Coal Tattoo

Is Stover sentence setback for UBB criminal probe?

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BECKLEY, W.Va. — When U.S. Attorney Booth Goodwin stepped before the microphones outside the federal courthouse earlier this afternoon, the first question for him seemed pretty clear to me:  Was U.S. District Judge Irene Berger’s decision to reject Goodwin’s recommendation and not stick former Upper Big Branch Mine security director Hughie Elbert Stover behind bars for 25 years a setback in the criminal probe of the the nation’s worst coal-mining disaster in a generation?

The U.S. Attorney was pretty clear in his answer:

This is absolutely not a setback.

Believe it or not,  Booth Goodwin is probably right.

Really? How can it not be a setback? Stick with me here … read on.

Federal prosecutors pretty much let it all hang out on this one — They not only asked Judge Berger to “upwardly depart” from the federal sentencing guidance that recommended Stover get 31 to 44 months in prison, but they urged the judge to throw the book at Stover with the maximum sentence allowed by law.

Part of the hope here was that an especially stiff sentence for Stover would send a message to other folks out there who have information that would be helpful to prosecutors … Perhaps some memories would suddenly be refreshed, or folks who have so far refused to cooperate would think making a deal would be better than facing tough jail time if they got convicted.

And in taking that route, Goodwin and his top UBB prosecutor, Steve Ruby, outlined their theory that Stover was partly to blame for the disaster, arguing that he lead a scheme to use advance notifications of government inspections to cover up the real conditions at Upper Big Branch and avoid potentially costly safety improvements.

Prosecutors explained in this sentencing memorandum:

A 20-month MSHA investigation concluded that the systematic practice of providing advance warning of inspections at UBB was part of the cause of that mine’s April 2010 explosion.

Defendant played a singular and indispensable role in these warnings, as the United States proved at trial. He required UBB security guards to act as lookouts for mine inspectors, making a radio announcement the moment an inspector arrived. UBB was a sprawling mine, so these early warnings routinely gave mine officials up to two hours to conceal illegal conditions. Defendant’s wrongdoing helped stop MSHA inspectors from ever discovering how dangerous UBB truly was.

This is where they ran into problems. Judge Berger made it pretty clear that she just wasn’t buying the notion that Hughie Elbert Stover — who probably never went underground at Upper Big Branch in his time working for Massey’s Performance Coal Co. — was to blame for the deaths of 29 coal miners. At today’s hearing, the judge noted that Stover wasn’t actually charged with himself providing advance notice, or even conspiring with others to do so, but with obstrucing the government’s investigation. This led Judge Berger to say pointedly:

There was nothing in this case to indicate that your actions resulted in this particular explosion. There’s no evidence that any actions on your part at around the time of this explosion resulted in the loss of the lives of these miners.

The judge added:

It is a very serious thing to hang death on anyone, and it should only be done when there is evidence to support it.

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So, West Virginia Democrats are citing the House passage of a mine safety bill as evidence that the Tomblin administration and their party’s legislative leadership are “getting the job done.”

But it’s interesting to see how their rhetoric about coal-mine safety has evolved in the nearly two years since the Upper Big Branch Disaster claimed 29 lives in our nation’s worst coal-mining disaster in nearly 40 years. We’ve been through some of this before, but it’s worth repeating and updating.

Back when the independent team led by Davitt McAteer issued its report on Upper Big Branch, Gov. Tomblin made a pretty sweeping statement:

Today is no doubt another difficult day for the family and friends of the brave men we lost on the afternoon of April 5, 2010. I hope that the Report will bring some closure to their families. They and all West Virginians have my commitment that we will do all we can to make sure that a disaster like this never happens again.

When the MSHA report was released, Gov. Tomblin said:

This report, coupled with those previously released by other parties, and the forthcoming report by the State Office of Miners’ Health Safety and Training, will provide us with the necessary analysis we will use moving forward to do all that is necessary to prevent another mining disaster.

And here’s the statement issued by Gov. Tomblin last week, in response to his state agency’s report:

Much like the other reports on the tragic explosion at the UBB mine — one common theme prevails; this disaster was preventable. I am committed to making sure that our laws are properly enforced and that we pass meaningful mine safety legislation. We simply cannot bear another mine disaster in West Virginia. I am working with the Legislature to make sure that my legislation, currently pending in the House of Delegates, passes so that we can work to prevent another mine disaster from occurring. I am confident that the Legislature will soon pass House Bill 4351 so that I can sign it and we can immediately begin its implementation.

Finally, here’s what the governor said yesterday after the House passed the mine safety bill:

Today, the House of Delegates passed House Bill 4351, one of the most significant pieces of mine safety legislation in recent memory. My staff and I have worked tirelessly over the past several weeks with the affected stakeholders and the legislative leadership, including the Speaker of the House of Delegates and President of the State Senate, to advance my comprehensive mine safety legislation towards final passage. Working with Speaker Thompson and President Kessler, we have improved and expanded HB 4351 and I’m confident that passage of the reforms in HB 4351 will not only make our coal mines safer, but will also save lives. I look forward to continuing to work with the State Senate to pass this important piece of legislation and to the day it arrives on my desk for signature.

If the unthinkable happens again in West Virginia’s coalfields, will Gov. Tomblin and legislative leaders be able to tell the families that they did everything they could to prevent it?

UPDATED: Here’s a link to our online story from this morning’s hearing, with the news that Judge Berger sentenced Mr. Stover to 3 years in prison.

I’ll be heading down to Beckley in a little while, to cover this morning’s scheduled sentencing for Hughie Elbert Stover, the former Massey Energy security chief convicted last October of lying to investigators and trying to destroy evidence in the federal probe of the Upper Big Branch Mine Disaster.

Make no mistake: This hearing is a big test for U.S. Attorney Booth Goodwin and his staff (including lead UBB prosecutor Steve Ruby, pictured above) in their effort to get tough on mine safety criminals. Goodwin has urged U.S. District Judge Irene Berger to give Stover the statutory maximum of 25 years — a sentence described by NPR’s Howard Berkes this morning this way:

A 25-year sentence would be more than seven times the jail term recommended in federal sentencing guidelines for Stover’s crimes, which max out at 41 months. Defense attorney William Wilmoth says prosecutors want what amounts to “a de facto life sentence” for the 60-year-old Stover.

Goodwin and Ruby described their strategy this way in a sentencing brief filed with Judge Berger:

Longstanding conventional wisdom holds that the federal government cares little about mine safety crimes. This case has the potential to upend that assumption and foster broad deterrence in an industry that is closely monitoring the outcome here. A sentence consistent with the magnitude of defendant’s conduct and its consequences will send a resounding message: Gambling with coal miners’ lives risks the most severe punishment available under the law.

Today’s hearing will feature testimony from Gina Jones, the widow of Upper Big Branch miner Dean Jones, as well as MSHA coal administrator Kevin Stricklin and Gary May, a UBB mine superintendent who was charged last week with conspiracy to violate mine safety laws and cover up the resulting hazards at the mine. May’s appearance on the government’s witness list is another indication that he’s cooperating with prosecutors, has reached some sort of plea agreement and — most importantly — is providing testimony against other potential targets of the criminal probe.

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Anti-mountaintop removal activists are working overtime this week (see here and here), trying to draw attention to a vote expected in the Tennessee General Assembly on a bill called the Tennessee Scenic Vistas Protection Act. One of Earthjustice’s bloggers opined:

This legislation would ensure that the most scenic vistas are protected for residents and visitors instead of being razed.

The Tennessee Senate’s Energy and Environment Committee will vote on the bill, determining whether it makes its way to the whole state’s senate for full floor vote.If it passes, this will be the first and only mountaintop removal mining ban in any state in the U.S., setting a precedent for other Appalachian states and citizens who are coping with this abominable type of coal mining.

The legislation has received support from both the Tennessean and the Knoxville News-Sentinel, which commented:

Coal mining used to be an important industry in Tennessee, but mechanization has caused the work force to dwindle to the point that only a few hundred jobs remain. Tourism, on the other hand, is worth more than $15 billion to the state’s economy, and Tennessee’s mountains are a big attraction. Hikers, hunters, horseback riders, anglers and others enjoy Tennessee’s mountains and valleys.

Coal mining has already harmed the mountains. Some streams are polluted and there are areas pockmarked from poor reclamation practices in the past. The North Cumberland region has been named of one the 10 most endangered areas in the South by the Southern Environmental Law Center because of the threat of increased mining activities.

Protecting the integrity of the mountains is a key to Tennessee’s future. These two efforts would allow mining where possible while preserving nature’s skyline. We urge Salazar to grant the state’s petition in the North Cumberland, and implore state lawmakers to pass the Tennessee Scenic Vistas Protection Act.

In 2010, Tennessee produced just 1.8 million tons of coal, with 1.2 million of that coming from surface mining. One decent-sized mountaintop removal operation in West Virginia easily generates more coal than that in a year. Given that, it might have been nice if the TV ad environmental groups are running in support of this legislation (above) would have included some Tennessee-specific numbers, rather than region-wide data.

For a better understanding of coal’s role in Tennessee, check out this report from the good folks at Downstream Strategies.

Alpha gets two more ‘imminent danger’ orders

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This just in from Alpha Natural Resources:

On February 23, 2012, Brooks Run Mining Company, LLC (“Brooks Run”), a subsidiary of Alpha Natural Resources, Inc., received an imminent danger order under section 107(a) of the Mine Act alleging that a miner at the Cucumber Mine (the “Mine”), located near War, West Virginia, was observed operating a mechanized scoop by walking along side of it and activating the controls by reaching into the operator’s compartment.  Brooks Run has a safety policy which prohibits the cited behavior.  No injuries occurred, and the order did not require withdrawal of miners from underground.
Brooks Run has retrained all miners working at the Mine regarding its safety policy, and the order has been terminated.

And I had forgotten to post this one from last week:

On February 17, 2012, Cloverlick Coal Company LLC (“Cloverlick”), a subsidiary of Alpha Natural Resources, Inc., received an imminent danger order under section 107(a) of the Mine Act alleging that the threat of falling rock and sliding earth from a hillside adjacent to a retaining wall construction site prevented safe access to the site, which is on the surface area of Cloverlick’s Mine No. 1 (the “Mine”), an underground mine located near Cumberland, Kentucky.  The retaining wall was being constructed for Cloverlick by an independent contractor, and Cloverlick’s employees were not exposed to the condition cited.  No injuries occurred, no miners were observed in the area and the order did not require withdrawal of miners from underground. Cloverlick’s independent contractor has backfilled and secured the area, and the order has been terminated.

Members of the West Virginia House of Delegates just passed — with a unanimous vote — a much-watered down version of a mine safety bill (see previous posts on the bill here, here and here) with language worked out in closed-door meetings with industry and labor lobbyists, and a key provision that everyone admits is aimed at addressing a problem that had absolutely nothing to do with the Upper Big Branch Mine Disaster.

Among the most telling moments — about coal and West Virginia’s history — was when Delegate Charlene Marshall, D-Monongalia, spoke in favor of the bill, noting that she had lost a grandfather, her father and then her step-father, all to coal-mining accidents. Imagine that. Just imagine. Delegate Marshall said of the bill:

This is such a great day that we have this bill before us. I’ve been looking forward to this day. Even as a child, I often wondered if there was anything I could do. When something like this strikes close to your home, if you don’t get it now, you’ll get it then.

House Judiciary Chairman Tim Miley explained the bill, and the changes made to it during those private negotiations among legislative leaders, the governor’s office, the West Virginia Coal Association and the United Mine Workers. It was baffling, though, when Miley got into the language regarding mine superintendents being required to periodically review fireboss books. Miley told fellow lawmakers:

The culture of any business starts at the top. This was our effort to begin to hold management accountable.

Miley then said the bill would require mine superintendents, after they review the fireboss books to “make appropriate changes if there safety issues to be addressed.”

With all due respect to Delegate Miley, that’s not what the bill says. Here’s the language:

No less frequently than bi-weekly, the superintendent or, if there is no superintendent, the senior person at the mine shall obtain complete copies of the books of the fire bosses, and acknowledge that he or she has reviewed such copies and acted accordingly. This acknowledgment shall be made by signing a book prescribed by the director for that purpose.

I’m not burdened with having attended law school — but does anyone know what “acted accordingly” means and exactly how it would be enforced?

House Speaker Rick Thompson and Delegates Tim Miley, Charlene Marshall, Tim Armstead and Mike Caputo discussed the mine safety bill that passed the House today. Photo via W.Va. Legisalture.

It was nice to hear that my buddy, Delegate Mike Caputo, D-Marion and a UMWA official, reads Coal Tattoo. He said in his floor speech:

There are those in the press who have been critical of what we’re doing. That’s OK. I welcome that. I want the press to let the world know that we need to be vigilant when it comes to mine safety. I want them to keep an eye on this body and I want them to keep an eye on Congress.

Delegate Caputo walked us through the history of coal mining, and how lawmakers on both state and national levels have acted to protect miner health and safety only in the immediate aftermath of mine disasters.  He said he’s told fellow lawmakers that he’s not happy about the bill:

Hell no I’m not happy. We’re doing a bill because people died. That’s the only time we pass meaningful legislation in this country.

But he’s also gone from talking very tough — saying he wasn’t looking to compromise with the coal industry — to explaining that the bill will save lives, and thus is worth supporting.

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The point of closed-door negotiations between various lobby groups — aside from insulating lawmakers from any real public accountability — is to get a product that everyone will agree to … to push legislation through with everyone on board.

Supposedly, that’s what has happened with the fairly mild mine safety legislation that is expected to be approved today in the West Virginia House of Delegates. When it comes to agreed-to bills involving powerful extraction industries, this mostly means that lawmakers are trying to soften the language enough that the industry in question — whether publicly or privately — get their friends in the Legislature to kill it off. Just look at the way the Marcellus Shale bill worked out during last December’s special session (see here and here).

Of course, one problem with this is when lawmakers or the governor start off with pretty weak legislation to begin with — legislation that is focused on a problem that had nothing to do with the disaster that is being responded to, and legislation that the state’s own investigators said doesn’t really go to the heart of the matter. If you start off with something weak, you really have nowhere to go when the industry starts complaining and you need to do something to quiet them down and get their approval for how they’ll be regulated.

That’s part of what’s happened with this mine safety bill, as I tried to explain in a blog post Sunday evening and a print story that was published this morning. After looking at the legislation and how it’s evolved, West Virginia University law professor Pat McGinley, a member of special investigator Davitt McAteer’s independent Upper Big Branch investigation team, told me in an e-mail message:

Twenty nine men died at UBB in the worst disaster in four decades and the Legislature won’t enact tough new mine safety requirements unless the coal industry agrees? It appears the post-mine-disaster “it will never happen again” dance is ending with coal lobbyists playing the tune and the Governor and legislature shamelessly dancing to it.

Think this bill is a strong, comprehensive piece of legislation that will keep any Upper Big Branch Mine Disaster from happening in West Virginia?

OK, then tell me what it means for a coal-mine superintendent to have “acted accordingly” after reviewing fireboss books — the safety records that are meant to be a list of hazards discovered and how those hazards are fixed before workers go underground.  Or, explain why it’s only a crime to commit a safety violation — or order a safety violation — that kills a miner, but it’s not a crime to cause a miner to be permanently maimed.

Better yet — why should someone face more serious punishment if they use the WVU logo without permission (see here and here) than if they kill a coal miners? That’s right, WVU trademark violators? Up to 10 years in jail and a $100,000 fine. Mine safety criminals? Up to five years in prison and a $10,000 fine.

But as the House moves to pass this mine safety bill, and the action moves to the Senate, part of AP reporter Larry Messina’s dispatch on the legislation caught my eye:

Another Upper Big Branch-related provision would mandate methane gas detectors on mining machines, and require that these shut down and cut off power when nearby gas reaches a dangerous level. While supportive of the bill as amended, the West Virginia Coal Association questions the proposed gas level standard, Vice President Chris Hamilton said Monday.

“There are concerns over sections dealing with methane gas that tend to be different than the current requirements found under federal law,” Hamilton said. “There’s nothing more fundamental to our business than detecting and controlling methane gas… We want state and federal law in this area to be consistent.”

As previously explained to me, the goal of this section was to have certain methane monitors in underground mines shut off equipment if the explosive gas reached 1.5 percent of the atmosphere, as opposed t0 2.0 percent under federal law (both numbers are well below the explosive range of 5 to 15 percent).  Some sources I’ve talked to aren’t sure this is such a revolutionary change. Others have said some of the amended language is very confusing, internally contradictory, and perhaps even weaker than current law in some respects, such as allowing potentially unsafe, highly-dusty movement of continuous miners.

But I’ve also continued to hear — as Chris Hamilton explained in Larry’s story — that industry doesn’t like parts of this bill. What will they do when it moves over to the Senate? Stay tuned …

We’ve got a little AP story in today’s paper about Senate passage of the bill that would increase the coal production tax that funds cleanups of West Virginia coal mines that were abandoned after 1977. Here’s the deal:

West Virginia lawmakers are considering at least one tax hike this session.

The state Senate unanimously passed a bill Monday that would increase the tax that funds the cleanup of abandoned coal mine sites. Environmental officials say West Virginia needs more money for treating water at these sites. Monday’s bill would increase the reclamation tax on processed coal from 14 cents to nearly 28 cents per ton.

Officials estimate that will increase the tax’s annual revenues from $19 million to $36 million. The water reclamation trust fund would get $20 million of that per year.

Regular readers know that West Virginia regulators, Gov. Earl Ray Tomblin and lawmakers are under facing a federal court lawsuit that could force an OSMRE takeover of the state’s special reclamation fund unless they come up with more money for this program. We’ve reported many times on the huge financial problems facing the state’s special reclamation program (see here, here, here and here).

You can read this particular piece of legislation here. It’s Senate Bill 579. It goes now to the House.

Is this ‘meaningful’ mine safety legislation?

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Updated: Here’s our print story about this bill, and noting its passage — voice vote — to third reading in the House.

As we begin another week, expect movement perhaps as early as Monday morning to get a mine safety bill through the West Virginia House of Delegates before Wednesday’s deadline to approve legislation in its house of origin.

Officials from the Tomblin administration have worked out a deal with the House leadership, after the legislation appeared stalled last week because coal lobbyists wouldn’t go along with it. The deal, of course, was worked out in closed-door meetings between lawmakers, the governor’s office and lobbyists for the West Virginia Coal Association and the United Mine Workers. This is the preferred method of addressing changes to legislation up at the statehouse, mostly because it allows lawmakers on all sides to avoid having to put their names down as having voted one way or the other on amendments.

As we discussed here on Friday, it’s unlikely anybody is going to be claiming that this bill represents doing everything we can to protect the health and safety of West Virginia coal miners … look instead for political leaders and lobbyists for coal and mine workers to promote this as “meaningful” legislation, the term Gov. Earl Ray Tomblin have switched to in discussing the matter.

Still, both sides will claim victory, and the notion that just getting a bill — any bill — passed will get positive coverage from the statehouse press corps (See also here).

But is this really a  meaningful bill? Let’s take a look at where the agreed-to language stands right now, as it’s spelled out in a floor amendment filed on Friday by House Judiciary Chairman Tim Miley, D-Harrison.

First of all, make no mistake about it: Coal lobbyists got a drug testing provision, despite there being absolutely no evidence that drug or alcohol abuse played any role at all in the deaths of those 29 miners who got blown up at Massey Energy’s Upper Big Branch Mine on April 5, 2010. As currently written, the bill contains no provision to provide treatment or other help for workers who develop drug or alcohol problems — something that even the Bush administration thought should be included in a substance abuse regulation proposed by the federal Mine Safety and Health Administration.

Next, the UMWA lobby got the language it wanted to give families of mine accident victims the ability to appoint a someone to represent them during state government investigations of those accidents. As the UMWA wanted, this language would allow families to appoint union representatives if they want to, even if the UMWA doesn’t represent the mine’s workers for collective barganing purposes.

What’s fascinating about this section of the legislation — especially given the UMWA’s position in favor of public hearings in mine disaster investigations — is language that could effectively allow the state Office of Miners’ Health, Safety and Training to block from public release the entire interview transcript of any witness who asks that their statement to investigators be kept confidential.   This is much broader than the language proposed by House leaders, which allowed only the name of such witnesses to be withheld, while the content of their testimony would be made public (which is how the state and MSHA have handled a small set of transcripts of UBB witnesses who asked for confidentiality).

State mine safety officials have a long history of being very open about their investigations, releasing witness interview transcripts and recordings that federal investigators sought to keep private.  But the current language in the Miley floor amendment would allow, just for example, state officials to withhold unflattering testimony about their own agency if inspectors interviewed in an investigation sought confidentiality. It’s a major step backward in maintaining some public transparency in mining accident investigations.

What about the other major provisions of the bill? Here’s a summary:

Requiring more accountability from top mine managers — The bill would require mine superintendents to review fireboss safety books. But take a look at the specific language:

No less frequently than bi-weekly, the superintendent or, if there is no superintendent, the senior person at the mine shall obtain complete copies of the books of the fire bosses, and acknowledge that he or she has reviewed such copies and acted accordingly. This acknowledgment shall be made by signing a book prescribed by the director for that purpose.

Now, this was already a weakening from the House leadership’s original bill, which would have required mine superintendents to review fireboss books every day, but exactly what does this version mean when it requires superintendents to acknowledge that they have  “acted accordingly”? Anybody know? Why doesn’t it say, specifically, that the mine superintendent is required to certify that all hazards noted in the books have been fixed?  By the way, this particular language is also  one major weakening of the bill that was made since the House Judiciary Committee passed a substitute version of the bill.

New criminal penalties — The bill makes it a crime for “any person” to willfully violate or order someone else to violate a state mine safety standard, but only if that violation causes the death of a worker. Interestingly, the state mine safety office has stopped classifying violations as “contributing” to fatalities, so it’s not clear how it would be decided what violations do and don’t directly cause deaths.  This language is also weaker than the House leadership proposal, which would have made all willful violations a crime — punishable with fines and jail time — regardless of whether they led to a death. And not for nothing, this is another major weakening of the bill that was made after House Judiciary Committee approval of a substitute bill.

More importantly in this regard, the legislation provides absolutely no new mechanism by which criminal violations under state law would actually be prosecuted. State mine safety officials have been unable to point me to any examples in recent memory where county prosecutors — the only ones with legal authority to bring such charges — have used the state’s existing criminal statutes. And in fact, state officials haven’t been able to point to cases where they referred potential criminal violations to county prosecutors for further investigation. If state mine safety criminal statutes aren’t going to be used, what good does it do to enhance those laws?

Mine ventilation plans — The proposed amendment mirrors the governor’s office proposal in some ways, including the fact that it eliminates a provision of current law which requires coal operators to obtain state approval of ventilation plans before using those plans underground. Operators would have to submit their plans to the state, and state officials would have the authority to review and comment on them. But operators would have to implement changes recommended by the state only if  mine company officials considered those changes “practicable.” Oddly — coming from a state that continually wants federal officials to stay out of the coal industry’s business — state recommendations that companies refuse to implement would be forwarded to MSHA, in the hopes, I suppose, that federal officials would do something about it. The floor amendment language is weaker than what was recommended by state mine safety Director C.A. Phillips and what was proposed by the House leadership.

— Advance notice of inspections — Warning companies or workers about impending state inspections would be made a crime, but only if it can be proven that the advance notice was done with the intent to disrupt the inspection. This is a much narrower definition than existing federal law, which makes it a crime to provide advance notice of inspections – period.

— Dealing with repeat mine safety violators — The only additional tools given to state inspectors to deal with mine operators that repeatedly violate safety standards and create hazards to miners is to call in the state’s mine safety training board, which is then charged with instituting additional educational programs aimed at the hazards inspectors found.

— Increasing civil penalties — The maximum fine for most safety violations would be increased from $3,000 to $5,000 — that’s compared to $10,000 maximum fines sought by the House leadership, and $70,000 maximum fines under current federal law.

— Paying miners during imminent danger closures — The new legislation removes language that the House Judiciary Committee added to the governor’s bill to expand the amount of time for which miners are paid if their workplace is shut down because an operator created an imminent danger to them and then did not promptly correct the hazard.

— Methane and coal dust — The bill would increase the requirements for ensuring explosive coal dust is controlled by “rock dusting,” but that change is already required by new MSHA rules. The bill would also institute some additional methane testing, and tighten the language for when mining equipment must be shut down in the presence of explosive gases. But more importantly, the legislation completely ignores the recommendation from independent investigator Davitt McAteer that state officials require all mine operators to install the advanced coal dust sampling equipment and ventilation monitors that Alpha Natural Resources agreed to use under its non-prosecution agreement with U.S. Attorney Booth Goodwin.

Perhaps the most fascinating thing in this legislation is a few words tucked into the provision giving families of miners who die on the job to appoint a representative to sit in on the accident investigation:

No more than five representatives designated pursuant to this section may attend witness interviews and investigatory hearings for the purpose of observing such interviews and hearings and conveying information to accident victims’ family.

If I’m reading this correctly, somebody working on this bill was concerned that, after a major mining disaster, you could end up with representatives of more than five miners’ families wanting to sit in on interviews. Whoever wrote that must think it’s likely we’ll see more mine disasters in our state’s future — more explosions or roof falls or fires where more than five miners are killed.

Maybe they’re right.

Remembering the Buffalo Creek Disaster

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(A dog sits in Buffalo Creek hollow in the aftermath of the 1972 coal-slurry dam disaster in this photo by longtime Gazette photographer Lawrence Pierce)

Earlier this week, I wrote a print story for the Gazette looking back briefly at the Buffalo Creek Disaster and at the continuing concerns of coalfield citizens about coal-slurry impoundments that loom over their communities. As I wrote in that story:

Forty years ago Sunday morning, a trio of coal-waste dams at a Pittston Coal operation on Buffalo Creek in Logan County collapsed. A wall of sludge, water, and debris stormed down the hollow from Saunders to Man.

By the time the Feb. 26, 1972, flood was over, 125 people had been killed. Another 1,100 were injured, and about 4,000 were left homeless.

A citizens’ commission report called Buffalo Creek “a man-made disaster.” A governor’s task force concluded, “It was, in the truest sense, the most destructive flood in West Virginia history.”

Today, hundreds of coal-waste dams still loom over Appalachian communities. Coalfield residents often worry it could all happen again.

Industry officials and most regulators say it won’t. They point to tougher laws, stronger engineering standards and better construction practices put in place after the Buffalo Creek Disaster.

Other experts acknowledge serious improvements over the last four decades. Buffalo Creek spurred Congress to pass the federal Surface Mining Control and Reclamation Act. Lawmakers also added new dam-safety duties to the work of the federal Mine Safety and Health Administration when they rewrote coal-mine safety rules.

But coal-slurry impoundments remain a constant target for citizen concerns, and for the environmental community’s growing efforts to crack down on the coal industry generally and mountaintop removal specifically. And some experts say there are reasons to be worried.

“We’ve come a long way since Buffalo Creek,” said longtime mine inspector Jack Spadaro, who investigated the disaster for a special gubernatorial commission.

A few years back – at the 25th anniversary of that terrible flood — I did an oral-history interview with Jack Spadaro and he told me:

The thing that disgusted me was that people in the valley had been saying for years there was a problem there. They’d been evacuated many times before because of the fear of a dam failure.

A woman named Pearl Woodrum wrote a letter to the governor, I think it was dated February 1968, four years before the flood. Pearl Woodrum was saying to the governor that there was a dam at the head of Buffalo Creek that was unsafe and that if it failed, it would kill all the people in the valley. She said, ‘If you don’t do something, we’re all going to be washed away,’ and that’s what happened. It was a prophecy.

The head of the Public Service Commission had a copy of her letter and didn’t do anything. The U.S. Geological Survey and the Department of Natural Resources had been repeatedly asked to look at it. There was this letter to the governor that was passed on down through the layers of government, and nowhere along the way did anyone take any kind of decisive action.

There were other people in the valley, I don’t remember their names, who complained regularly. They went to a Mr. Oval Damron, who was prosecutor in the county at the time, but he didn’t take any action. He knew about the problem, but he didn’t take any action.

During the four years between ’68 and ’72, there had been plenty of attention placed on the potential hazards of the dam collapsing and no one from the government took any decisive action, even though there was some law on the books that should have protected those people.

I remember Jack telling me that one of the lessons he learned was to “listen to the people,” and I’ve tried to remember that as I’ve continued my career as a reporter. Unfortunately, even in my lifetime, there have been multiple disasters where it was clear warnings were raised, but nobody in any position of power listened. That goes for the Sago Mine Disaster, where scientists pointed to the possibility of a lightning strike causing a coal-mine explosion, to Upper Big Branch, where workers tried to tell Massey mine managers that the operation was a disaster waiting to happen.

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Clay Mullins, brother of deceased Upper Big Branch coal miner Rex Mullins, is surrounded by members of the media Thursday, Feb. 23, 2012 following a family meeting with investigators in Beckley, W.Va. (AP Photo/Jeff Gentner)

When I drove the West Virginia Turnpike to Beckley yesterday, I watched a long coal train chugging along the CSX line and saw the huge river loadouts near Chelyan. There was still the smallest bit of mist clinging to the ridges on both sides of the highway. By the time I headed back to Charleston — after a day of waiting, watching television reporters chase widows to their cars, and quizzing state mine inspectors about why they didn’t prevent the worst U.S. coal-mining disaster in nearly 40 years — night had fallen.

Back in December, when MSHA released its UBB investigation report, I wrote about how I felt as I played my little role in the eternal Appalachian coalfield play that surrounds the seemingly never-ending string of coal-mining disasters:

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.

Before the state’s report was released, I had started on a different blog post, with some thoughts on a series of news stories about Upper Big Branch and the ongoing mine safety debate at the West Virginia Legislature. Here’s what I had written:

I was just talking with a coworker about the interesting juxtaposition of stories on the front page of today’s Gazette.

At the top left-hand column was Phil Kabler’s story, Bill to improve mine safety on hold, which describes how legislative leaders and Gov. Earl Ray Tomblin put their already very mild mine safety legislation on hold until they can get the coal industry to agree to its provisions.

Right below that was my story, 40 years after Buffalo Creek, coal-dam questions remain, about another anniversary of yet another coal industry disaster that caused death and destruction in our state’s coalfields.

It made me think about some words I saw earlier in the week, when I re-read Disaster on Buffalo Creek: A Citizens’ Report on Criminal Negligence in a West Virginia Mining Community, which said:

For the Buffalo Creek disaster, like the recent coal mine fire tragedies at Farmington, West Virginia, and at Hyden, Kentucky, could have been prevented — it need not have happened. Clearly and simply, people living downstream from the Buffalo Mining Company’s coal refuse dam at Saunders were the victims of gross negligence.

In Appalachia — sometimes known as “the last white colony of western civilization” — absentee owners of the region’s vast energy resources and their subservient homebred and imported politicians time and again are to blame for mass death and destruction. Time and again, those most at fault throw up smokescreens to obscure their responsibility.

Following the fire and explosion at Consol #9 Mine in 1968 which killed 78 men, Governor Hulett Smith shrugged apologetically declaring, “This is one of the hazards of mining.” Smith did not add that the Consolidation Coal Company was guilty of numerous violations of the mine safety laws in this mine. Another governor, Cecil Underwood, performed so well for the Island Creek Coal Company following its Holden # 22 mine disaster 5 in 1960 that he was elevated to the position of executive vice president of the company immediately upon leaving the governorship.

Aside from the attempted whitewashing of the more spectacular mass murders, our governors never decry the terrible fact that more than 120,000 coal miners have been killed in the coal mining industry since its beginning, that one out of every ten coal miners is injured each year and that an estimated one-half of the coal mining work force becomes crippled or incapacitated by the insidious black lung disease.

In this deadly drama the coal operators’ script — placing profits before people — has been followed line-by-line by some of our political leaders. In the case at hand, the center stage characters are behaving true-to-form.

All of this really hits home if you check in with our website and read this morning’s story, UBB mine manager charged with conspiracy, which describes the criminal charges filed today against Massey mine superintendent Gary May.

Gov. Tomblin and other West Virginia political leaders are fond of attacking the federal government in general and the Obama administration most specifically, and demanding that federal officials stay out of the coal industry’s business.  But what about following up on the worst U.S. coal-mining disaster in nearly 40 years? U.S. Attorney Booth Goodwin (appointed that job by President Obama) is busy trying to work his way up the corporate ladder to bring those responsible for 29 deaths to justice. At the other end of town at the state Capitol, Gov. Tomblin and legislative leaders wouldn’t dare try to pass a piece of coal-mine safety legislation that industry lobbyists haven’t agreed to.

Ironically, one of the provisions of the current bill that industry officials oppose is described by Phil Kabler this way:

Requiring mine operators or ranking supervisors to sign off on mine safety reports.

And one of the specific charges against Gary May is that he:

… Ordered a known person to falsify examination record books by omitting from the record books a hazardous condition, to wit, water of a depth that made it unsafe to travel a certain area of the mine.

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Family members of the coal miners killed in the April 2010 explosion at the Upper Big Branch mine leave after a meeting where state mine safety officials released the results of their investigation into the explosion. Gazette photo by Chris Dorst.

I spent a long time trying to come up with one good word to describe the tone and wording of the West Virginia Office of Miners’ Health, Safety and Training’s report on its investigation of the Upper Big Branch Mine Disaster. But my friend Howard Berkes over at NPR seems to have hit it about right with his description:

West Virginia’s Office of Miners’ Health, Safety and Training has issued what is now the fourth investigative report on the April, 2010, Upper Big Branch mine explosion. It largely agrees with the earlier reviews, but in language that’s tepid in comparison.

The state mine safety agency echoes the earlier federal, independent and union reports in pinning the explosion on uncontrolled methane gas, excessive and explosive coal dust, faulty safety systems and management failures.

“All these defense mechanisms failed at [Upper Big Branch],” the report’s summary says, in its strongest language. “The removal of hazards and violations identified during required mine examinations were not corrected in a timely manner.”

Howard points out that the report summary — the only document that most of the media will ever read — doesn’t contain one important word: Massey.

In my Gazette print story, I tried to describe the differences between the state’s report and previous investigation reports issued by an independent team, the United Mine Workers and the federal Mine Safety and Health Administration:

McAteer’s teams blasted Massey Energy’s management of Upper Big Branch as “profoundly reckless.” The UMW’s report was titled, “Industrial Homicide.” MSHA said Massey “routinely ignored obvious safety hazards” that led to “the tragic death of 29 miners.”

State investigators included no such condemnations of the mine’s safety practices or denunciations of its corporate management in their report.

The state report includes extensive discussion of the interplay between coal seams, sandstone and accumulations of plant fossils. Investigators attached two detailed appendices describing local geology.

But the state’s report includes only a few paragraphs that vaguely summarize the violations inspectors found, with no specific discussion of what role those violations played in the disaster.

And when outlining general problems that inspectors found at Upper Big Branch after the explosion, state officials used much more measured language.

For example, the state report concurred with other investigations that found one contributing factor was the failure to spread adequate amounts of crushed limestone, or “rock dust,” to keep coal dust from exploding.

But state investigators explained that, “Based on the available information and records, it is believed that some areas would be rock-dust deficient at any given time. Mines should be pro-active in the rock-dust program instead of waiting until rock-dust deficient locations have been identified.”

The state report also agreed with previous reviews that found mine managers at Upper Big Branch frequently did not ensure that safety hazards were documented in required record books and promptly fixed.

In its report, the state agency explained such problems by saying, “during the investigation, testimony varied as to how workers performed their fireboss and supervisory duties. It is impossible to draw solid conclusions other than that additional training should have been given to assist firebosses and supervisors in their understanding of the plans and importance of following all approved plans relating to their specific areas of responsibility.”

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We haven’t seen any comments from our friends at Alpha Natural Resources on yesterday’s release of the state report on the Upper Big Branch Mine Disaster. So we still don’t know if Alpha CEO Kevin Crutchfield thinks the deaths of 29 coal miners on April 5, 2010, was — as Massey officials contended — an “Act of God.”

But here’s some interesting news out this morning from Alpha, with the release of its latest quarterly financial report:

Alpha Natural Resources, Inc. (NYSE: ANR), a leading U.S. coal producer, reported a fourth quarter 2011 net loss of $733.3 million or $3.34 per diluted share compared to net income of $10.8 million or $0.09 per diluted share in the fourth quarter of 2010.

Alpha explained:

The Company recorded a $745 million goodwill impairment charge in the fourth quarter of 2011.  This non-cash charge resulted from the Company’s annual goodwill impairment testing required under generally accepted accounting principles and related to the Company’s Eastern Coal Operations reporting segment.  During the fourth quarter, domestic and international coal markets declined as a result of slowing economic activity, fuel switching for electricity generation due to low priced natural gas, and recently effective and anticipated U.S. environmental regulations that discourage the use of coal.  As a result of these changes to the near-term market outlook as well as updated projections of production volumes and cash operating costs, and the Company’s market valuation as of the goodwill testing date, the implied fair value of goodwill at several reporting units was determined to be less than its carrying value, thereby necessitating the impairment charge.  This non-cash charge will not impact the Company’s ongoing business operations nor will it affect liquidity, cash flow from operations or financial covenant compliance for any of the Company’s outstanding debt.

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We broke the news earlier this morning on the Gazette’s website that federal prosecutors have charged one of the superintendents of the Upper Big Branch with conspiracy in what appears to be the next step toward moving up the chain of Massey Energy management personnel that played a role on the conditions that led to that terrible April 5, 2010, explosion that killed 29 miners.

As we reported:

U.S. Attorney Booth Goodwin alleged that Gary May plotted “with others known and unknown” to put coal production ahead of workers protection and then cover up serious safety violations on numerous occasions during the two years prior to the April 5, 2010, explosion that killed 29 miners.

May is accused of taking part in a scheme to provide advance warning of government inspections and then conceal violations before federal agents could make it into working sections of the sprawling Raleigh County mine.

Also, May is alleged to have ordered an unnamed person to falsify mine examination records by omitting a hazardous condition required to be reported and then repaired.

Prosecutors further allege that May, after learning that federal Mine Safety and Health Administration inspectors were about to sample the level of coal dust in the mine, “surreptitiously redirected” additional fresh air to the area to conceal actual working conditions in the mine.

Goodwin and Assistant U.S. Attorney Steve Ruby also allege that May “caused and ordered” the disabling of a methane monitor on a continuous mining machine at Upper Big Branch less than two months before the deadly blast.

Goodwin said in a statement:

Today’s charge is a significant step in the investigation of events at the Upper Big Branch mine. Our investigation of those events remains ongoing.

You can read the charges against May yourself here. But who is Gary May and how important is this development in the sprawling criminal probe of the worst U.S. coal-mining disaster in nearly 40 years?

Well, let’s be clear that this prosecution isn’t exactly like bringing criminal charges against then-Massey CEO Don Blankenship. Investigators certainly don’t believe that May was the final word on working conditions, safety problems, or the push to put production first at Upper Big Branch.

At the time of the disaster, May was one of two mine superintendents at Upper Big Branch, and he wasn’t in charge of the areas of the mine where the explosion is believed to have occurred. Here’s how this morning’s court filing describes him:

Defendant GARY MAY (“MAY”) began working at UBB in or about February 2008 as a Mine Foreman. In or about October 2009, MAY was promoted to Mine Superintendent, and he held that position through and including April 5, 2010. During his time as Mine Foreman at UBB, MAY exercised control and authority over, at various times, at least three room-and-pillar mining sections and a longwall mining section. During his time as Superintendent at UBB, MAY exercised control and authority over a portion of the Mine that included, at various times, two room-and-pillar mining sections and an area that was being prepared for longwall mining on or around April 5, 2010, when an explosion at UBB interrupted that preparation.

A management chart prepared by U.S. Mine Safety and Health Administration investigators (See page 13) put May and his fellow superintendent, Everett Hager, below Performance Coal Co. President Chris Blanchard, vice president Jamie Ferguson and mine general manager Wayne Persinger in the mine’s supervisory structure. And of course, those Performance Coal officials were all below the level of corporate officers and executives at the Massey Energy parent company.

But that hardly means that May is a nobody. And certainly, the federal criminal prosecution after the deaths of two miners at Massey’s Aracoma Alma No. 1 Mine in 2006 never got above the section foreman level. After the terrible disaster at the Crandall Canyon Mine in Utah, no criminal charges have ever been brought, despite reports from Congress outlining how such prosecutions could have been handled (see here and here).

As best I can tell, the last time a coal-mining disaster criminal probe got anywhere near charges against a mine superintendent, it was after the deaths of eight workers at Southmountain Coal Co. in Virginia back in 1992.  Mine operator William Ridley Elkins was sentenced to six months in jail. Elkins pleaded guilty to lying on an MSHA legal identify form to conceal his own role in running the Southmountain No. 3 Mine.  Mine superintendent Freddie Carl Deatherage was sentenced to serve 60 days of community confinement, followed by 12 months of supervised release, and pay a $3,000 fine.

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What to look for in state’s Upper Big Branch report

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On Thursday, the West Virginia Office of Miners’ Health, Safety and Training will issue the report of its investigation of the April 5, 2010, explosion that killed 29 coal miners at Massey Energy’s Upper Big Branch Mine.

Will there be any news in it?

That’s a perfectly reasonable question, given that we’ve already had comprehensive reports from the state’s independent investigation team, headed by Davitt McAteer, and the U.S. Mine Safety and Health Administration, along with a separate report from safety experts at the United Mine Workers of America. Together, the those three reports spanned 463 pages (not counting appendices). Even for the worst U.S. coal-mining disaster in nearly 40 years, what else could there be left to say?

Well, there are some things that I’ll be looking for when the report is released.

First, will the conclusions of the state OMHST investigation team mirror or closely follow those of the McAteer team, MSHA and the UMWA, all of whom blamed a long list of major safety violations — advance notice of inspections, an illegal buildup of coal dust, inadequate ventilation and poorly maintained mining equipment — for the disaster? Word from within the agency is that some state investigators who have other interesting ideas were especially curious about Massey Energy’s “Act of God” theory about a huge flood of methane gas, so it will be interesting to see how much detail the state report goes into about that possibility — which other investigators have ruled out in pretty strong terms.

Second, if state investigators agreed with these previous investigations, what kind of violations will they issue and what level of monetary penalties will they assess? Under West Virginia law, mine operators may be fined only up to $3,000 for most violations. State inspectors can seek fines of between $5,000 to $10,000 for violations that involve fatalities or serious injuries. And, the state is required to impose a fine of $100,000 if it finds that a mine operator failed to properly report a serious accident within 15 minutes. Will state investigators conclude Massey failed to comply with that reporting requirement?

Third, and perhaps most interestingly, state mine safety inspectors have the authority to issue civil citations and impose administrative fines on individual miners and mine managers.  This is quite unlike the federal system, where MSHA can only cite individual miners for violation of the rules concerning smoking and smoking articles, and I’m not sure the federal provision for imposing fines on individual agents the most widely used section of law.

The fines for individuals allowed under state law aren’t very big — just $250 — but the state can also seek to suspend or revoke a mining license or foreman’s certificate for more serious violations.  And this is something the state seems to have been making a more aggressive effort to use this authority.

After the deaths of coal miners Don Bragg and Ellery Hatfield in the Aracoma Mine fire in January 2006, the state agency went after some of the men who were running the Aracoma mine (subscription required), including alleging that some of them knew ahead of time (subscription required) about a missing ventilation wall that was a key cause of the deaths. Two of the foremen cited for state violations later faced federal prosecution, as did three other Aracoma foremen. And three others faced at least temporary suspension of their mining licenses (though, as has been noted before, no one responsible for violations at Aracoma went to jail).

Individual citations at Upper Big Branch, if any are issued by the state, would provide some additional details about who investigators — and perhaps later federal prosecutors — believe was responsible for the unsafe conditions that to the loss of 29 miners’ lives. Stay tuned …

Friday roundup, Feb. 17, 2012

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Paramilitary policemen guard a tunnel entrance at the Hongfa Coal Mine where 15 miners were killed and three others hurt when the mine carriages they were in plunged into a tunnel,  in Nanyang township, Leiyang city, in southern China’s Hunan province, Thursday, Feb. 16, 2012.  (AP Photo)

As the photo above indicates, there’s more bad news from China. Here’s the China Daily report:

Fifteen miners were killed, and three others injured, following a mine-car crash Thursday morning in central China’s Hunan province, local authorities said.

The accident happened around 12:30 am in Nanyang township of Leiyang city, after six cars of an eight-car carriage carrying 18 miners unhooked and plunged into a tunnel rapidly in the Hongfa Coal Mine, according to the Hunan Provincial Administration of Coal Mine Safety.

The 15 were killed instantly in the crash, while the other three were injured after jumping or being thrown out of the car, according to rescuers.


An initial probe found that the miners had violated safety rules by riding in the mine cars, which are designed to transport coal only. Police have taken custody of the coal mine’s managers.

Interesting coverage this week about coal-fired power plants and Appalachian coal markets, including this analysis from my buddy Ken Silverstein, writing for

While Obama’s team thinks old coal should be tossed out or cleaned up, it is also donning shale gas the new fuel champion. But if you think the Environmental Protection Agency is the primary source of coal’s troubles, think again. Abundant shale gas supplies are one reason. But so too are diminishing reserves, all of which take more labor and more money to dig out.

Blaming coal’s woes on the proposed environmental regulations tells only a fraction of the story. The rest can be explained by competition from other coal states as well as from cheaper and cleaner fuels.

Taylor Kuykendall over at The State Journal picked up on an interesting study:

While environmental regulations have received the bulk of attention when it comes time to close a coal-fired plant, closure are generally known to be a result of multiple factors. A new study conducted by Susan Tierney managing principal at the Analysis group, an economic, financial and strategy consultant group, finds market factors, not the Environmental Protection Agency, have driven coal plant closures.

“Putting aside the political context of the current debate, a closer examination of the facts reveals that the recent retirement announcements are part of a longer‐term trend that has been affecting both existing coal plants and many proposals to build new ones,” Tierney wrote. “The sharp decline in natural gas prices, the rising cost of coal and reduced demand for electricity are all contributing factors in the decisions to retire some of the country’s oldest coal‐fired generating units. These trends started well before EPA issued its new air pollution rules.”

While environmental regulations do place “financial pressures” on coal operators, Tierney wrote, power market fundamentals, particularly thin gas-to-coal price differentials and low electricity demand are contributing “significantly” to retirement of marginal plants. Those same factors, Tierney wrote, is likely to put continued pressure on coal-generated electricity.

And The Economist reported (in part of a series of articles):

The courts, in fact, are the source of the worst uncertainty surrounding environmental regulation. They have repeatedly forced the EPA to revise its rules, rejecting decisions reached under both Mr Obama and his predecessors. It is now assumed, says Kyle Danish of Van Ness Feldman, a law firm, that any important rule issued by the EPA will prompt multiple legal challenges. It does not help that the Clean Air Act does not allow the cost of pollution controls to be taken into account when setting certain standards. Nor is it really designed to handle so pervasive and subtle a pollutant as carbon dioxide—a flaw the Obama administration readily concedes.

UPDATED:  This just in — a pretty devastating critique of the Economist stuff from The Center for Progressive Reform saying, among other things:

This call for stripping laws or regulations of clear mandates, championed for decades by Philip Howard, is a prescription for giving up our existing public protections for some future, nebulous protection system with no clear teeth. And it would lead to, among other things, a storm of action in the courts, which would have to spend years interpreting what the broad rules meant. That should be troubling for The Economist, which says it’s worried about courts interpreting rules: “The courts, in fact, are the source of the worst uncertainty surrounding environmental regulation.”

Greenpeace activists protesting the destruction and pollution caused by coal at the Progress Asheville Power Station hang with a banner at the plant February 13, 2012.  Photo by Les Stone/Greenpeace

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Corps brings back streamlined strip-mine permits

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There’s been an interesting development this week on mountaintop removal that I’m not sure most people have caught onto yet … Here’s the press release issued yesterday by the U.S. Army Corps of Engineers:

The U.S. Army Corps of Engineers (USACE) announced today revised and renewed nationwide permits necessary for work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The permits are necessary to replace existing permits, which expire on March 18, 2012. The new NWPs will take effect March 19, 2012.

Most specifically:

NWP 21 – The NWP 21 for Surface Coal Mining Activities is revised to impose new limits on stream impacts that may be authorized, consistent with the other NWPs, and prohibits valley fills under this NWP. This updated permit was based on extensive feedback from the public and key stakeholders and leverages important flexibilities while also taking steps to protect wetlands. Updated permits will only be necessary for new or expanded activities. Operators that relied upon previously verified surface coal mining authorizations, but have not yet completed work in waters of the U.S., may request re-verification under the 2012 NWP 21 of all previously authorized activities.

Now you may remember that these are the “streamlined” permits for strip-mines and other activities — the same process that was struck nearly three years ago by Chief U.S. District Judge Joseph R. Goodwin and that the Obama administration promised it was going to stop using for surface coal mining in Appalachia.

This new version of NWP 21 is different. It will include some limits on the surface coal mining activities that can be authorized under it. Those limits are 1/2-acre and 300 linear feet of waters filled. Corps officials explained:

The 1/2-acre and 300 linear foot limits will substantially reduce the amount of stream bed and other waters lost as a result of activities authorized by this NWP, and limit this NWP to minor fills associated with surface coal mining activities, such as the construction of sediment ponds.

Interestingly, though, the agency also said:

However, that 300 linear foot limit may be waived by the district engineer if the proposed activity involves filling or excavating intermittent or ephemeral stream beds and the district engineer determines, in writing, that that activity will result in minimal individual and cumulative adverse effects on the aquatic environment. Agency coordination for proposed losses of greater than 300 linear feet of intermittent or ephemeral stream bed is intended to provide information that will assist the district engineer in making his or her minimal adverse effects determination.

I was getting a little worried that maybe Sen. Joe Manchin, D-W.Va., wasn’t feeling well. Really. I mean, he let Sen. Jay Rockefeller get out the door first in the race to criticize coal’s treatment in President Obama’s new budget proposal for the 2013 financial year.

But I should have known Sen. Manchin wouldn’t disappoint … here’s the statement just issued by his usually quicker-on-the-draw press office:

U.S. Senator Joe Manchin (D-W.Va.) today grilled U.S. Energy Secretary Steven Chu and the Obama Administration about picking winners and losers when it comes to research funding for critical domestic energy resources. Senator Manchin questioned how the Obama Administration can claim they’re advocating an “all of the above” energy strategy and at the same time cut funding for research into technologies that will help the country use our most affordable and abundant domestic energy source in a more clean and efficient way.

Senator Manchin has often explained his pride in the fact that West Virginia uses all its natural resources to create energy, and he believes the Administration should not short-change any single resource, particularly coal.

“I can’t figure out the rationale … when you cut funding to resources that will continue to provide the energy we’re dependent upon by your own estimation. It doesn’t make sense,” Senator Manchin said. “It doesn’t make any sense at all that we can’t do it better, cleaner, and work together.”

According to the U.S. Energy Information Agency, coal will continue to be the leading source of electricity in the United States for decades to come.

As of 2010, 45 percent of the nation’s electricity was coming from coal, 24 percent from natural gas, 20 percent from nuclear, 10 percent from renewables, and one percent from oil and other liquids. The Department of Energy projects that fossil energy – including coal, natural gas, and oil – will provide 67 percent of our nation’s electricity in 2035.

OK — now keep in mind, folks, that what Sen. Manchin once again conveniently leaves out when he rattles off these DOE statistics is that coal production in his region of Appalachian (especially in Central Appalachia, where most mountaintop removal is done) is forecast to be cut significantly over the next quarter-century. If he talked about that, Sen. Manchin would perhaps have to concede he hasn’t done much work to plan for what happens when the jobs disappear because of that lost production.

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Pam Napper, mother of deceased coal miner Josh Napper, holds Josh’s daughter Jenna Leigh Napper, 20 months, Wednesday, April 7, 2010 at a candlelight vigil in Cabin Creek, W.Va. Josh Napper was among the 29 miners killed, along with his uncle Timmy Davis Sr. and his cousin Cory Davis at an explosion at Massey Energy’s Upper Big Branch Coal Mine in Montcoal, W.Va.  (AP Photo/Jeff Gentner)

It’s so easy for the rest of us to forget what the Upper Big Branch Mine Disaster did to 29 families … the photographs of widows and orphans, even the names of all of the dead miners, it all fades too easily from memory. As the late Sen. Robert C. Byrd said:

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.

And so it is here in Charleston. My friend Rick Wilson, one of the Gazette’s contributing columnists took on the issue this morning of how in the world legislation that was supposed to have been inspired by the worst U.S. coal-mining disaster in a generation — an explosion that had nothing at all to do with drugs or alcohol in the mineshas somehow become the vehicle for the coal industry’s lobbyists to push their mandate of drug testing (but no drug treatment) for our state’s coal miners. He writes:

… Given the current leadership of the U.S. House of Representatives, Congress is not going to pass any substantial mine safety legislation no matter how many bodies pile up. It is devoted, with a purity seldom seen in the realms of love or religion, to protecting the interests of corporations and the very wealthy.

If any action is going to be taken to protect miners, it’s going to come down to our Legislature, where an example may be set that will eventually lead to federal action. So it is good news.

Now the bad news. One of the mine safety bills under consideration, SB 448, introduced by the governor, seems to be more concerned with drug testing than mine safety.

Don’t get me wrong. Substance abuse is a serious problem in West Virginia, in Appalachia and around the country. And I’m sure that most people would prefer not to mine coal or engage in other dangerous occupations with people under the influence. But such issues would best be addressed in separate legislation where they could be considered on their merits. They shouldn’t be allowed to divert attention from the issue at hand.

Rick adds in conclusion:

… It would be better to focus legislation on addressing the issues that we know have really led to mining disasters.

On the way to work this morning, I heard our buddy Hoppy Kercheval opining about how Gov. Earl Ray Tomblin and legislative leaders “are trying to settle the differences remaining in  “a comprehensive coal mine safety bill.”

A comprehensive mine safety bill? Is there some new piece of legislation that I’m not aware of? What’s the bill number, guys?

Sure, there are some things in bills proposed by both Gov. Tomblin and House Speaker Rick Thompson that mine safety advocates agree would be good. Who is going to argue with more and better training for miners or protecting safety whistle-blowers?

But I’ve yet to hear anyone who isn’t sponsoring one of these bills and knows much about coal-mine safety sound all too excited, or convinced  that either piece of legislation will actually put West Virginia out in front nationally or help ensure we never have another mine disaster.

Many of the things in these bills are already required by federal law, or are already being done by the state, or are really just picking around the edges, without making major reforms. Some examples:

Rock dusting — Proposed legislation would toughen the requirement for mine operators to spread crushed limestone in underground mines, to control the buildup of explosive coal dust like that most experts say caused Upper Big Branch. Mine operators are already required to do this, under an emergency regulation put in place by the U.S. Mine Safety and Health Administration, and by an executive order issued by then-Gov. Joe Manchin not long after the UBB mine blew up. (Not for nothing, but these changes were long overdue, having been recommended by the National Institute for Occupational Safety and Health for years.)

Independent investigation panel — Proponents of Speaker Thompson’s bill make much of this provision, saying the panel would review major mining accidents and recommend needed changes in state law and regulations. But isn’t that what the state Board of Coal Mine Health and Safety – composed of representatives from the United Mine Workers and the West Virginia Coal Association — is already supposed to be doing after every single one of the state’s fatalities?

Enhanced fines for safety violations — Nothing wrong with the idea of increasing the state Office of Miners’ Health, Safety and Training’s ability to issue civil penalties for violations its inspectors cite. But the maximum under Speaker Thompson’s bill — $10,000 per violation — really doesn’t amount to much, when you consider that the maximum fine under federal law is $70,000 for most violations and $220,000 for violations MSHA deems to be “flagrant.”

New criminal offenses and penalties — Language that would make it a felony under state law — with a penalty of up to five years in prison — to provide advance notice of government inspections is a step forward from federal law, where advance notice is a misdemeanor punishable with only up to six months in jail. But seriously now, when is the last time that a prosecuting attorney in West Virginia charged someone with a crime related to coal-mine safety violations? Does anyone really see this particular provision ever being used?

Giving families their say — As has been discussed before, Speaker Thompson’s father died in a mining accident. So he’s got a personal interest in trying to see families who go through that treated fairly. Language that would mandate that families be able to appoint a representative to take part in mining death investigations is a step forward in that area. Of course, the coal lobby is vigorously opposing that mandate. But if the goal is more transparency, both for families and the public, why don’t legislative leaders and the governor follow the example that then-Gov. Manchin set after Sago and require a public hearing into all mining deaths? The Obama administration promised public hearings into Upper Big Branch, but seems to have forgotten that promise. A state-mandated public investigation into all coal-mining deaths would put West Virginia ahead of what anyone else in this country is doing in this area.

— Methane monitors with shut-0ff devices on mining equipment — Proposed language would make West Virginia’s requirements tougher than current federal law. MSHA rules require automatic shut-off of equipment when methane reaches 2.0 percent, while the proposal is to make West Virginia law 1.25 percent. Both numbers are well below the explosive range for methane of 5 to 15 percent. So if the goal here is to really do something about methane problems in underground mines, why don’t lawmakers call down to the federal building and talk to U.S. Attorney Booth Goodwin about his agency’s deal with Alpha Natural Resources? Under that settlement, Alpha must install new, digital monitoring systems in all of its underground mines to continuously monitor ventilation to ensure safe levels of methane and proper movement of fresh air.

Why aren’t lawmakers and the governor acting on the recommendation from independent investigator Davitt McAteer to require all mine operators across West Virginia to do what Goodwin has required Alpha to do? For that matter, why aren’t they taking McAteer’s recommendation to also force the state’s entire coal industry to do as Alpha now must and begin using state-of-the-art explosibility meters to determine if safe levels of “rock dust” have been applied underground? Why don’t they go another step ahead of the federal government, and move on something MSHA has proposed, but hasn’t yet required: Use of “proximity detection” devices that would help keep miners from being killed or hurt by fast-moving underground mining equipment?

Nearly a year ago, when McAteer released his report on Upper Big Branch, Gov. Tomblin couldn’t have been more clear about his intentions, saying in a prepared statement:

… All West Virginians have my commitment that we will do all we can to make sure that a disaster like this never happens again.

House Speaker Thompson, when his legislation was introduced last month, said:

… I feel a deep, personal need to do everything we can to ensure that the laws are in place to prevent another mine tragedy like the UBB disaster.

If reports from the Capitol are correct, the “comprehensive mine safety legislation” Hoppy mentioned this morning is headed for the sort of deal that ends with a big bill-signing ceremony in the governor’s office, with Gov. Tomblin surrounded by lawmakers, all mugging for the cameras and congratulating each other on what a great job they’ve done.

I wonder if any of them will be thinking about the letter that 25-year-old Josh Napper wrote to his fiance and daughter before he got blow up just for going to work one morning at the Upper Big Branch Mine:

Dear Mommy and Jenna, if anything happens to me, I will be looking down from heaven. If you take care of my baby girl, watch over (her), tell her all the good things about her daddy. She was so cute and funny. She was my little peanut. And Jennifer, I know things have never been the greatest sometimes, but I just want you to know I love you and I care about you.

Will West Virginia’s elected leaders be able to tell Napper’s little girl that they truly did everything they could to make sure no other coal miners’ kids grow up without their fathers?

UPDATED:HERE’S today’s Gazette print story about this study.

As noted last night in Coal Tattoo’s comments section, a Yale University researcher hired by the National Mining Association has published the first peer-reviewed paper that offers a response to the 20 papers that West Virginia University’s Michael Hendryx has produced over the last four years exploring the links between living near mountaintop removal mines and facing increased risks of health problems, including cancer and birth defects.

The paper, by Dr. Jonathan Borak and others, is called “Mortality Disparities in Appalachia: Reassessment of Major Risk Factors.”  It’s published in this month’s Journal of Occupational and Environmental Medicine, with its abstract available for free here. As frequent Coal Tattoo reader and commenter Casey pointed out, the industry consulting group Environmental Resources Management Consulting has helpfully posted the entire paper on its company website.

Here’s the abstract, which describes the study’s objective, methods, results and conclusions:

Objective: To determine the predictive value of coal mining and other risk factors for explaining disproportionately high mortality rates across Appalachia.

Method: Mortality and covariate data were obtained from publicly available databases for 2000 to 2004. Analysis employed ordinary least square multiple linear regression with age-adjusted mortality as the dependent variable.

Results: Age-adjusted all-cause mortality was independently related to Poverty Rate, Median Household Income, Percent High School Graduates, Rural–Urban Location, Obesity, Sex, and Race/Ethnicity, but not Unemployment Rate, Percent Uninsured, Percent College Graduates, Physician Supply, Smoking, Diabetes, or Coal Mining.

Conclusions: Coal mining is not per se an independent risk factor for increased mortality in Appalachia. Nevertheless, our results underscore the substantial economic and cultural disadvantages that adversely impact health in Appalachia, especially in the coal-mining areas of Central Appalachia.

Now, we’ve yet to hear anything from the National Mining Association trumpeting the findings. I have to express some shock that it hasn’t shown up on West Virginia MetroNews or in the Daily Mail yet. Maybe the NMA has learned from its previous problems attacking Dr. Hendryx, like the time the industry’s law firm tried to suggest that any increased rate of birth defects in Appalachia was caused by inbreeding.

Some readers may recall that about two years ago, the industry lobby went kind of crazy about a preliminary analysis that Dr. Borak did for them, with the NMA’s PR outfit “tweeting”:

Yale professor debunks bogus studies on the health effects of Appalachian surface mining.

When asked about it, Dr. Borak said his studies did no such thing and that he had never referred to the work by WVU’s Hendryx as “bogus.” The National Mining Association retreated, and apologized for its PR tactics.

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