork for what one study called a “preventable” explosion at West Virginia’s Upper Big Branch Mine.

As I mentioned before, given the MSHA investigation report’s direct linking of the mine disaster to Massey’s policy for advance notice of government inspections, it’s probably unfair to say that neither of the two criminal cases brought so far by U.S. Attorney Booth Goodwin and his team had nothing to do with the April 5, 2010, explosion that killed 29 miners.  Longtime Upper Big Branch security director Hughie Elbert Stover was convinced of lying to investigators and trying to destroy evidence about this Massey policy, which MSHA’s report said directly contributed to the disaster by covering up some serious safety problems at the mine.

Given the extent of the safety problems that MSHA did find at Upper Big Branch, though, it remains unclear why agency officials didn’t do more to put a stop to the violations. It’s clear that MSHA didn’t use every tool in its toolbox prior to April 5, 2010 (see previous posts here and here). It’s all well and good for MSHA to tout its use of “flagrant penalties” at Upper Big Branch after 29 miners got blown up … why wasn’t this authority used before the disaster?

In its editorial, USA Today repeats the call for tougher criminal sanctions in the nation’s mine safety laws, to make it easier to hold executive responsible for serious and repeated violations. The newspaper concludes:

Attorney General Eric Holder and U.S. Attorney Booth Goodwin, of the Southern District of West Virginia, have pledged to continue investigating individuals associated with the Upper Big Branch tragedy. Let’s hope that their pledges are more meaningful than the empty promises of safe mines that families are so used to hearing from Congress and the industry.

For too long, safety-flouting companies have been able to buy their way out of trouble.

Not surprisingly, USA Today makes no mention of the growing evidence of MSHA’s own failings at Upper Big Branch — not a word from the newspaper’s editors about what independent investigator Davitt McAteer described as “proof positive that the agency failed its duty as the watchdog for coal miners.”

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In this photo taken Wednesday, Dec. 14, 2011, pigeons fly past as the stacks of Dominion’s power plant tower over a nearby neighborhood in Salem, Mass. More than 32 mostly coal-fired power plants in a dozen states will be forced to shut down and another 34 might have to close because of new federal air pollution regulations, according to an Associated Press survey. Together, those plants produce enough electricity for more than 21 million households, but their demise is unlikely to cause homes to go dark.  (AP Photo/Charles Krupa)

We’re still waiting this morning for the U.S. Environmental Protection Agency to announce its final Mercury and Air Toxics Standards, or MATS, but in the meantime, Dina Cappiello at The Associated Press had a lengthy story that reports:

More than 32 mostly coal-fired power plants in a dozen states will be forced to shut down and an additional 36 might have to close because of new federal air pollution regulations, according to an Associated Press survey.

Together, those plants — some of the oldest and dirtiest in the country — produce enough electricity for more than 22 million households, the AP survey found. But their demise probably won’t cause homes to go dark.

The fallout will be most acute for the towns where power plant smokestacks long have cast a shadow. Tax revenues and jobs will be lost, and investments in new power plants and pollution controls probably will raise electric bills.

The survey, based on interviews with 55 power plant operators and on the Environmental Protection Agency’s own prediction of power plant retirements, rebuts claims by critics of the regulations and some electric power producers.

They have predicted the EPA rules will kill coal as a power source and force blackouts, basing their argument on estimates from energy analysts, congressional offices, government regulators, unions and interest groups. Many of those studies inflate the number of plants retiring by counting those shutting down for reasons other than the two EPA rules.

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House GOP tries to end effort to ‘End Black Lung’

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UPDATED: As we reported in Saturday’s Gazette-Mail, this little rider made it into the spending bill …

We’ve heard House Republicans talk quite a bit about how much they care about coal miners’ jobs … but what about those coal miners’ lives?

You have to wonder, when you see the GOP leadership sticking riders into appropriations bills like this one, described in a summary of a funding bill for the Department of Labor:

A prohibition on the implementation or enforcement of DOL’s “coal dust” rule until an independent assessment of the integrity of the data and methodology behind the rule is conducted.

That’s right, the majority party’s proposal for funding MSHA (see pages 35-36) would keep the agency from implementing the key provision of its campaign to End Black Lung, a deadly disease that claimed the lives of 10,000 coal miners in the last decade.

The GOP legislation would block MSHA from instituting a tougher coal-dust standard until the U.S. Government Accountability Office “evaluates the completeness of MSHA’s data collection and sampling, to include an analysis of whether such data supports current trends of the incidence of lung disease arising from occupational exposure to respirable coal mine dust across working underground coal miners.”

Never mind the peer-reviewed studies that show a resurgence of black lung in parts of the nation’s coalfields.  Never mind the data showing that miners working under what are currently legal levels of coal dust are developing black lung. And forget about the fact that public health and worker health experts have for years been urging MSHA to do exactly what agency chief Joe Main is trying to do — tighten the legal limit for coal dust.

I don’t know if there’s a war on coal, but you have to wonder if there’s really  a war on coal miners.

This just in:

The United Mine Workers of America (UMWA) announced today that it has reached collective bargaining agreements with Alpha Natural Resources covering five Central Appalachia coal preparation plants which had previously been owned by Massey Energy. Workers at the plants had been working under the provisions of a previous contract that expired in 1998.

“This is a very good day for these workers and their families,” UMWA International President Cecil E. Roberts said. “They will get a substantial initial raise, the first they’ve had since 1998. They will get annual wage increases for the life of the agreement. They will get a $1,000 bonus. They will get shift differentials, a clothing allowance, sickness and accident benefits and the best quality health care benefits.

“I commend the workers at these plants for persevering so long and sticking with the UMWA in the face of constant attacks by the previous ownership,” Roberts said. “Massey simply refused to take any steps to reach a fair agreement as long as these workers stayed in the UMWA. But the workers stayed united and it ultimately paid off for them.

“I also want to recognize the fresh approach Alpha is taking with respect to recognizing the value of these employees,” Roberts said. “The UMWA is working to build a good relationship with Alpha at these and other operations where we represent the workers. We appreciate the company’s willingness to recognize and address the long-standing inequities the workers at these preparation plants were dealing with.”

The agreement covers some 145 workers at the following locations: the Bandmill preparation plant in Logan County, W. Va.; the Long Fork preparation plant in Pike County, Ky.; the Goals preparation plant in Raleigh County, W. Va.; the Chesterfield preparation plant operated by Alpha subsidiary Omar Coal Co. in Boone County, W. Va.; and the Power Mountain preparation plant in Nicholas County, W. Va.

The 5-1/2-year agreement goes into effect Jan. 1, 2012, and will continue until June 30, 2017.

Piles of coal are shown at NRG Energy’s W.A. Parish Electric Generating Station Wednesday, March 16, 2011, in Thompsons, Texas. The plant, which operates natural gas and coal-fired units, is one of the largest power plants in the United States. The U.S. Environmental Protection Agency will begin regulating mercury emissions from coal-fired power plants for the first time, the latest in a string of new regulations that has Republicans bent on reining in the federal body. (AP Photo)

 

It’s coming down to the wire for the U.S. Environmental Protection Agency to finalize the first-ever limits on the emissions of toxic air pollutants from coal-fired power plants.  NPR’s Elizabeth Shogren explains:

More than 20 years ago, Congress ordered the Environmental Protection Agency to regulate toxic air pollution. It’s done that for most industries, but not the biggest polluters — coal and oil-burning power plants.

The EPA now plans to change that later this week, by setting new rules to limit mercury and other harmful pollution from power plants.

… When President George W. Bush took office, the power industry persuaded his EPA to adopt soft limits on mercury, but federal courts said that regulation was too weak, so it never went into effect.

Now, the court has set a deadline of Friday for the EPA to issue a new rule. The language the EPA wants would require quick action, stating that within three years, power plants that burn coal would have to cut more than 90 percent of the mercury from their exhaust.

They’d also have to slash arsenic, acid gases and other pollutants that cause premature deaths, asthma attacks and cancer. But even now, some power companies have been furiously fighting the EPA’s rule — especially its deadlines.

We’ve written about these rules — and the backlash against them by the local powers that be in coal country —  before here, here and here.  Earlier this week, the State Journal’s great reporter, Pam Kasey, had a local update on the story. Unfortunately, the headline probably overstated the case, perhaps leading people to again not understand that these AEP plants in West Virginia were going to close anyway, with or without the EPA rule. Pam’s story explains the situation more clearly:

In West Virginia, AEP has said it would shut down Appalachian Power Co.’s 1,105-MW Philip Sporn plant in Mason County and 439-MW Kanawha River plant in Kanawha County, along with Ohio Power Co.’s 713-MW Kammer plant in Marshall County. The plants represent more than 2,200 megawatts of coal-fired generating capacity in the state and about 240 jobs.

They accounted for about 7 percent of coal burned for power in the state in 2010 — not all of which is West Virginia coal. However, because they are old and inefficient, they accounted for only about one-tenth of one percent of West Virginia generation, according to the Energy Information Administration.

Asked whether these old plants wouldn’t be closing anyway, Appalachian Power Co. spokeswoman Jeri Matheney said they would, but not all together and so quickly.

And Pam did something much of the rest of the West Virginia media refuse to do … She explained the public health benefits of EPA’s proposal:

Mercury is a neurotoxin to which fetuses and children are particularly susceptible, while other targeted emissions cause cancer, chronic and acute respiratory disorders, and other illnesses.

The rule will require expensive upgrades to or installations of new emissions controls by Jan. 1, 2015, at an estimated 1,200 coal-fired units and 150 oil-fired units at 525 power plants.

When the agency issued its proposed rule in March, it estimated the 2016 cost of compliance at $10.9 billion. The 2016 benefits — realized primarily through 6,800 to 17,000 premature deaths avoided but also through the avoidance of 11,000 non-fatal heart attacks, more than 300,000 cases of respiratory illness including aggravated asthma and acute and chronic bronchitis, and 850,000 days of missed work — came to $59 billion to $140 billion.

My buddy Jim Bruggers at the Courier-Journal has recently reported:

Environmentalists are getting word that the White House may relax the EPA’s planned new rules on mercury and other toxic chemicals.

“We are informed reliably that the White House Office of Management and Budget, at the behest of the coal-burning electric power industry, is now pushing the EPA to weaken its mercury pollution control requirements in its upcoming toxic pollution rule for power plants,” reports longtime clean air advocate Frank O’Donnell. “Power companies could emit almost 20 percent more mercury under the dirty power industry scheme being promoted by OMB bean counters.”

It’s worth remembering that, back in September, President Obama personally blocked EPA from implementing new regulations to reduce smog …

I’ve been reading and re-reading the slew of prepared statements that West Virginia’s political leaders issued to comment on the $209.5 million Upper Big Branch Mine Disaster settlement U.S. Attorney Booth Goodwin and his staff worked out with Alpha Natural Resources. And there’s something that’s missing that I can’t get out of my head.

Where are the calls for the rest of the coal industry to follow Alpha’s lead on installing important new coal-dust meters and ventilation monitors that could help prevent the next mining disaster?

When he announced the settlement, U.S. Attorney Goodwin made one of his goals clear:

Collectively, the requirements will set a new standard for what can and should be done to protect miners. My hope is that Alpha’s adoption of the measures contained in this resolution will give the rest of the industry a strong push to follow suit.

The only reaction I’ve seen from the National Mining Association was this comment last week from their spokeswoman, Carol Raulston:

Many of NMA’s members, including Alpha, are already investing in safety efforts and equipment not specified/required by MSHA. We have not read the agreement between Alpha and the U.S. Attorney, so I cannot comment on any specific provision, including the equipment stipulations. As such, I am reluctant to speculate about future actions of NMA members as this time.

Maybe that’s because political leaders are letting the industry off so easy. The closest thing I saw for a call for action by the rest of the industry was this from Sen. Joe Manchin:

Even though Alpha did not own the Upper Big Branch mine at the time of the disaster, I applaud the company for taking responsibility for both the mistakes that were made and for investing in the future of mining to help prevent another tragedy like this from ever taking place. I encourage them – and all our mining companies – to continue to take steps to protect our miners.

Not exactly a very strong push to spread these important technologies beyond Alpha, huh? The only really strong comments I saw in this direction came from independent investigator Davitt McAteer:

The Settlement announced this morning adopts many of the recommendations which we set out in our report, I think what is important especially in the area of technology is that it at the very least puts Alpha in the position of adopting new safety and health technology and avoiding the federal regulatory quagmire which holds up or blocks entirely advances in the technology of detection and disaster prevention. Hopefully others in the coal industry will adopt a similar progressive approach to mine safety technology adoption rather than taking the position of doing nothing unless the federal or state government require it. In the past the industry has relegated safety and health innovations to a low priority hopefully this agreement will change that priority.

There’s a new report out this afternoon from the good folks over at the West Virginia Center for Budget and Policy, examining our state’s severance tax policies and their role in industry activities and their potential role in making a brighter future for residents. Their conclusion:

West Virginia’s natural resources are one of its greatest assets and an important source of wealth. But the extraction of those resources can come at a heavy price, creating stress on the environment, infrastructure, and local communities. Like many other natural resource-rich states, West Virginia levies a severance tax on the extraction of its natural resources. The revenue from the severance tax allows the state to capture natural resource wealth and use it for important purposes like education, infrastructure, health care, and countless other priorities for the state, as well as providing a way for the state to bear the costs imposed by natural resource extraction.

Importantly, the report explains — as we’ve discussed before here — that effective severance tax rates in West Virginia do not put the state at a disadvantage in trying to attract industry and jobs:

While the severance tax is levied on natural resource production in the state, evidence from other states suggest that the tax is exported and paid by out-of-state consumers. This allows West Virginians to enjoy the benefits provided by the revenue without bearing the actual burden of the tax. In addition, research shows that the severance tax is not a large burden on industry, having little effect on production and industry location.

The new report explains:

Historically, coal has been the dominant source of severance tax revenue in West Virginia. However, West Virginia’s coal production is projected to sharply decline in the coming years, decreasing the amount of revenue brought in by the coal severance tax. Fortunately, the decline of coal in West Virginia corresponds with a boom in natural gas production. In the coming years, natural gas will grow from a relatively minor source of severance tax revenue to the state’s largest source. In order for West Virginia to benefit more fully from its natural resources, the state should consider policy changes surrounding its severance tax.

Among the recommendations:

— Consider scaling back severance tax credits, limits, and deductions. West Virginia’s effective severance tax rate is far below the statutory rate of five percent due to a number of credits, limits, and deductions available against the severance tax. In particular, the reduced rate for thin-seam coal production is rapidly growing in size and value. The effectiveness of these policies should be examined to determine if the goals of the policies are being meant and if the cost is acceptable. This is more important as tax policies like the reduced rate for thin-seam coal grow more expensive even as coal severance tax revenue declines and coal prices escalate.

— Encourage local governments to make a better effort to diversify their economies. Currently, most severance tax revenue distributed to local governments is used to fill budgets and provide basic services. The new allocation for coal-producing counties is a step in the right direction, with its funds directed towards economic development. Local governments should do more than use their share to pay for basic local government purposes. Local governments should use their revenue share to make investments that lead to greater economic diversification and growth, and should break their dependence on a volatile revenue source for the provision of basic services.

— Create a permanent trust fund. The coming boom in natural gas production provides West Virginia with an opportunity to convert its depleting natural resources into a permanent source of wealth. West Virginia should join states like Alaska, Montana, New Mexico, North Dakota, Utah, and Wyoming and establish a permanent trust fund based on a portion of severance tax revenue. In fact, the state could actually raise the effective rate of the severance tax in order to finance the trust fund with little risk of affecting the state’s natural resource industries.

Photo of Hobet 21 mountaintop removal mining complex, by Vivian Stockman, Ohio Valley Environmental Coalition

A major new study out today in one of the most respected scientific journals around confirms the pervasive and irreversible impacts of mountaintop removal coal mining here in Appalachia. The study is called Cumulative impacts of mountaintop mining on an Appalachian watershed, and it appears online today in the Early Edition of the Proceedings of the National Academy of Sciences.

The conclusion by Duke University researcher Ty Lindberg and colleagues, including Emily Bernhardt:

Our results demonstrate the cumulative impact of multiple mines within a single catchment and provide evidence that mines reclaimed nearly two decades ago continue to contribute significantly to water quality degradation within this watershed.

As explained in a Duke news release:

To assess the cumulative impact of the more than 100 permitted discharge outlets draining approximately 28 square kilometers of active and reclaimed mountaintop coal mines in the Upper Mud watershed, the Duke researchers collected 152 sets of samples from 23 sites – including two sites upstream of any active or reclaimed surface mines – between May and December 2010. They sampled for electrical conductivity, a measure of salinity and for concentrations of major ions and trace elements derived from coal or its matrix rock.

The Upper Mud flows through sparsely populated sections of Boone and Lincoln counties in southern West Virginia as a headwater stream until reaching its impoundment in the Mud River reservoir 25 kilometers downstream. For about 10 kilometers, the river passes through the Hobet 21 surface mining complex, which has been active since the 1970s and is among the largest in the Appalachian coalfields region.

Here’s a figure they used in the paper:

Map of study area depicting Upper Mud River and associated tributaries with aerial photo on right. Sampling sites consisted of 15 mainstem (circles)
and eight named tributary locations (triangles). Sites 1 and 2 were located upstream of current and historic MTM activity. The remaining sites were chosen so as to bracket each confluence of the Upper Mud River and an MTM-affected tributary. Marker color denotes median conductivity level in mainstem during survey (green <300, orange 301 to 500, red 501 to 1,000, and dark red >1;000 μS cm−1). Brown shaded areas reflect surface mining with darker area representing reclaimed mines. Aerial photo on right shows location of 105 active surface-mining-related outlets within the watershed that are regulated through eight NPDES permits. Inset of US mid-Atlantic states shows Appalachian coalfield region as gray shaded area with relative location of study site in red (not to scale).
2 of

Their findings:

All conductivity measurements taken downstream of mine discharge outlets exceeded levels known to be harmful to aquatic life, said Richard Di Giulio, professor of environmental toxicology. At the two sampling sites upstream of any mines, conductivity levels were within an acceptable range. Concentrations of selenium, a known fish toxin, followed a similar trend, Di Giulio said. The researchers also observed deformities typical of selenium exposure in fish collected from downstream waters.

Co-author Avner Vengosh, professor of geochemistry and water quality, said:

As eight separate mining-impacted tributaries flowed into the Upper Mud, conductivity and concentrations of selenium, sulfate, magnesium and other inorganic solutes increased proportionately. Nearly 90 percent of the variation in trace elements and salinity could be explained by the amount of upstream surface mining.

According to the news release:

The Duke team selected the Upper Mud watershed for their field survey because water-quality impacts from other potential sources are largely absent. Historically, surface rather than underground mining has been the dominant form of coal extraction in the Upper Mud’s river basin, and there are very few people now living within the Hobet mine’s permitted boundary. This helped to minimize other factors that might account for changes in water quality.

Emily Bernhardt, associate professor of biogeochemistry, said:

This is a remarkably clean dataset and that’s why it’s so powerful. We see these incredibly strong patterns, which previously have not been well established.

Past studies have shown that individual mines profoundly impact stream water quality, biological community structure and ecosystem function immediately downstream of valley fills, but empirical data on the cumulative impacts of multiple mining operations on larger downstream rivers has been lacking, she said, adding:

Individual permitting decisions are typically made without consideration of the extent of historic mining impacts already occurring within a watershed. Our survey helps fill that gap.

This just in from the Sierra Club:

Today, a coalition of conservation and environmental groups completed a legal settlement with Alpha Natural Resources over high levels of selenium output at several of the company’s West Virginia coal mines. The settlement requires that the coal mining company – formerly Massey Energy — begin construction of selenium treatment facilities with an estimated construction cost of over $50 million, and to pay penalties of $4.5 million. The suit was brought by the West Virginia Chapter of the Sierra Club, West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Coal River Mountain Watch.

“This settlement will require Alpha to pay their due and start addressing the damage done to West Virginia waterways,” said Jim Sconyers, Chair of the West Virginia Chapter of the Sierra Club. “This settlement reflects another step in our fight to ensure that coal companies act responsibly in regards to the health of surrounding communities and West Virginia’s wild lands.”

The settlement requires Alpha to immediately begin installing treatment technology to bring selenium discharges within acceptable levels. The proposed date of final compliance for the settlement is July 1, 2014 for all mines affected to ensure Alpha has time to install treatment facilities and make any necessary adjustments. Alpha will be subject to significant penalties for any violations that occur after the compliance date for each source of pollution. The vast majority of the penalties will go to the West Virginia Land Trust.

“This settlement, which follows recent agreements with Arch Coal and Patriot Coal, proves that coal mines in West Virginia have the ability to treat their selenium problems,” said Dianne Bady with the Ohio Valley Environmental Coalition. “Now it’s time for all coal companies to take similar actions.”

“Although treatment may be sufficient to address these existing selenium problems, ultimately the industry and regulators need to recognize that it’s not appropriate to mine coal seams that are high in selenium,” said Cindy Rank with the West Virginia Highlands Conservancy.

Selenium, a toxic element that causes reproductive failure and deformities in fish and other forms of aquatic life, is discharged from many surface coal-mining operations across Appalachia. At very high levels, selenium can pose a risk to human health, causing hair and fingernail loss, kidney and liver damage, and damage to the nervous and circulatory systems.

“The West Virginia DEP should be ashamed that citizen groups are doing what the agency should have done years ago,” said Vernon Haltom, executive director of Coal River Mountain Watch. “Instead, it’s left to citizen groups to take action to protect West Virginia’s streams and communities.”

The settlement was lodged with the U.S. District Court for the Southern District of West Virginia. The U.S. government will have an opportunity to review the settlement before its terms take effect.

More reaction and analysis continued over the weekend about U.S. Attorney Booth Goodwin’s decision to settle potential criminal charges against Massey Energy — the company, not its executives or employees — related to the Upper Big Branch Mine Disaster  in a $209.5 million deal with Massey’s new owner, Alpha Natural Resources.

We ran a lengthy story headlined, Upper Big Branch deal aimed at preventing future disasters, in Sunday’s paper, reporting, among other things:

U.S. Attorney Booth Goodwin crafted the deal in an effort to push Alpha — and the rest of the coal industry — toward reforms aimed at avoiding a repeat of the April 5, 2010, explosion that killed 29 miners in the worst U.S. coal-mining disaster in a generation.

The key, according to Goodwin and his team, is the $80 million in safety improvements are specifically designed to address root causes of the Upper Big Branch explosion, such as poor ventilation practices and most specifically doing a better job cleaning up highly explosive coal dust that can turn a minor methane ignition into a horrific blast like the one at UBB.

“This started out by looking at what we could require them to do to do these things better,” said Assistant U.S. Attorney Steve Ruby, a lead prosecutor in Goodwin’s ongoing criminal probe of Upper Big Branch and the key architect of the Alpha settlement.

We quoted several supporters and several critics of the settlement, including David Uhlmann, a former federal prosecutor who now teaches law at the University of Michigan. Among the more significant reactions to the Goodwin-Alpha settlement came from Uhlmann, who wrote an analysis that appeared in the New York Times. The piece is headlined For 29 Dead Miners, No Justice, and it says:

… What jumped off the pages [OF THE MSHA REPORT] for me, as a former federal prosecutor, was the revelation that Massey had kept two sets of books at the mine: one for internal use, which recorded hazards, and a second for Mine Safety and Health Administration inspectors, which did not. In addition, Massey routinely gave its facilities advance notice of inspections, which is a crime under federal law, and intimidated its workers so that they would not report safety and health violations.

Based on the Labor Department’s investigation, the Justice Department could have criminally prosecuted Massey under the Mine Safety and Health Act for the violations that caused the explosion. Prosecutors also could have charged the company with conspiracy and obstruction of justice for the ways it thwarted regulation.

Instead, on the same day the devastating report was released, the Justice Department announced that it would not criminally prosecute Massey. The news release issued by the United States attorney misleadingly described its nonprosecution agreement with Massey’s new owners as “the largest ever criminal resolution in a mining investigation.”

Let’s be clear: this is not a criminal resolution. Massey will not be charged with any crimes and will not plead guilty before a federal judge. Nor will there be a sentencing hearing where Massey apologizes to the families of the victims and is punished for its crimes.

The piece continues:

The deal with Massey continues a disturbing trend whereby corporations can avoid criminal prosecution by entering deferred prosecution or nonprosecution agreements. Often the terms of these agreements are no better than what could have been achieved in a criminal case; worse, they create the appearance that justice can be bought.

Moreover, there is less to this settlement than meets the eye. The $209 million settlement requires payment of $35 million in previously assessed administrative penalties, but that sum includes just $10.8 million for the Upper Big Branch Mine tragedy. The remaining $174 million is likely to be tax deductible, including $80 million for investments in safety and infrastructure at Massey mines and an additional $48 million to establish a mine health and safety trust fund.

And:

We should not underestimate, however, the difficulty of prosecuting high-ranking officials in large corporations. This case may be an exception, but senior corporate officers rarely have sufficient personal involvement to be charged with crimes. To reach the boardroom, where policies are formed that can lead to tragedy, we must be willing to hold corporations criminally responsible.

During my 17 years at the Justice Department, we prosecuted corporations criminally in hundreds of cases that, while serious, did not involve the tragic loss of life at the Upper Big Branch Mine. The Justice Department did not live up to its name in agreeing not to prosecute Massey for its crimes.

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Never again: Can Upper Big Branch be the last one?

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Earlier this week, I left the mine academy down in Beckley the same way I left West Virginia Wesleyan University and Chief Logan State Park after Sago and Aracoma a few years ago — with a huge binder under my arm, full of mine maps, charts and violations, a dry and complicated report telling in bureaucratic language how more coal miners met an early death deep under the ground.

Frankly, I felt a little guilty, like I was just playing my role in this little play. I’m the reporter, who comes in after the disaster to expose corporate negligence and government bungling, and to give the public a glimpse of the terrible toll the latest disaster to end all disasters took on more West Virginia families.

Come on, you all know the drill by now, given the string of disasters over the last five years: Sago, Aracoma, Kentucky Darby, Crandall Canyon and Upper Big Branch. First, there’s the waiting, with families, politicians and the media hoping and praying for survivors. Then there are the funerals, followed by investigations and congressional hearings. Then, we have events like this week — reports are released, settlements signed, maybe a few minor criminal charges are brought. At some point, there might be an “internal review” that explains in arcane double-speak just confusing enough for no one to understand it how the regulators we trust to keep an eye on the coal industry failed the miners.

I’m reminded of the words of the late Sen. Robert C. Byrd:

First, the disaster. Then the weeping. Then the outrage. And we are all too familiar with what comes next. After a few weeks, when the cameras are gone, when the ink on the editorials has dried, everything returns to business as usual. The health and the safety of America’s coal miners, the men and women upon whom the Nation depends so much, is once again forgotten until the next disaster. But not this time.

I don’t pretend to have the slightest idea how the families of the miners feel. Imagine having your husband, son, brother or father taken from you suddenly, in a terrifically violent way. And then you not only have to live with that loss, and face the burden of holidays, birthdays, anniversaries — all the horrors the simple calendar creates when you are grieving — but you have to keep going back to meetings and briefings, and getting cameras, microphones and notepads stuck in your face. It must be awful.

But it’s hard to escape the reality that those families are the only ones who are really living this nightmare. MSHA chief Joe Main has talked many times about how for the families, a mine disaster is never really over. Joe knows that no matter how much others of us care about mine safety, we just don’t experience this whole thing in anywhere remotely approaching what the families go through.

After every mine disaster down through history, we hear promises about never letting it happen again. Politicians make those promises. Coal industry officials sometimes make them. So do regulators. Editorial writers sometimes demand action to ensure the slaughter stops. But it goes on.

I wonder if one reason it goes on isn’t that the whole spectacle, the whole little plot that plays out, hasn’t become so familiar that — whether we want to or whether we even realize it — we all accept it as a fact of life in a world where we want cheap coal to make cheap electricity and cheap steel.

Even Joe Main, who has worked his whole adult life to make coal mining safer and healthier for workers, seemed a little bit too accepting, as this passage from a piece by NPR’s Howard Berkes makes clear:

Assistant Secretary of Labor Joe Main says MSHA has been investigating itself since 1989.

“I can guarantee you when you go back and look at those reports, there have been a lot of problems that have been found,” Main says. “And I think when we issue our [internal] report, it’s going be one that’s going to identify shortcomings that we need to address.”

And then there’s MSHA lawyer Derek Baxter, who shut down questions from independent investigator Davitt McAteer’s team about the previous methane incidents at Upper Big Branch, and what MSHA officials did — or didn’t do — about them. Exactly how were Baxter’s actions helping to improve mine safety, helping to make UBB the last disaster? Whose interest was he serving there?

I asked some lawmakers about this whole business with MSHA’s inaction on the prior methane problems, and the effort to cut off questions about it, and the responses didn’t appear to reflect the sort of outrage you might expect, given that the MSHA report basically makes clear that agency officials played a role in allowing this disaster to happen in the first place.

Rep. George Miller, D-Calif., said:

We expect that the issues raised about these technical support documents will be fully and directly addressed by MSHA’s internal review. If there was any miscommunication or failure to act, we expect MSHA to take immediate corrective action. While we understand that this particular internal review will be subject to an independent review by NIOSH, there is a need to mandate fully independent investigations of all major mine disasters as safety experts like Davitt McAteer have recommended, and that is included in Rep. Miller’s legislation.

And Rep. Nick J. Rahall, D-W.Va., who lost 29 of his constituents at Upper Big Branch, said:

Of course we know that there were problems with MSHA’s oversight of the UBB Mine, and I fully expect that when MSHA’s internal report is released next month that will be made abundantly clear. I must note that I have called for the establishment of an independent panel to conduct such reviews in the future to help ensure their accuracy and the confidence of all who count on MSHA to keep our miners safe. But none of that should distract our attention from the fact that Massey Energy knowingly, willingly broke the law, purposely deceiving MSHA and putting the lives of its own miners at risk.

The closest we got to outrage came from House Labor Committee Chairman — and Republican — John Kline:

The report released this week documents how Massey Energy’s reckless disregard for critical safety protections resulted in the death of 29 miners. The families of the Upper Big Branch miners deserve the whole story of what went wrong. That is why I am interested in the findings of MSHA’s internal audit, which should help answer whether enforcement lapses played a role in this devastating disaster. If MSHA failed to act on critical information that may have improved the safety of those miners, the people of West Virginia deserve to know why.

Of course, there might be a bit of partisan politics going on here, what with a Democrat in the White House and a former labor union official running MSHA. It didn’t take long for the Democratic Congressional Campaign Committee to find a way to use the MSHA Upper Big Branch report as a partisan issue. They sent out a quick press release today to attack Rep. David McKinley:

Massey Energy’s parent company has agreed to pay a record $209 million settlement related to the Upper Big Branch Mine disaster, but Congressman David McKinley (WV-01) is still not supporting a bill to strengthen penalties for violating mine-safety laws. The Robert Byrd Mine and Workplace Safety and Health Act has the support of Senator Joe Manchin, Senator Jay Rockefeller, and Congressman Nick Rahall. In light of the recent settlement, will Congressman McKinley continue to oppose these common sense safety measures that could save lives?

Congressman McKinley is the only Member of Congress to receive a contribution from Massey PAC this year. He is also a past recipient of the maximum legal contribution from Don Blankenship, the former Massey Energy CEO that many blame for the 2010 mine disaster. Is Congressman McKinley opposing the bill to help his big donors?

“Thousands of West Virginians go to work in the mines every day trying to put food on the table in this tough economy, but it is clear that Congressman McKinley is not looking out for their safety and well being,” said Adam Hodge of the Democratic Congressional Campaign Committee. “Is Congressman McKinley jeopardizing the lives of his own constituents to protect his sugar daddy, Don Blankenship?”

Oddly, there was no mention in there of whether Democrats in Congress ought to be asking tougher questions of their friends at the Labor Department and MSHA.

Perhaps this partisan political stuff is all part of the play, too, though it’s true that Rep. Miller has proposed legislation that would do much to improve mine safety in this country, and the Republican leadership in the House has ensured it hasn’t really gone anywhere.

And what about our good friend, U.S. Attorney Booth Goodwin and his lead Upper Big Branch investigator, Steve Ruby? Their settlement with Alpha includes strong provisions to improve mine safety, and it doesn’t stop them from bringing charges in the other crimes they say they’ve found at Upper Big Branch. We’ll have to wait and see how much of that is just talk, or whether their probe reaches higher up than an hourly miner who pretended to have a foreman’s card and a security director. WVU law professor Pat McGinley, a member of Davitt McAteer’s independent team, says serious charges against top management is a key thing to stopping this sort of tragedy:

In the past mine disasters like Buffalo Creek, Monongah and Farmington netted zero criminal prosecutions of the corporations or individual managers. As significant as this monetary settlement may be, the impact of losing a huge sum of money pales in comparison to the deterrence that criminal prosecution and jail time would provide.

I’m confident that the group of highly professional, dedicated prosecutors who made the monetary settlement possible will continue to pursue every lead. They need to, and I believe they will, bring to justice any and all Massey corporate managers who they find have engaged in criminal conduct leading to the horrendous deaths of 29 UBB miners.

Drunk drivers are required to do mandatory jail time. Coal company managers and executives whose willful conduct causes the death of even one coal miner need to be held criminally accountable and if criminal prosecution and jail time becomes a real possibility for those corporate officials who place profits above miners’ lives – I can guarantee that the nation’s coal mines will quickly become significantly safer.

Are more prosecutions the answer? Most experts agree they’re part of it … but so are lots of other things — Things like an investigation that really gets to the truth of any culpability by anyone either at Massey or the government, things like improvements to mine safety laws and regulations, more and better trained inspectors, newer technology, and on and on and on.

But perhaps the biggest secret to making Upper Big Branch be the last mine disaster is for everyone involved not to, as Sen. Byrd said, return to business as usual — for everyone who cares about mine safety, from politicians to mining engineers and newspaper reporters — to make ourselves live with this every day, like those 29 families who lost someone on April 5, 2010.

Following up on yesterday’s Coal Tattoo post, Why didn’t MSHA prevent the Upper Big Branch Mine Disaster, we published a story in our print edition this morning with more details about the federal agency’s failure to protect Massey Energy miners from the clear and well-understood dangers of methane leakage from the floor of the Raleigh County mine.

Among other things, the story contained new information from a previously undisclosed transcript of testimony by Bob Hardman, who was MSHA’s Southern West Virginia district manager at the time of the April 5, 2010, explosion that killed 29 miners. Among the more bizarre revelations was that Hardman claimed to have started a project to examine the potential for other mines having similar methane leakages — but MSHA claims to have no records about such an effort.

MSHA hasn’t formally released the Hardman transcript, but the agency did post on its website on Tuesday the transcript of testimony of longtime MSHA employee Steve Gigliotti, who had been acting district manager and was listed as the recipient of one of the two key methane outburst memos that outlined this problem and made recommendations for a fix.

Some readers may recall that Gigliotti was originally appointed by MSHA to its “internal review team” to investigate the agency’s actions — and inactions — at Upper Big Branch.  But just days after we broke news of the earlier methane incidents in 2003 and 2004, MSHA removed him from that team “to avoid the potential for a conflict of interest.”

Well, a reading of Gigliotti’s testimony is certainly interesting …

First, Gigliotti reveals that top MSHA officials at agency headquarters in Arlington, Va., were talking about the earlier incidents — and worrying about what MSHA might have done or not done about them — long before someone slipped the methane outburst memos under Bob Hardman’s door on May 21, 2010. During a previously confidential interview on June 25, 2010, Gigliotti told investigators, when asked about the memos:

… The first time I saw it was after the explosion at Upper Big Branch in April of this year. Charlie Thomas sent an e-mail …

Gigliotti reveals that Charlie Thomas was — and is — acting deputy administrator for MSHA’s coal division, making him to top aide to coal administrator Kevin Stricklin. Gigliotti continued:

… There were a bunch of e-mails flying around, but I remember Charlie sending it. But it was after the explosion. That the first time I saw it … Right after the explosion, you know, a couple days after. So you know, within a week or two, something like that.

Now, keep in mind. Upper Big Branch blew up on April 5, 2010. Top MSHA officials were talking about these previous incidents within days of that happening. Bob Hardman, the local district manager, testified someone stuck the memos under his door on May 21. Hardman, who didn’t come to the district until August 2006, testified that he hadn’t heard about the previous methane incidents until he found them that morning. Hardman was first interviewed by the investigation team on May 27.

It’s not clear when Gigliotti was appointed to the internal review team, but the transcript makes it sound like top MSHA officials had to have known about Gigliotti’s involvement in the earlier incident at the time they appointed him — and Gigliotti himself told investigators he didn’t understand why he was taken off the internal review team. He describes getting that news from Sticklin:

… He told me that you’re going to have to … we’re going to have to remove you from the Internal Review Team, because I was here six years ago and my name showed up on this report. And I was kind of in disbelief, and I sent him an e-mail and said, I was already gone by the time the report even hit my desk. I was gone five — you know — and he said, well, we cannot — you know, I don’t remember his exact words, but we have to … it’s so sensitive a situation because, you know, MSHA is investigating itself, and it’s controversy right there. And to have you — for you to get interviewed about this report or your time at — when you were down here, it wouldn’t be good that you would be a signatory on the Internal Review Report, so we have to move you off.

To be clear: Gigliotti was only acting district manager for a short while, from June 3, 2004, until July 10, 2004. He was not acting district manager when the 2004 incident occurred, back in February, and he had left by the time the memo hit the district manager’s desk on July 15, 2004.

Now, this is where things get really interesting … Gigliotti continues his testimony:

And in that same conversation [Stricklin], he told me that he spoke to the one geologist that was — he may have — I think he wrote the March report, I think, Sandin Phillipson … and Sandin said there’s a chance — I don’t know his exact words, but he said something like you can draw a straight line. There might be a — there’s a fault line or something he can see or something that — you know, that fault line runs right through that area that they were mining at the time. So there’s that possibility that the geology would be similar to what they had six years prior.

Pat McGinley, a WVU law professor working on McAteer’s independent investigation team, tried to continue this line of questioning — about what MSHA officials knew about the methane floor leaks, what they did about it, and what the whole issue could have mean in the context of the Upper Big Branch explosion.

But Derek Baxter, a Labor Department lawyer working as part of MSHA’s disaster investigation team, stepped in:

I don’t think we should go into conversations with the accident investigation team. This is material —

McGinley responded:

Well, this is material to our investigation.

Then, here’s what happened:

Attorney Baxter: Can we go off the record, please?

Mr. McGinley: I’d like to stay on the record.

Attorney Baxter: No, I want to go off the record right now.

Mr. McGinley: No. Just put on the record the reason.

Attorney Baxter: The reason is because you’re starting to go beyond the facts that this witness knows and you’re starting to ask questions of his conversations with team members during our investigation.

Mr. McGinley: Well, we’ve been trying to find out information about these memoranda and what happened now for — it’s going on a month, and his testimony is helpful in that regard.

Attorney Baxter: Can we go off the record, please?

Mr. McGinley: That’s fine.

During the off-the-record discussion that followed, MSHA officials insisted that questions about all of this be limited, and as we reported yesterday, there is still much that the public doesn’t know about how and why federal mine safety regulators didn’t take action to prevent methane floor leakage that they knew was a problem — and that their own report now concludes was a major contributing factor in the worst U.S. coal-mining disaster in nearly 40 years. The new transcript discusses emails between various MSHA officials about all of this, but those were never turned over — despite a specific request — to the McAteer independent team.

After seeing the Gigliotti transcript on MSHA’s website and reading it several times, I called Davitt McAteer this morning and asked him about all of this. Here’s what he told me:

It is a problem, and it is unfortunate. The outcome of the report that was released two days ago by MSHA suggests these were very pertinent questions and a very important line of questioning. It’s absolutely essential that we have independent teams and people who don’t have a stake in this taking a hard look at what happened. It’s truly unfortunate that the agency for whatever reason tried to move away from this line of questioning.

More criminal charges coming in UBB Disaster?

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Just who else is U.S. Attorney Booth Goodwin looking to prosecute in the Upper Big Branch Mine Disaster case?

It’s entirely possible that many coal industry critics are under-estimating the potential safety benefits of the $200 million settlement that Goodwin worked out with Massey Energy’s new owner, Alpha Natural Resources. I’ve tried to lay out clearly what Goodwin — and some respected mine safety experts — say are the positives in this story in this morning’s Gazette.

And maybe the rest of us in the media have missed an important story by not writing more about Massey’s union-busting efforts, their possible impacts on miner safety (an issue Mike Elk tackled for In These Times), and whether Alpha’s attitudes toward unions are similar to Massey’s.

But the first sentence of this post is really the question I’m hearing and seeing the most out in the media, from folks who follow the coal industry and from our readers. As my co-worker Kate White explained in this story today, the Upper Big Branch victims’ families certainly aren’t impressed with the settlement and want to see more criminal charges:

Rita Stover said she believes former Massey CEO Don Blankenship should be prosecuted.

“He’s getting off,” she said. “He got to retire. … He’s just as guilty as anybody else. He had to know what was going on.”

And my old buddy, former UMWA President and current AFL-CIO President Richard Trumka was his usual to-the-point self:

We await jail time for the culpable .. The only way to make a real down payment on justice is to ensure the guilty serve appropriately stiff jail sentences.

So what do U.S. Attorney Booth Goodwin and his team have going? Wouldn’t we all like to know?

The official statement didn’t give us much, except the very important news that this time around Massey officials didn’t get the deal they got after the deaths of two miners at the Aracoma Alma No. 1 Mine in January 2006:

The agreement … addresses only the corporate criminal liability of the former Massey, not potential charges for any individual. The criminal investigation of individuals associated with Massey remains ongoing.

As my buddy Howard Berkes reported this morning for NPR, Goodwin did tell us this when he pressed him repeatedly at yesterday’s press conference:

“Yes,” he told reporters, “our investigation has revealed criminal conduct.”

Continue reading…

Bad news just in: The U.S. Mine Safety and Health Administration website lists two more coal miners who have died on the job in 2011.

One of the deaths occurred at Oxford Mining Co LLC – Oxford Mining #3 in Ohio. According to MSHA:

Last Saturday afternoon, a bulldozer operator over-traveled a 90-foot highwall while trying to establish a berm on a bench.  The injured miner was hospitalized with a collapsed lung, his neck broken in two places, and several cracked and broken ribs.  At one point, he was in a coma, but regained consciousness later.  He died yesterday (Tuesday) afternoon after family members were called to the hospital.

And the other at Fairbanks Coal Company Inc – Fairbanks No 4 in Virginia. According to MSHA:

At 8:00 am today, MSHA was notified of a possible fatality at Fairbanks Coal Co. Fairbanks No.4 mine in Wise County, Va.  The miner was working in an excavator, near the highwall, when the highwall collapsed.  The mine operator reached the victim and reported he had no pulse.  The area around the highwall was wet and unstable, attributed to heavy rains in the area.

An MSHA inspector was on-site and an accident investigation team was assembled.

The victim’s body was not immediately removed because of the highwall instability near his excavator.  The operator prepared and implemented an action plan to remove the victim from the excavator after clearing the unstable highwall material and removing the excavator away from the highwall.

The victim’s body was extricated at approximately 11:30 a.m. and taken from the scene by ambulance.

Over at the State Journal, Taylor Kuykendall has made an interesting point regarding the huge document dump the U.S. Mine Safety and Health Administration did yesterday when it released its report on the Upper Big Branch Mine Disaster:

In a release of documents Tuesday, the Mine Safety and Health Administration said it released all the transcripts of UBB investigation interviews except those which were asked to be held by prosecutors. Goodwin said his office holds “not many more than 10 or a dozen” of the hundreds of interview transcripts.

Of the interviews missing from the transcripts released, one notable omission was the transcript of the interview with Bob Hardman, the MSHA district manager who took charge of the rescue effort. Hardman’s interview has been cited in MSHA’s report as well as in the independent investigation led by Davitt McAteer, but was not part of the release.

It’s worth noting that Hardman not only took charge of the mine rescue effort, but his work in that regard was harshly criticized by top mine rescue team members from his own agency. And not for nothing, but as district manager, Hardman was also in charge of ensuring that proper inspections and enforcement actions were taken at Upper Big Branch, and that agency officials properly reviewed mine ventilation, roof control and other plans for the operation.

A closer look, though, shows that there is more than one notable omission. In fact, Hardman is just one of at least eight MSHA District 4 personnel who were interviewed by the government investigation team whose transcripts are not among the 265 interview transcripts posted online by MSHA yesterday.

Among them: Two of Hardman’s top assistants, Rich Kline and Linke Selfe. Also not included was the transcript of the interview of Joe Mackowiak, a top MSHA district ventilation specialist who spent a fair amount of time on Upper Big Branch issues. Back in May, we reported that Mackowiak had made a desperate attempt in the weeks before the disaster to get then-Massey vice president Chris Adkins to sent in a company ventilation expert to help fix repeated airflow problems at Upper Big Branch. MSHA has also withheld from public scrutiny the testimony of two agency inspectors, Keith Sigmon and Jerome Stone, who were involved in policing Upper Big Branch. We know these folks were interviewed, because their testimony is cited and footnoted in the McAteer team’s report.

Interestingly, MSHA did release a transcript of the testimony provided by Kevin Stricklin, the agency’s coal administrator.

Yesterday’s document dump included 265  transcripts, and MSHA had previously released 25 transcripts related to the mine rescue effort at UBB.

The MSHA report says agency officials conducted 310 formal interviews in front of a court reporter. So that means they’ve released 290 transcripts — and of the 20 that they have withheld, nearly half are testimony of MSHA employees or former MSHA employees.

U.S. Attorney Goodwin told Taylor:

We asked MSHA to hold back just a very few transcripts. Ordinarily the purpose of that is so that we can have the opportunity to examine them, have the opportunity to look through them. I wouldn’t take a big cue or clue from which one we asked to be held back. Oftentimes, it’s because some of these individuals will ultimately be our witnesses down the road.


Amazingly absent from the reactions offered by political leaders to yesterday’s Upper Big Branch settlement and MSHA report was any mention of the failure of government inspectors and other regulators to prevent 29 deaths and the worst U.S. coal-mining disaster in a generation.

I say amazingly absent because if any of these political leaders or their staffers had actually read the MSHA report — even the executive summary posted on the agency’s website — they would have seen the troubling link MSHA investigators themselves made between previous methane outbursts at Upper Big Branch and the April 5, 2010, explosion.

My co-worker Davin White, now the Gazette’s assistant city editor, broke the story of one of these previous incidents just two days after the explosion, with this story about a January 1997 methane ignition at Upper Big Branch.  We broke the story of two other previous incidents, in 2003 and 2004, a few months later, with this June 2010 article headlined, “Mine probe focuses on methane outbursts at Upper Big Branch.

Now, top MSHA officials have not been eager to talk about this, even as they’ve had public briefings and offered congressional testimony that rightly blasted the reckless and illegal (U.S. Attorney Booth Goodwin says criminal) manner in which Massey Energy and its mine manager operated Upper Big Branch. MSHA chief Joe Main has gone so far as to deny the Gazette’s Freedom of Information Act request, refusing to release most of the records that might explain some of the history of these earlier methane problems at Upper Big Branch.

But in its investigation report issued yesterday, MSHA’s Upper Big Branch team had some very important things to say about these matters.

Starting on page 83 of their report, the investigation team goes through the basics of the previous incidents, and then explains:

In discussions with MSHA during the 2004 investigation, the mine’s senior engineer indicated that degasification wells were planned for the next longwall panel (Panel 18) in an attempt to bleed off any gas prior to encroachment of the longwall face. The mine had already constructed interburden thickness maps between the Eagle and Lower Eagle seams, and had constructed a structure contour map for the surface of the Lower Eagle seam, in an attempt to identify structural highs beneath which gas may have accumulated. Subsequent to that investigation, members of the Roof Control and Ventilation Divisions of MSHA Technical Support attended a meeting with UBB and D4 personnel to discuss additional outburst mitigation measures. During the current accident investigation, it was determined that the mine did not have a degasification plan and the measures discussed in 2004 had not been implemented.

To be clear, MSHA is not at all saying that Massey Energy’s theory about a sudden, uncontrollable and massive inundation of methaneDon Blankenship’s “Act of God” — caused the disaster. MSHA investigators have specifically ruled that out.

But, the MSHA team does conclude (see page 85) that the Upper Big Branch Mine has “a geological fault zone, which serves as a conduit for methane.” The report explains:

The fault zone passes through the 2003 and 2004 gas outburst locations and the 1997 explosion, and projects through the face of the 1 North Panel, TG 22 development section, and West Jarrells Mains, as well as intersecting the HG 22 development section …

… the fault zone is interpreted to represent a ramp-and-flat system, in which the fault rides along the surfaces of weak strata such as coal before periodically cutting up across more competent layers. Individual structures within the fault zone include drag folds, bedding plane faults, reverse faults, and overturned anticlines (A-shaped geological folds) that exhibit a strike of 40 degrees W in or directly above the coal seams.

A figure from the MSHA report shows the UBB mine with projected fault zone and locations of joints (green, blue), slickenslides (red) and floor burst locations (purple). Click to enlarge the image.

More to the point:

Investigators interpret the fault zone to represent a conduit for methane migration into the Eagle seam from a reservoir that was ultimately sourced in organic-rich Devonian shale.

Now, the MSHA report also points out:

… The mine map indicates that Panel 18 was terminated short of its intended length. This termination coincides with a projected (imaginary) diagonal line connecting the 2003 and 2004 outbursts … [Performance Coal Company] and Massey stopped several longwall panels along the projected fault zone.

But the report also explains:

Another factor in the release of methane appears to be the overburden present above the fault zone. While other panels mined through the fault zone without experiencing a methane outburst, those panels encountered overburden depths much less than 1,000 feet within the fault zone. the panels that experienced methane outbursts encouraged overburden values of over 1,150 feet. It appears that several longwall panels, including Longwall Panels 11, 12, and 18 and Longwall Panels 16 and 17, wee terminated in the vicinity of where the projection of the fault zone intersected the 2,000-foot topographic contour. This corresponds to between 1,125 and 1,200 feet of overburden, depending on the seam elevation.

Yeah … we’re getting a little deep in the weeds now. So what does all this mean? Flip back to page 6, which is part of the Executive Summary of MSHA’s report:

A small amount of methane, likely liberated from the mine floor, accumulated in the longwall area due to poor ventilation and roof control practices.

Based on physical evidence, the investigation concluded that methane was likely liberated from floor fractures into the mine atmosphere on April 5, the day of the explosion. The investigation team subsequently identified floor fractures with methane liberation at longwall shields (a system of hydraulic jacks that supports the roof as coal is being mined) near the tailgate, the end of the longwall where the explosion began. This methane liberation occurred because PCC/Massey mined into a fault zone that was a reservoir and conduit for methane. MSHA believes that this is the same fault zone associated with methane inundations at UBB in 2003 and 2004, and in a 1997 methane explosion.

Also, check out Citation No. 8227560, one of the contributory violations issued by MSHA yesterday to Performance Coal and Massey Energy:

The mine has a history of methane incidents on prior longwalls panels. These incidents put the operator on notice for methane hazards on the longwall face. These incidents include:

– A methane ignition / explosion that occurred on 1/4/1997 at No. 2 West Longwall.

– A methane outburst that occurred on 16 Longwall panel in July of 2003

– Another methane outburst occurred on 17 Longwall panel on 2/18/2004

These incidents all occurred in a fault zone and while mining with an overburden in the excess of 1,000 feet. The accident on 4/5/2010 occurred in this same fault zone.

The citation goes on:

The operator failed to implement / follow the recommendations of MSHA’s geologist and Ventilation technical support group following the 2004 outburst. These recommendations included:

— Increasing airflow along the longwall face (the plan at the time required a minimum of 60,000 cfm).

— Degasification wells for the subsequent longwall panels in an effort to bleed gas prior to encroachment of the longwall face.

— Construct a hazard map that showed areas with 1,100 feet of overburden and less than 13 feet of interburden between the eagle and lower eagle seams. Additionally, this map should show the projected structural zone identified in headgate 18, and overmined areas.

And:

The operator’s failure to maintain a sufficient volume and velocity to dilute, render harmless, and carry away flammable, explosive, noxious, and harmful gases, dusts, smoke and fumes contributed to the deaths of 29 miners.

What’s not said there is what MSHA has partly acknowledged already, that agency officials never made sure Massey implemented these recommendations or some other plan to avoid methane doing exactly what it did on April 5, 2010. I say partly, because MSHA has not really explained in any detail how in the world this could have happened, which agency officials exactly were responsible — let alone how they have been punished or what steps have been taken to ensure the same thing doesn’t happen again.

I asked Joe Main about this yesterday during MSHA’s press conference at the mine academy in Beckley. He said the issue is one of those being examined by MSHA’s internal review team, whose report has not yet been completed or made public.  But Joe was quick to add:

One of the things we can’t miss here is … the mine operator had the information that was available on how to address the problem.

Yes, it’s true that the primary duty to protect miners and provide them with a safe workplace is that of the mine operator. But what’s the point of having an agency like MSHA if it’s job isn’t to make sure operators do that. MSHA is fond of saying that its inspectors can’t be in every mine every hour of every day. That’s true — but this is a situation where MSHA knew about not one, not two, but three previous methane incidents at the same mine, knew what the underlying cause was, and recommended steps to fix the problem. Was it too much for the families of 29 coal miners to expect that MSHA would ensure appropriate steps wee taken?

Just 10 days after the Upper Big Branch Mine blew up, President Obama made a bunch of promises to the people of the country and our nation’s coalfields. Among them:

… We can’t just hold mining companies accountable — we need to hold Washington accountable. And that’s why I want to review how our Mine Safety and Health Administration operates … Even so, we need to take a hard look at our own practices and our own procedures to ensure that we’re pursuing mine safety as relentlessly as we responsibly can.

Step 1 might be for MSHA to immediately release the rest of its documents concerning the previous methane incidents at Upper Big Branch, and hold a public briefing to explain exactly how this particular failure by the agency could have happened.

Southern West Virginia U.S. District Attorney R. Booth Goodwin II speaks to reporters Tuesday, Dec. 6, 2011, at the Robert C. Byrd federal courthouse in Charleston, W.Va.  (AP Photo /Brad Davis)

The reactions have been coming in all day, but I haven’t had time to post them … here are a few (and hey — if you’re a PR person and don’t see a statement by your boss, feel free to take matters in your own hands and post it in the comments section):

Sen. Jay Rockefeller:

“Nothing in these or any other announcements can truly ease the pain suffered on that awful day when we lost 29 brave miners at Upper Big Branch,” Rockefeller said.

“If we do everything in our power to learn from the UBB disaster and make other mines safer, we can take some meaningful consolation in these developments. Today’s final MSHA report sheds additional light on the causes of the UBB disaster and will give our miners’ families some much-needed answers. It’s tragically clear that Massey managed the UBB mine without the culture of safety and compliance that miners deserve and the law requires. The real message of the report is that the explosion at UBB was no accident; it could have and should have been prevented.

“It is a significant step forward for coal miners, their families, and the coal industry that Massey’s new parent company, Alpha Resources, will pay an unprecedented sum – more than $200 million – for mine safety investments, partial restitution for families and a trust fund for research to improve miner’s safety and health. And it is equally important that the U.S. Attorney’s office held its ground regarding ongoing criminal investigations, so that individual officers and agents of Massey can be held fully accountable for their actions.

“Miners and their families also deserve reforms to the law to make mines safer and penalize wrongdoing. My office has already been in touch with some of the families to hear from them about today’s announcements. With the families’ concerns and perspectives foremost in my mind, I intend to review the details of this report and settlement more closely in the coming days, and I will keep pushing my colleagues in Congress to vote for new mine safety reforms. On this day, as we pause to mark West Virginia Miner’s Day, it’s worth noting that it’s been 104 years and we still are trying to enact laws to give miners and families safer working conditions.”

Sen. Joe Manchin:

“This comprehensive and forward-looking settlement takes the right steps to truly protect our miners. By investing more than $120 million in mine safety – including improvements to existing mines, a new West Virginia safety training facility and a research trust – this agreement demonstrates that the government and the company are serious about creating a true legacy of mine safety. While nothing can replace the beloved miners who we lost that terrible day, criminal restitution is an appropriate recognition of the fact that we all have zero tolerance for anything corporations do – or don’t do – that leads to a mine fatality.

“As I have always said, at the heart of this tragedy is the simple fact that we must do everything in our power to never, ever allow any worker to be in the position where this could happen to them or their family. Especially since today is National Miner’s Day, my thoughts and prayers are with the families of the 29 miners who died at Upper Big Branch – and I want to assure the families that the loss of their loved ones will not be in vain. Every worker should know that when they kiss their children goodbye in the morning that they will return home at the end of the day to kiss them goodnight.

“I thank the U.S. Attorney for the Southern District of West Virginia, Booth Goodwin, and his entire team for their skill and dedication in this investigation and prosecution. I applaud their vision and attention to detail in securing this historic agreement that focuses on safety and training. I also thank Alpha Natural Resources for rising to this occasion and meeting these terms. Even though Alpha did not own the Upper Big Branch mine at the time of the disaster, I applaud the company for taking responsibility for both the mistakes that were made and for investing in the future of mining to help prevent another tragedy like this from ever taking place. I encourage them – and all our mining companies – to continue to take steps to protect our miners.

“In addition, I am pleased that this agreement does not prevent the authorities from prosecuting individuals whose actions may warrant criminal charges. There should be no immunity for anyone who is determined to be responsible in any way for the tragedy at UBB.

“April 5, 2010 was one of our state’s most heartbreaking days. I hope and pray that we will never again endure a tragedy like the Upper Big Branch deaths, and I will work every day to make sure that we don’t.”

Rep. Nick J. Rahall:

“The record settlement announced today in connection with the Upper Big Branch explosion should serve as a warning to those who neglect the safety and well-being of miners, but it will not end the nightmare for so many relatives of the miners who perished or were injured at UBB. They want and deserve accountability from Massey representatives whose callous disregard for the safety of the company’s own miners contributed to that tragedy,” said Rahall. “Perhaps the critical component in the settlement agreement is that it denies the protection of the corporate cloak to former Massey officials who may have played a role in that disaster and keeps alive the chance that they will ultimately be brought to justice.”

Shortly after the disaster at UBB, Massey officials publicly rebutted accusers who were fingering the company for wrongdoing, arguing that those individuals were “misinformed” and “rushing to judgment.” But the three investigations to date, including the MSHA investigation finalized today, have all found that the central factor in the UBB explosion was a pervasive corporate culture that put production ahead of safety.

“I spoke with Labor Secretary Hilda Solis early this morning and thanked her for the doggedness of her Department in pursuing the truth about what really happened at UBB. I am grateful, too, to Joe Main, head of the Mine Safety and Health Administration, for his tireless pursuit of answers. As well, I thank President Obama, recognizing that the depth and detail of this investigation and the continuing work of the Justice Department would not be possible were it not for his full support of the funding, staff, and resources needed to bring this important matter to fruition,” Rahall said.

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ABC News has this interesting report tonight:

There are new indications that Blankenship may be attempting a return to the industry that helped him build a massive personal fortune, but also tarnished his image as the man at the helm during the deadliest American mining disaster in decades …

… Kentucky state incorporation records show that scarcely a month after Blankenship agreed to step down as CEO of Massey Energy, he signed papers identifying him as the president of a newly-named company, McCoy Coal Group Inc. McCoy is the family name of Blankenship’s mother.

The status of McCoy Coal and Blankenship’s role with the firm remain unclear — calls to the company’s lawyer and to Blankenship’s attorney have not been returned.

The corporate records in question are online here.