‘Tepid’ state UBB report points to weak W.Va. law

February 24, 2012 by Ken Ward Jr.

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.”

Watch Miners’ Families ‘Encouraged’ by Prosecutors’ Moves on PBS. See more from PBS NewsHour.

In an appearance on the PBS Newshour, Howard had some other interesting things to say about the developing Upper Big Branch story, based on his discussions with Upper Big Branch families:

… They’re encouraged by the fact that the U.S. attorney in the Southern District of West Virginia has filed this charge against Gary May. They’re encouraged by the idea that they’re trying to reach higher into the upper management ranks of Massey Energy.

And what they say to me over and over and over again is that justice won’t be done here until somebody goes to jail. And if somebody does go to jail, it will be rare. And if somebody at a high level goes to jail, it will be even rarer.

Mining company officials don’t go to jail for killing coal miners. It rarely happens. Prosecutors seem to be working with a way of trying to get at higher-level officials. And I know families will be relieved and feel that justice has been done if higher-level officials are charged.

And in his own story, Howard connected the dots between the state’s UBB report on the stalled legislative discussions of a new mine safety bill up at the West Virginia statehouse:

In one of two complaints about inadequate state laws, the report notes that “the mine foreman is the highest ranking official that current state law addresses.”

Foremen are low-ranking managers in coal mines and are often implementing the policies and orders of mine superintendants and company executives.

“Individuals involved in the day to day decision making at the mine must be held accountable regardless of their title,” the report says.

A bill before the West Virginia legislature would do precisely that but, as The Charleston Gazette has reported, it and other mine safety reforms have stalled in the face of opposition from the mining industry, a major political force in the state.

Just Wednesday, federal prosecutors announced a criminal conspiracy charge against Gary May, an Upper Big Branch mine superintendant. May is accused of conspiring with others to “hamper, hinder, impede, and obstruct the lawful enforcement … of mine health and safety laws” at the mine.

Under West Virginia law, May ranks too high to be cited for state mine safety violations.

The state’s Upper Big Branch report also faults ventilation system failures at the mine, again echoing earlier reports. But special note is made of another weakness in West Virginia law.

The state mine safety agency “currently has insufficient statutory language to regulate the way that coal mines are ventilated,” the report says. This means that regulators don’t have the authority they believe they need to regulate a primary safety system in a coal mine. Proper ventilation sweeps away explosive and naturally-occurring methane gas and prevents concentrations that can ignite and explode.

Now, despite the fairly restrained language of their report, some state mine safety officials didn’t exactly mince words when they were pressed to actually talk about Massey Energy and former Massey CEO Don Blankenship.  Several times yesterday, state agency director C.A. Phillips and chief UBB investigator Bill Tucker talked about their belief that whoever makes day-to-day decisions about how mines are operated should be held accountable, regardless of their title or position within a company.

During the audience Q and A portion of last night’s meeting of the state Board of Coal Mine Health and Safety, I asked Tucker how high up in Massey’s management structure his definition would take things, given what his team learned about how the Upper Big Branch Mine was run. Tucker said:

My take would be Don Blankenship on down. There were people higher up than personnel at the mine who made the decisions about how this mine was run.

I reminded Tucker that other reports on Upper Big Branch have clearly spelled out the conclusion that Upper Big Branch was operated in a manner that put coal production ahead of worker safety, and asked him if he agreed. In answering, Tucker harkened back to Massey’s much-touted “S-1” safety program:

The S-1 Program — at this mine, I don’t think that was safety first.

It’s pretty clear that neither of the major mine safety bills introduced this session would really put West Virginia at the forefront of mine safety in this country, and neither would they do everything that could be done to prevent another Upper Big Branch Disaster. Just read my previous analysis — Will West Virginia lead on coal-mine safety? — for a rundown of all of the reforms that aren’t even discussed by the Legislature or the statehouse press corps. Even the fairly “tepid”, to borrow Howard’s word — changes proposed by legislative leaders and the United Mine Workers are stalled because Gov. Tomblin wants to be sure they’re acceptable to the industry lobby.

No wonder we see the wording in Gov. Tomblin’s public statements about his mine safety agenda have changed over the months … just to offer one example …

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 yesterday, 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.

In case you missed it, we’ve gone from doing “all we can” and doing “all that is necessary” to passing “meaningful mine safety legislation.”

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