Coal Tattoo

Howard Berkes has a bit of a scoop over on NPR’s website, with a story describing some of the conclusions of a previously secret Inspector General’s report on the way the federal Mine Safety and Health Administration handled its investigation of the Upper Big Branch Mine Disaster.

Under the headline Mine Safety Officials Ditched Safety Citation Fearing Congressional Scrutiny, Howard reports:

NPR has obtained a report from the Inspector General of the Labor Department that describes an incident last year in which the nation’s coal mine safety chief and agency lawyers withdrew a legitimate safety citation and order “not based upon the merits” but “to avoid the appearance of retaliation and possible Congressional scrutiny.”

The safety citation and order involved a consultant for Massey Energy and was issued during the Mine Safety and Health Administration (MSHA) investigation of the 2010 Upper Big Branch coal mine disaster in West Virginia. 29 mine workers died in the blast.

The report says that Kevin Stricklin, the Administrator of Coal Mine Safety and Health at MSHA, “expressed some regret about ever having agreed to vacate the citation and order, because he believes that they were based upon legitimate safety concerns…”

The safety violation involved a contentious relationship between Massey Energy, the owner of the Upper Big Branch mine at the time, MSHA investigators and representatives of the United Mineworkers of America (UMWA), who worked side by side conducting their own investigations of the tragedy.

Now, this all goes back to a series of incidents, including one in which a consultant hired by Massey lawyers to investigate the mine disaster was cited and ordered out of the underground mine because he was alleged not to have completed proper safety training — an issue that Massey officials issued a press release about and made targeted in the company’s own report on the April 5, 2010, explosion that killed 29 miners.

Now, the IG report’s general conclusion is that MSHA’s lead investigator, Norman Page, showed poor judgment in this situation, but also that Page did not engage in a pattern of intentional intimidation or retaliation against the company, as Massey officials had alleged. Still, remember that Norman Page already had the negative findings of the Internal Review of the Kentucky Darby Disaster on his record, and Howard points out in his piece that all of this creates problems for federal prosecutors relying on MSHA’s work in their ongoing criminal investigation:

The report clears Page of any wrongdoing but the behavior that triggered the allegations raises concerns about his usefulness, and, possibly, the usefulness of the conclusions of the MSHA investigation, in an ongoing federal criminal probe.

“This report and the allegations in this report create a challenge for prosecutors who would want to use MSHA’s conclusions in a criminal case,” according to an attorney familiar with the Upper Big Branch investigation, who spoke on the condition of anonymity.

“Even though the Inspector General found no intimidation or retaliation on the part of MSHA or lead investigator Norman Page, the appearance of bias could still be raised as an issue and its unclear how a jury would respond,” the attorney added.

As I reported the other day, U.S. Attorney Booth Goodwin and his team probably have bigger problems than Norman Page when it comes to relying on MSHA’s report or its investigators, given the comments U.S. District Judge Irene Berger made about the agency during the sentencing hearing for former UBB security chief Hughie Elbert Stover:

MSHA is not on trial, so I won’t go into my opinion on that, given the evidence I’ve heard.