USA Today: Prosecute rogue coal operators

December 20, 2011 by Ken Ward Jr.

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.”

I say “not surprisingly,” because there’s a clear effort by some who follow worker safety issues closely to ensure that MSHA’s failing are not a major part of the discussion. Obviously, the corporate culture at Massey is what investigations by McAteer, the United Mine Workers and MSHA have all concluded was the root cause of the disaster — but can House Democrats, for example, focus on only one angle here? Why can’t they call for more criminal prosecutions at the same time they publicly press MSHA chief Joe Main for answers about his agency’s failings?

Little noticed by anyone in the media, the widows from the Aracoma Mine fire continue to try to sue MSHA, in part to get to the bottom of the potential conflict of interest that were hinted at — but never fully explored publicly — because of the close connections between staff at MSHA’s Southern West Virginia office and the Massey mines they were supposed to be regulating. As we reported on Sunday:

In appealing the dismissal of that case, lawyer Bruce Stanley notes that MSHA’s own internal review at the Aracoma Mine noted the potential for conflict of interest among agency enforcement personnel in Southern West Virginia.

The Aracoma internal review team concluded, among other things, that MSHA efforts at industry-friendly “compliance assistance” may have hampered inspections and enforcement at the Logan County mine prior to the deaths of miners Don Bragg and Ellery Hatfield.

“The internal review team believes that some of the identified deficiencies may have stemmed from the relationship that MSHA developed with the Massey Energy Company representatives in early 2001,” the internal review report said.

The report noted MSHA personnel “worked closely” with Massey management to develop miner training programs, but that “using enforcement personnel in this manner … may have created a conflict of interest that, over time, may have affected the level of scrutiny that MSHA provided.”

Stanley argued in a brief to the 4th U.S. Circuit Court of Appeals that MSHA personnel, “may have failed to take appropriate corrective actions or even conduct promised inspections at all because of conflict of interest created by their close relationships with, and lack of independence from, the operator and its managers.”

MSHA’s response is typical:

MSHA lawyers wrote that Bragg and Hatfield “died in undeniably tragic circumstances in a mine fire caused by the negligence” of Massey subsidiary Aracoma Coal Co.

“The Mine Act explicitly emphasizes that responsibility for safety is on the mine and the miners themselves, not on MSHA … MSHA owned no duty of care to plaintiffs’ husbands here,” MSHA lawyers wrote.

It’s one thing to put that in a court brief that only a few law clerks are ever likely to read … I wonder if top MSHA officials would want to tell Mrs. Bragg and Mrs. Hatfield in person that agency officials “owned no duty of care” to their dead husbands.

Many folks are trying to put a lot of pressure on federal prosecutors to follow through on the Upper Big Branch case. But with MSHA, most observers are sitting back, saying little except that they’re confident that the agency’s “internal review” will address any problems.  But as we also reported on Sunday, questions have been raised now about the leadership and therefore the direction of that internal review. It fell to House Education and Workforce Chairman John Kline, R-Minn., to raise these questions in a letter in which he noted the departure of the internal review team’s leader, Jack Kuzar, who retired from the agency.

“It is highly unusual, if not unprecedented, for the head of an internal review team to depart in the midst of such an important examination,” Kline wrote in a letter to Labor Secretary Hilda Solis. “That such a departure occurred 16 months into the review and as the final report was nearing completion is also troubling.”

2 Responses to “USA Today: Prosecute rogue coal operators”

  1. old one says:

    I am going to comment on this and hope that Ken will allow it to be published.

    Has anyone read the Preamble to the 1969 Mine Act. in part it state that the act is to protect the most presious resorce the coal miner. Did anyone that has worked in the mineing industry as a coal miner really expect to see a crimial conviction(s)? Did anyone really expect any MSHA personel to be crimially charged and convicted? MSHA will do an internal investagation and find a few things that they could have done better and that will be it. One would wonder why if the reports completed by MSHA on itself in the past has not worked then why should we expect this one to be differant. When all is said and done MSHA will own 1/2 of this has have they in the past. I have stated in the past that MSHA will allow top manager to retire and move the other envolved to new duty station and all will go back to the normal mode of operation. David Lurisky started the complance assistance program and he was told at that time that a mine inspector could not just talk to the mine operator about violation that he was duty bound to write citations for each violation of law that he observed. Lurisky came back and tryed to mend the previous statement and stated that we as mine inspector heard him wrong. We did not. The policy was changed how ever field office supervisor may not have received the same information. Please excuse the spelling as I do get tears in my eyes over this. Anyone who has spent his life working for the safety of a coal miner be they UMWA or not will do the same thing. I will make a predication that the IG’s report will not be made public and will the internal investagation ever see the light of day… Remember the Scotia report… almost 30 years to get the report published and made public.

  2. drh says:

    Old one is right – in the past MSHA had adopted the de facto (if not formally stated) policy of letting mine operators avoid a violation by going to the inspector or (worse) going over the head of the inspector. I am not sure if that practice still goes on, or how extensive it was (or is), but I am profoundly pleased to see that it’s role in Aracoma may finally be fully exposed.

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