Yesterday’s blockbuster news that U.S. Attorney Booth Goodwin had obtained a grand jury indictment of longtime Massey CEO Don Blankenship had me thinking again about the discussions I used to have with a former coal industry publicist about the huge numbers of mine safety violations some mining operations across the country routinely run up every year.
The discussion went something like this: There’s a fatality at a mine, and in covering the story, we would mention the number of violations cited at that operation the previous year by the U.S. Mine Safety and Health Administration. The numbers would almost always be large — especially if it was a big underground mine. Sometimes it would be literally hundreds of violations. My industry source would say it was unfair to publish those numbers without more context about the types of violations. I would respond by saying that the public should understand just how often mine companies don’t follow the rules. Eventually, things might get around to the fact that some in the mining industry say it’s simply impossible to run a coal mine, particularly a large underground one, without routinely getting written up by MSHA.
I bring this up today, as everyone is digesting what could be a historic turn of events, because at some point — probably after quite a long and complicated fight among the lawyers — if this case ever gets to a trial, there’s kind of a threshold question that the jury will face. And it’s a question that West Virginians more broadly need to figure out: Is it really acceptable for coal companies to routinely violate the law?
That issue is at the heart of the indictment that Goodwin and Assistant U.S. Attorney Steve Ruby got from a grand jury that met this week in Charleston. Here’s part of the indictment:
During the Indictment period, UBB was cited approximately 835 times for violations of mandatory federal mine safety and health standards … Approximately 319 of these violations were in an especially serious category of violations: those that could significantly and substantially contribute to the cause and effect of a safety or health hazard. Approximately 283 of UBB’s safety-law violations during the Indictment Period wee violations of the laws on mine ventilation, which operate to prevent explosions and fires in coal mines and to minimize deaths and serious injuries in the event an explosion or fire does occur. Approximately 59 of UBB’s safety law violations during the Indictment Period resulted in shutdown orders closing all or part of the mine until the violation was abated …
So yes, these were serious violations, and Upper Big Branch was a particularly problematic mine. But we also know that what can seem like little violations can turn into big violations, and that almost every time a coal miner is killed on the job, it’s because the company he worked for violated the law. And if you can turn your attention away from the Blankenship case long enough to check out the great work that Howard Berkes, Ellen Smith and others at NPR News and Mine Safety and Health News have done, it’s pretty obvious that plenty of coal operators don’t even have to count safety fines as part of the cost of doing business — because nobody ever makes them pay up.
Take a closer look at the part of the Blankenship indictment that focuses on allegations of lying to the SEC and to the investing public about Massey’s safety practices. It focuses on these statements made by Massey — at Blankenship’s insistence, the indictment alleges — in the days after the Upper Big Branch explosion:
Media coverage of the UBB incident has referred to safety violations issued to UBB by MSHA without placing the numbers in context. Since January 2009, UBB has had less than one violation per day of inspection by MSHA, a rate consistent with national averages. We do not condone any violation of MSHA regulations, and we strive to be in compliance with all regulations at all times. Most of the citations issued by MSHA to UBB in the last year were resolved on the same day they were issued.
Why are any violations of rules to protect the nation’s miners acceptable? And certainly, why are the hundreds of violations cited at Upper Big Branch acceptable? And why are those numbers, when put into “context” as Massey said, acceptable?
Goodwin and Ruby, the federal prosecutors here, are trying to make the case that such routine violation of the law in fact is not acceptable — even in the coal industry, maybe especially in the coal industry, where the difference between life and death, between going home at the end of the day or dying in a terrible disaster, is so narrow.
What does Don Blankenship have to say about all of this. Well, here’s the statement issued by his attorney yesterday:
We were notified today that our client Don Blankenship has been indicted in the Southern District of West Virginia. Mr. Blankenship is entirely innocent of these charges. He will fight them and he will be acquitted. Don Blankenship has been a tireless advocate for mine safety. His outspoken criticism of powerful bureaucrats has earned this indictment. He will not yield to their effort to silence him. He will not be intimidated.
But, as I wrote nearly a decade ago, in a profile of Blankenship, the former Massey CEO has explained, testifying under oath, that sometimes, the coal industry simply can’t comply with the laws set up to regulate it:
I expect we try to comply with the laws … But as you know, on things like the trucking, you can’t comply with it. So there are situations where we are in a box of not being able to comply with unreasonable laws.
Are laws like requiring proper ventilation and adequate rock dusting of underground mines, written decades ago to put an end to the death and destruction of terrible mine disasters like Upper Big Branch — unreasonable? Maybe now, a jury of West Virginians will get to decide.