The Upper Big Branch Memorial

July 26, 2012 by Ken Ward Jr.

Yesterday, I blogged about the 10th anniversary of the near-disaster at the Quecreek Mine in Pennsylvania, and raised the question of why MSHA chief Joe Main hasn’t proposed the sort of rule that he previously argued — back when he was safety director of the United Mine Workers — was desperately needed to avoid a repeat of Quecreek.

Tomorrow down in Raleigh County, the politicians will be out in force, when an impressive memorial will be dedicated to the 29 miners who died in the April 5, 2010, explosion at Massey Energy’s Upper Big Branch Mine.

Folks in the Whitesville area are rightly proud of the monument they’ve built. It will be a good day for the relatives, friends and neighbors of the community to remember the men they lost, and thank each other for the way they came together after the disaster.

It’s just too bad that every political leader who can possible squeeze it into their schedule will have to parade to the podium and get their couple of minutes to tell us how much they respect coal miners, care about their safety, and will do everything they can to help protect them. Why? Because no matter what they say, the record is clear that political leaders in our nation and our state are absolutely not doing everything they could do help prevent another Upper Big Branch or otherwise protect the safety and health of coal miners.

On the federal level, comprehensive mine safety reform legislation has been stuck in the Congress for more than two years now, mostly because Republican leaders in the House have it bottled up good.   Earlier this week, the GOP blocked another effort by House Education and Labor ranking member Rep. George Miller, D-Calif., to help move forward on efforts to stop the death toll from black lung disease. The Republicans continue to push to block the U.S. Mine Safety and Health Administration’s regulatory proposal on black lung.

Now, West Virginia Rep. Shelley Moore Capito is said to be tight with her fellow Republicans who run the House. And we all know that Rep. Capito spends a lot of time talking about how much she cares about coal miners and their jobs. She’s on the agenda to speak at the Upper Big Branch Memorial event tomorrow (even though it’s not her district). So if she cares so much about coal miners, why hasn’t Rep. Capito publicly called for her GOP friends to stop their blockade on critical safety legislation and health regulations?

On the state level, the situation is perhaps even worse, despite the passage earlier this year of what most West Virginia media outlets foolishly described as comprehensive mine safety legislation.  We’ve tried over and over again on this blog (see here, here, here and here) and in the Gazette (see here, here and here) to explain the weaknesses of Gov. Earl Ray Tomblin’s bill. And we’ve pointed out how Gov. Tomblin’s public promises to do everything he could to help coal miners have withered over time into babbling about how the bill will somehow make mining a little safer. The facts are that the Tomblin administration took Upper Big Branch, and used it to help the coal industry get its pet measure — drug testing for coal miners — through the Legislature. Even the most liberal state lawmakers — folks like House Speaker Rick Thompson, who lost his father in a mining accident, and Delegate Mike Caputo, a United Mine Workers leader, went right along with this maneuver.

In Washington today, there was perhaps a moment for optimism, when Sen. Jay Rockefeller — fresh from his speech criticizing the coal industry’s public relations tactics on environmental issues — introduced what appears to be an even stronger bill than the initial versions of the legislation named for the late Sen. Robert C. Byrd. Sen. Joe Manchin, D-W.Va., is co-sponsoring the legislation and said this about recent meetings with families of the Upper Big Branch miners:

These families have endured so much, and have been told time and again that they just need to show a little more patience. Well, let me tell you that we’re all tired of hearing simple rhetoric.

But as the Daily Mail’s Ry Rivard pointed out on Twitter, the introduction of this bill comes just before Congress takes a long break from early August through Labor Day. After that, everyone will be focused on the election, and after that, you’re dealing with a lame duck Congress.

It would be easier to ignore the timing of Sen. Rockefeller’s bill if his press office hadn’t puffed up its announcement of the legislation with stuff like this:

Rockefeller has made protecting coal miner health and safety one of his chief goals in public office, and this bill re-affirms his lifelong commitment.

The Rockefeller announcement rightly points out the passage of very helpful legislation that makes coal companies report major safety problems and data about their safety compliance to stockholders in U.S. Securities and Exchange Commission filings. Then again, the senator’s announcement praises MSHA for toughening its standards for rock-dusting, despite the fact that MSHA knew about the problems with the previous standards for years and ignored repeated recommendations from NIOSH until after the Upper Big Branch Mine blew up.

I’ve written before that one thing Sen. Rockefeller could do if he’s serious about mine safety is to convene a hearing of the Senate Committee on Commerce, Science and Transportation to examine new technologies and scientific breakthroughs that could protect miner health and safety. He could still do that, and use the hearing to press for the Senate to move his legislation. The hearing might also be a forum for MSHA chief Joe Main to be quizzed about why he doesn’t move more quickly to implement a requirement that all mine operators use the advanced coal-dust explosibility meters that U.S. Attorney Booth Goodwin forced Alpha Natural Resources to begin installing at its operations. Of course, doing that would require something that most Democrats in Congress have been unwilling to do: Ask the tough questions of their friend Joe Main about the long list of failures by MSHA to prevent the Upper Big Branch deaths.

All of this reminds me of what Rep. David McKinley, another West Virginia Republican, said more than a year ago about Upper Big Branch at one of the memorial services to mark the first anniversary of the disaster:

I yearn so much for the assurance that the work we’re doing in Washington will give the confidence that this will never happen again. But as we’ve all learned, in many respects, it’s out of our hands. But we can do whatever man can do. We’re going to assure you we can do the best we can to assure that this never happens again.

Well, nobody has offered any credible evidence that what happened at Upper Big Branch was “out of our hands.” And certainly, there’s no question that ending black lung disease is not “out of our hands.”

When will our leaders act to really protect coal miners? Or are we just going to have to be satisfied with some more simply rhetoric?

2 Responses to “The Upper Big Branch Memorial”

  1. Tony Oppegard says:

    Ken —
    Sen. Rockefeller doesn’t necessarily need to convene a hearing on “new technologies and scientific breakthroughs that could protect miner health and safety” in order to advance mine safety and health in America’s mines.
    In 2007, we pushed through landmark legislation in Kentucky (House Bill 207) which contained a dozen provisions that exceed the requirements of the federal mine safety law. None of them are revolutionary ideas, just common sense requirements that will help save lives.
    The provisions include the following:

    1. two mine emergency technicians (METS) are required on each coal-producing shift (the federal law doesn’t even require the use of METs)

    2. mine operators must provide 48-hour notification to the state enforcement agency before beginning or resuming retreat mining operations; the state must then ensure that all miners are trained on the pillar removal plan

    3. requires preshift examinations for hazardous conditions at surface mines (not just at underground mines like the federal law)

    4. requires preoperational checks of all equipment at surface mines, which must be recorded in writing (federal law does not require a written record if no problems are found)

    5. subpoena power for the state enforcement agency to investigate allegations of unsafe working conditions even if no accident or injury has occurred (MSHA does not even have subpoena power to investigate an accident unless it convenes a public hearing)

    6. continuous operation of mine fans, except for maintenance or repairs, during which time all miners must be withdrawn from the mine (i.e., no more shutting off the mine fan for the weekend to save on the electricity bill)

    7. six hours of specialized safety training for foremen each year; must include training on changes in mine safety laws, disciplinary cases litigated before the Kentucky Mine Safety Review Commission, changes in mine safety technology & safe retreat mining practices

    8. all electrical work must be performed by a certified electrician (federal law allows repairmen under the direct supervision of a certified electrician to do electrical work)

    9. multi-gas detectors must be provided to all outby belt workers and to any group of 2 or more miners working in close proximity (e.g., a twin-headed roof bolting machine); in addition, the mine operator must provide one additonal detector for the use of any miner on the working section

    10. reciprocity for disciplinary actions imposed in other states (e.g., if a foreman’s card is revoked in WV or VA, and that foreman comes to KY to work, that revocation period applies here)

    11. the state enforcement agency must conduct accident investigations and issue reports on all serious non-fatal accidents (this is presently being done, but was not mandated by statute); MSHA typically does not do accident reports for serious non-fatal accidents

    12. the state must provide a full-time family liaison – who is trained in mining and grief counseling – to work with the victim’s family during an accident investigation

    Of course, there were other provisions that were ultimately stricken from the proposed legislation, which should be in the law as well. These provisions included the following:

    (a). requiring an engineer to certify that seals have been constructed according to the mine’s seal construction plan (instead of the current “honor system”); the coal industry lobbied vigorously against this provision and won that battle (i.e., the industry doesn’t want any accountability)

    (b) allowing a designated representative of the family of a miner killed or seriously injured in a mining accident to attend all interviews of witnesses conducted during the state’s accident investigation

    (c) prohibiting the use of the beltline entry for ventilating a working section (i.e., no more use of “belt air”, which is a proven hazard in the event of of a fire along the beltline)

    The point is that there are MANY safety improvements that can be made that don’t require the prolonged study of “new technologies and scientific breakthroughs”. However, these common sense requirements are rarely considred on the federal level.

    In fact, in my view, the BEST thing that Congress could do to protect coal miners is to require complete bi-monthly inspections at every mine (i.e., 6 inspections per year). We have been stuck on 4 complete inspections for over 40 years now and it has been repeatedly proven that far too many violations are missed during these quarterly inspections. Unfortunately, no one – not MSHA, the UMWA or any Congressman that I know of – has ever vigorously advocated for such legislation.

  2. Ken Ward Jr. says:


    Thanks for your comment … that’s a great point regarding increasing the required frequency of inspections at every mine. It’s worth noting that federal law requires environmental inspections of all surface mines once every month — more frequently than MSHA is required to inspect underground mines for safety and health violations.

    My point, though, was to look at what Sen. Rockefeller personally can do on this issue … Undoubtedly, his new bill will be referred to the Senate HELP Committee … Sen. Rockefeller doesn’t serve on that committee. The previous Byrd legislation went to that same committee, where — despite his stated support for tougher mine safety laws, Chairman Harkin never moved the bill. To my knowledge, it was never voted on or moved out of committee.

    Now, two points can be logically drawn from that:

    1. Despite his many years of experience in the Senate, is Sen. Rockefeller not able to get his friend Sen. Harkin to move the bill? If not, what good is all that seniority?

    2. One thing Sen. Rockefeller does control is his own committee’s agenda. While this bill didn’t go to his committee, he can make mine safety a priority for his committee through its jurisdiction over science and technology issues — I’m not suggesting that some fancy new technology that hasn’t been invented yet is the solution to mine safety problems or lack of compliance. Though it’s clear that some things — such as better dust monitoring — can benefit from technology. What I’m suggesting is that this is an avenue that Sen. Rockefeller could use to continue to shin a bright light on coal-mine safety issues.

    Thanks again for your comment, Ken.

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