Coal Tattoo

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 …