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

December 9, 2011 by Ken Ward Jr.

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.

7 Responses to “Never again: Can Upper Big Branch be the last one?”

  1. Pragmatic Realist says:

    We have reached a point in our nation’s history where it has become clear that there are some people who do not have to obey the law.

    When you have a few minutes go down to the county courthouse and sit by the magistrates’ offices. You will see there the people who are forced to obey the law. We had a judge in Cabell County who sentenced a young man to 20 years for robbing a theater box office of $2,000. It was a heavy sentence because he was a repeat offender, but how many repeat offenders are there in the coal industry?

    Then when you go to these meetings and hearings, look at the ones sitting at the big tables who are not compelled to obey the law, who give excuses and explanations as to why they are not responsible for what some claim they did. Would the magistrate accept such an excuse from the young man with the scraggly beard and camouflage jacket?

  2. Gary Quarles says:

    There is just nothing left to say so I will just say thank you so much for all your important work for all the UBB miners and their family!! Gary Wayne Quarles mom!!

  3. Rob says:

    As usual Ken, well written. Although, despite your efforts, I’m becoming more and more desensitized about the state of mine safety in this country. When reading these related articles, all I’m seeing is blah, blah, blah.

    Further, until someone other than a security guard is charged with a crime, there can be no closure for the families of the 29.

  4. old one says:

    I agree with Rob mine safety is in a sad state when only a security guard is charged. I have a question I was reading some of the interviews taken from the UBB report and Norman Pages name was mentioned about KY Darbie mine explosion. Could you shead some light on this subject Ken?

  5. BOUTTIME says:

    Another coal mine disaster will happen …. Unfortunately nothing has changed except loosing 29 miners .. So sad but it’s happened Many times before & each one is the last. There are simple ways to prevent the vast majority of such tragedies — but it will not happen until every one involved genuinely wants & demands change!

  6. Nanette says:

    As long as greed and corruption exists, there will continue to be disasters such as UBB. Not to mention the deaths that don’t qualify as disasters, the one or two who are killed at a time that shamefully don’t seem to count to anyone except for their families and friends. As long as those in politics talk the talk and never walk the walk, nothing will change. I am not holding my breath on that.

  7. Ken Ward Jr. says:

    Old One,

    We covered Norman Page’s ties to Kentucky Darby previously:


    It’s interesting to note that, unlike past disasters, MSHA did not have Norman Page brief the press — not even once — and despite repeated requests, he was never, ever made available for media interviews.


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