At least that’s what state Sen. Randy Smith, R-Tucker, indicated on Saturday. The actual language of the expected “committee substitute” hasn’t been made public yet, but will apparently be discussed tomorrow during a 1 p.m. meeting of the Senate Committee on Energy, Industry and Mining, which Smith (an official from Mettiki Coal) chairs.
Smith let word of the deal slip on Saturday during a Senate Judiciary Committee meeting, when he was asking about any progress among various stakeholder groups to work out a deal on a “forced pooling” bill that the natural gas industry very much wants. Smith offered no details, but said of the deal he says he helped work out, “Everybody lost something, but everybody gained something, too.”
Meanwhile, the West Virginia mine safety bill and somewhat similar legislation moving in Kentucky got the attention of the editorial board of The New York Times, which commented today:
President Trump’s vow to bring back the coal industry’s heyday is a delusion. But it’s already inspiring Republican legislatures in Appalachia to resurrect a grim element of those boom times: loose safety laws that endangered miners’ lives and protected owners’ profits.
… Federal safety standards should be adequate, the sponsors airily insist. In truth, both state and federal governments should continue to exercise parallel responsibilities in protecting miners’ health and safety. This is particularly vital now that Mr. Trump’s proposed budget would inflict a 21 percent cut on the Labor Department, which is responsible for federal mine inspections.
… Political pandering is nothing new in Appalachia, where the coal industry has wooed and intimidated generations of state lawmakers to favor mine owners. But this latest bout, launched in tandem with Mr. Trump’s fantasy job promises, can only leave remaining miners in greater danger on the job.
As we reported here yesterday, the West Virginia Senate’s Committee on Energy, Industry and Mining met yesterday to take up SB 582, a bill to strip the state’s inspectors of any real enforcement role in coal mine health and safety (see also the companion bill introduced in the House).
A longer story in today’s print edition (and online here) provides more details about that bill, and explains that the EIM committee sent the measure to a subcommittee for further review.
It’s interesting to note that West Virginia is not alone in its effort this year to roll back mine safety protections under state law.
So obviously, it’s a good time for lawmakers at the Capitol to start focusing on coal-mine safety. And what better time to introduce what is certainly the most sweeping mine safety bill in many years than on a Saturday session of the state Senate, right?
After an initial glance at Senate Bill 582, here’s what United Mine Workers President Cecil Roberts had to say over the weekend:
We are reviewing the legislation to make sure we fully understand the impact it will have on working miners. This is the first opportunity we have had to see any of this language. The fact that this bill was introduced on a Saturday when it would get the least amount of media coverage tells you all you need to know about how proud its authors are of it. When legislators are afraid of the people finding out what they are doing, something is wrong.
The bill, sponsored by Sen. Randy Smith, R-Tucker and a Mettiki Coal official, is 106 pages long and is — to borrow the word used by longtime mine safety advocate Davitt McAteer — “breathtaking” in the extent to which is essentially eliminates any meaningful role for the state Office of Miners’ Health, Safety and Training in enforcement of safety and health protections for West Virginia’s miners.
For example, instead of conducting “inspections” at the state’s mines, the office would only perform “compliance visits and education.” Actual enforcement actions could only be taken against mine operators if a state employee discovers conditions that present imminent danger to workers — unless, of course, the infraction was committed by an individual miner. The state’s “Individual Penalty Assessments,” which target mostly mid-level foremen and not companies or corporate agents, would remain part of state law, under the bill.
Oddly, in a state where coal industry officials and their politicians have spent so much time bucking any role for the federal government in regulating mining, the bill also eliminates a long list of West Virginia safety and health standards and says that instead of those standards, mine operators must simply follow U.S. Mine Safety and Health Administration rules.
There’s a lot of other stuff in this bill, including some confusing provisions about the Department of Environmental Protection’s Special Reclamation Fund, a program that is of growing importance as the state faces the decline of the coal industry and the legacy liabilities that often poorly regulated mining has left behind.
This morning, when I looked a the calendar to see what the day ahead would be like, I saw the date: Jan. 19. I was reminded of a Jan. 19 more than a decade ago, when the day took a terrible turn and two men working at one of Don Blankenship’s coal mines ended up dead. I’m sure it’s another hard day for the families of Don Bragg and Elvis Hatfield. The calendar can be like that for mining families. The winter months especially are way too full of dates that mark one awful disaster or another.
Then shortly after I got to the newsroom, an email alert showed up from the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, noting a new document filed in the Blankenship appeal:
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cr-00244-1.
I clicked, called up the opinion, and hurried to scroll down to the key passage:
Defendant Donald Blankenship (“Defendant”), former chairman and chief executive officer of Massey Energy Company (“Massey”), makes four arguments related to his conviction for conspiring to violate federal mine safety laws and regulations. After careful review, we conclude the district court committed no reversible error. Accordingly, we affirm.
We’ve got a lot of changes coming our way in this country. Come tomorrow, Donald Trump will be sworn in as our President. Already in West Virginia, we’ve seen what is likely a similarly significant change. On Monday, Jim Justice stood at the Capitol and took the oath as our new governor.
There’s obviously a lot of evidence that suggests the coal revival that’s being promised is very unlikely to happen. But today’s events, and the history of what happened today back in 2006, should make us think about this from another perspective.
If you happened to be a regular reader of the CDC’s Morbidity and Mortality Weekly Report, yesterday’s bombshell about black lung disease was enough to frighten you.
In the paper, researchers at the National Institute for Occupational Safety and Health reported that they had confirmed a cluster of the mostly deadly form of the disease — Progressive Massive Fibrosis, or PMF — at a clinic in the Kentucky coalfields. This cluster hadn’t been discovered during the regular NIOSH routines that track black lung, and raised serious questions that the extent of the crisis was far worse than previously explained:
… Cases in this report were not identified through standard coal workers’ pneumoconiosis surveillance, and whether similar clusters of cases exist in other communities is not known. Thus, the actual extent of PMF in U.S. coal miners remains unclear.
Across Appalachia, coal miners are suffering from the most serious form of the deadly mining disease black lung in numbers more than 10 times what federal regulators report, an NPR investigation has found.
The government, through the National Institute for Occupational Safety and Health, reported 99 cases of “complicated” black lung, or progressive massive fibrosis, throughout the country the last five years.
But NPR obtained data from 11 black lung clinics in Virginia, West Virginia, Pennsylvania and Ohio, which reported a total of 962 cases so far this decade. The true number is probably even higher, because some clinics had incomplete records and others declined to provide data.
The reaction from experts in the field — people who have spent their adult lives studying black lung and trying to fight the disease — was nothing short of terrifying.
Robert Cohen of the University of Illinois, Chicago:
I can’t say that I’ve heard really anything worse than this in my career.
Edward “Lee” Petsonk of West Virginia University:
I’ve spent much of my career trying to find ways to better protect miners’ respiratory health. It’s almost like I’ve failed.
Scott Laney, one of the authors of the NIOSH paper:
The current numbers are unprecedented by any historical standard. We had not seen cases of this magnitude ever before in history in central Appalachia.
I guess it’s still early, but the thing I notice is that my email inbox is pretty empty today.
Where are the formal statements from West Virginia political leaders expressing their outrage at this situation? Where are the press releases demanding action?
When anyone releases a new regulation aimed at fighting climate change or trying to curb mountaintop removal pollution, the last place you want to be is between any of our state’s politicians and a microphone or camera. But 1,000 cases of the most severe and deadly form of a disease that has killed 78,000 coal miners since 1969?
Of course, nobody really much campaigns around these parts on a platform of promising to protect the health and safety of coal miners. Those days are gone, especially now that Ken Hechler has passed.
We’re hearing a lot right now from politicians and the political media echo chambers about the middle class, the working class, people who live in middle America. What I can’t understand is how it is that issues like black lung — or any number of a long list of worker health and safety threats — isn’t really talked about like it’s a working class issue.
During this year’s presidential campaign, Democrat Hillary Clinton did mention black lung, but only briefly on her website and in context of protecting the program that provides benefits to victims of black lung. She didn’t propose more steps to end this terrible disease. Secretary Clinton did talk a bit about coal miner safety, after former Massey Energy CEO Don Blankenship showed up at an anti-Clinton rally. She expressed her support for making crimes like Blankenship’s a felony, instead of a misdemeanor with a maximum of one year in prison.
If President-elect Donald Trump talked about black lung, I must have missed it. But does anyone really believe a Trump administration will make tougher regulations and enforcement of mine safety and health protections a priority?
When mine safety and health came up during our state’s gubernatorial campaign, it was in the form of a ridiculous attack by the United Mine Workers on Republican Bill Cole and in defense of Democrat Jim Justice, our now-Governor-elect who can’t seem to pay all his mine safety fines on time, and over a bill that was signed into law by Democratic Gov. Earl Ray Tomblin.
What people who are truly friends of coal miners ought to do is make sure that all of our elected officials have to sit down and listen to what it sounds like for Mackie Branham — one of the coal miners Berkes interviewed — just trying to breathe.
In this July 17, 2016 file photo, former Labor Secretary Elaine Chao and her husband, Senate Majority Leader Mitch McConnell, R-Ky., check out the stage during preparation for the Republican National Convention inside Quicken Loans Arena in Cleveland. President-elect Donald Trump has picked Elaine Chao to become transportation secretary, according to a Trump source. (AP Photo/Matt Rourke)
Elaine Chao is an excellent choice for transportation secretary. She is a trail blazer with a proven record of leadership. I enjoyed hosting Elaine in West Virginia during the Bush Administration and hope she will visit again in her role as transportation secretary to see why infrastructure is a top priority for the Mountain State.
It was less than two weeks after the terrorist attacks in New York City and at the Pentagon. Speaking at a memorial service in Alabama, Secretary Chao compared the efforts of a dozen miners who died trying to save a coworker to the heroic efforts of those firefighters and police officers who died trying to save 9/11 victims:
In the deepest darkness of these tragedies, we have also seen the best that America has to offer.
Then, Secretary Chao made a promise to the miners’ families:
Whether it be the terrorist attack on September 11 or the mine disaster that claimed thirteen lives this last weekend, we are determined to do everything we possibly can to keep it from ever happening again.
There are multiple news reports (see here, here and here, just for example) this evening that President-elect Donald Trump is strongly considering venture capitalist Wilbur Ross as his nominee to be secretary of the Department of Commerce or secretary of the Treasury.
Readers in coal country may recall Ross as the man who really owned the Sago Mine, the International Coal Group operation in Upshur County where 12 coal miners died in a Jan. 2, 2006 explosion.
New York billionaire Wilbur L. Ross Jr. has controlled the company that owns the Sago Mine since at least early 2001, according to court records, corporate disclosures and other publicly available documents.
Ross began buying up Anker Coal Group in 1999, with the purchase of a one-fifth stake in the company, according to U.S. Securities and Exchange Commission filings.
By 2001, Ross had acquired 47 percent of the company – making him by far the largest shareholder, SEC records show.
After campaigning as a champion of coal miners, Donald Trump is reportedly close to choosing for Commerce Secretary a New York billionaire who owned a West Virginia mine where a dozen miners were killed in 2006. Trump’s favored candidate, Wilbur Ross, also engineered buyouts that cost workers their benefits and their jobs. It’s a striking choice, considering Trump’s promises to improve the lives of coal miners and other working-class Americans.
The possibility that Ross would get a spot in the Trump team isn’t that surprising, given that Ross has been reported for a while to be one of the President-elect’s economic policy advisers.
It is worth pointing out that if he got either the Commerce or Treasury slot, Ross would not be in charge of coal mine safety and health regulation for the Trump administration. Folks who are concerned about those issues would obviously be better off watching to see who President-elect Trump makes Secretary of Labor — and then who exactly is chosen to by Assistant Secretary of Labor for Mine Safety and Health.
Is something like Sago too much baggage for Ross to become a cabinet secretary? Well, considering some of the other appointments already announced by the transition team, that seems pretty unlikely.
For the record, it’s certainly true that the Sago Mine didn’t exactly have a spotless safety record at the time of the deadly explosion — far from it, according to our stories published at the time (see here, here and here, just for example).
Interestingly, though, the U.S. Mine Safety and Health Administration, when it issued the report of its investigation of the Sago Disaster, did not list any of the many violations its inspectors found as having contributed to the deaths. A separate report by an independent team — led by longtime mine safety advocate Davitt McAteer — found plenty of blame to go around, noting failures by regulators and the company to ensure the safety of the Sago workers.
A confirmation hearing for Ross could give the Democrats in the Senate the opportunity to ask a few interesting questions … But then again, it’s not like either presidential candidate or the national media spent much time at all talking about worker safety and health during our nation’s just-completed presidential election.
So I asked Sam Petsonk, a mine safety lawyer with the non-profit firm Mountain State Justice, for some ideas. Here’s what he had to say:
America’s companies have often promised us that, if you work for a living, you will be kept safe and healthy at work and you will have some financial security once you retire. Yet, tens of thousands of miners all across the Appalachian Region are losing health insurance after becoming disabled or retired, and others are confronting safety and health challenges on the job if they are still in the workplace. So, the new presidential administration faces serious challenges in assuring that companies keep those promises to coal miners—both for active workers and for retirees whose healthcare benefits are terminated or denied.
Will our companies and government leaders keep the promise to America’s workers and seniors?
This is an essential question for us to be asking. Coal miners have educated me about several increasingly important challenges as we have advocated together on workers’ and retirees’ rights over the past decade. Here are some of those challenges, and some steps that the new administration could take to address them.
First, coal companies are laying off underground maintenance crews as a way to save money during a downturn in the market. Failing to provide basic levels of safe staffing at underground mines can cause major ventilation problems and other life-threatening hazards. When operators fail to employ ‘outby’ maintenance crews or additional workers to hang ventilation curtains, the remaining workers often find that they do not have enough time to perform all the necessary work to keep the mine safe and productive. We have long relied upon these maintenance crews to keep our mines safe and healthful. Cutbacks on maintenance can cause a mine to lose control of its ventilation system, or to fail to identify and to clean up roof falls and dust accumulations. It takes a good bit of time to maintain the ventilation systems (repairing or plastering stoppings to prevent air leakage, and maintaining other ventilation controls, etc.). It takes more time to conduct comprehensive preshift examinations and other safety-sensitive tasks.
In many mines, the firebosses or preshift examiners cannot be relied upon to accomplish all of their firebossing tasks as well as to make up for non-existent outby maintenance crews. There is not enough time, and critical tasks will be short-changed. These are serious concerns because inadequate maintenance of ventilation structures can cause a lethal mixture of methane gas and coal dust—especially in sensitive areas like dead-air zones and methane mixing chambers. These concerns are also especially acute on a so-called “supersection” where there are two continuous mining machines on a single stream or “split” of air. In that setting, twice as much dust is generated and the need for full staffing is therefore greater.
If the market picks up again, perhaps companies will start hiring back those maintenance crews and necessary helpers on supersections. But in the meantime, the federal Mine Safety and Health Administration (MSHA) can take important steps to assure adequate maintenance. For instance, coal mine operators are currently required to maintain roof control and ventilation plans for their mines. MSHA has the power to mandate that the roof control and ventilation plans provide for more frequent maintenance of ‘outby’ areas, so that stoppings are regularly plastered, spillages and falls are promptly cleaned up, and maintenance crews cannot be laid off. As for supersections, MSHA Assistant Secretary Joe Main has stated that best practices for staffing a supersection include a total of 16 miners: 1 foreman; 2 continuous miner operators; 2 continuous miner helpers that are also responsible for ventilation curtains; 4 shuttle car operators; 2 scoop operators; 4 roof bolter operators and 1 mechanic. This does not include outby maintenance crews, such as stopping builders or supply haulage positions (i.e., miners who are not regularly assigned to work at the mine face). MSHA can also work with the West Virginia Office of Miners’ Health, Safety, and Training to include similar requirements in the comprehensive safety plans that West Virginia coal operators are required to maintain.
Second, black lung has been on the rise for years, and MSHA should continue addressing that problem by reducing coal miners’ exposure to all forms of breathable coal mine dust (both coal and silica dust)—including by prohibiting companies from ever permitting miners to work downwind from the active cutting of coal.The promise to end the advanced forms of black lung disease has long been a basic tenet of America’s law and policy for coal miners. But miners report that companies routinely force roof bolt crews to spend hours each night drilling into the mine roof while downwind from active mining machines, in flagrant and intentional disregard of the lethal dust exposure for those downwind miners. It is no surprise that we have a new surge in advanced black lung disease in the twenty-first century when we allow coal operators to treat miners in this fashion.
Every miner (non-union and union alike) has the right to complain to management about working in dusty conditions downwind from active mining machines in what is known as “return air.” A growing number of miners are exercising that right, and are outright refusing to work in such conditions. I routinely speak with and represent young men in their thirties or forties who have already worked as roof bolters for over fifteen years in the coal mines of eastern Kentucky and southern West Virginia. Several of them have banded together to refuse to operate their roof bolt machines in return air at such mines as the Gateway Eagle Mine in Boone County, and others. These miners are demonstrating that it is possible to run good coal and not expose miners to toxic levels of dust.
Despite the courageous efforts of a growing number of miners who are banding together and refusing to bolt in return air, additional action by MSHA is necessary in order to prevent companies from pressuring miners to resume working in return air. MSHA can stop this practice altogether by prohibiting companies from ever permitting miners (roof bolters, buggy men, or anyone) to work downwind while a machine is actively cutting coal on a section. No miner should have to stand for hours just a few feet from a continuous mining machine, breathing unfathomable amounts of highly-toxic coal and silica dust. MSHA has the power to outlaw that type of work practice.
Under the leadership of Assistant Secretary Joe Main, MSHA has taken some very important first steps to address the issue of black lung, such as reducing the permissible exposure limit and mandating better dust monitors. MSHA recently introduced a new generation of dust control technology via the continuous personal dust monitors. These new dust monitors are empowering miners with real-time information about dust exposure. Dust control is a major challenge nationwide, but especially in Central Appalachia, where miners are often forced to work in highly-toxic sandstone and silica dust, mixed with coal dust, in order to access the thin-seam coal reserves that are still left over for mining in this region. The new dust monitors are helping miners to avoid toxic dust exposures that can cause early onset of black lung in young miners. But the monitors alone may not halt the surge of black lung if the new administration does not take additional steps to strengthen enforcement and eliminate acute dust exposure in “return air” downwind from active mining.
Just a few hours before the second and final debate between gubernatorial candidates Jim Justice and Bill Cole — and in the wake of last week’s devastating report about Justice by NPR — the United Mine Workers union is stepping up to defend their candidate. Here’s UMWA President Cecil Roberts in what the union says is a “reality check” on which candidate is best for mine safety:
I read the NPR story regarding the mine safety fines incurred by mines operated by companies that Jim Justice owns. Let me be clear: I believe his company needs to pay any fines it has incurred. My understanding is that those fines are, in fact, being paid right now.
But if we want to talk about which candidate for West Virginia Governor cares more about the health and safety of working miners, let’s make sure the facts are clear. Jim Justice has never questioned the need for mine safety laws and regulations.
The prepared statement from President Roberts went on:
Bill Cole hasn’t just questioned whether we need safety laws for West Virginia miners, he played a key part in slashing the state’s mine safety and health law in 2015. First, the law Bill Cole pushed through the State Senate abolished a commission that was charged with making sure miners weren’t breathing harmful diesel exhaust emissions while working underground.
Second, Bill Cole agreed with those who thought it was not a problem for miners to have to carry an injured miner 1,500 feet to get to mechanized transportation and then be brought outside for medical treatment. Anyone who has ever walked underground over broken rock and lumps of coal knows how difficult that is at the best of times. Trying to do that over the equivalent of five football fields while rushing to get an injured co-worker to safety is the last thing miners need to be doing.
And third, Bill Cole supported putting miners’ lives in danger by allowing companies to move large equipment around in a mine and putting that equipment between working miners and escape routes if something bad happens. This law was put into place back in the 1970s when miners were killed as a result of this practice. We should never allow something to happen underground that we know has already lead to miners’ deaths. But Bill Cole did.
The UMWA is talking about the legislation described in this story, and which a top union official and state legislator criticized in this op-ed piece, saying:
This extreme legislation loosens coal mining safety regulations to the benefit of big corporations without any regard for worker safety.
… Justice’s mining companies still fail to pay millions of dollars in mine safety penalties two years after an earlier investigation documented the same behavior. Our analysis of federal data shows that Justice is now the nation’s top mine safety delinquent.
His mining companies owe $15 million in six states, including property and minerals taxes, state coal severance and withholding taxes, and federal income, excise and unemployment taxes, as well as mine safety penalties, according to county, state and federal records.
The story continues:
In the past 16 months, while fines and taxes went unpaid, Justice personally contributed nearly $2.9 million in interest-free loans and in-kind contributions to his gubernatorial campaign, according to state campaign finance reports.
Grant Herring, a spokesman for the Justice gubernatorial campaign, said Justice “won’t be doing an interview,” despite multiple requests after NPR provided details of our investigation.
Importantly, the investigation also reports:
Delinquent Justice mines also continue to have worse-than-average safety records, according to NPR’s analysis of MSHA injury and violations data. Our analysis shows that injury rates (for injuries forcing time away from work) are twice the national average and violations rates more than four times the national rate during the years the Justice mines failed to pay penalties.
The Justice fines concern Celeste Monforton, a former MSHA official, mine disaster investigator and lecturer on workplace safety at George Washington University and Texas State University.
“I don’t think we should forget that the reason that he has those penalties is because there were violations and hazards in his coal mining operations,” says Monforton.
Here’s an announcement just out from the U.S. Mine Safety and Health Administration:
Since October 2015, eight fatalities and more than 1,100 nonfatal accidents have occurred in the nation’s coal mines, resulting in restricted duty, missed days at work, and permanent disabilities for the miners who worked there. While injury rates have been fairly consistent during this time period, records indicate a trend in accidents resulting in more serious injuries. The circumstances in at least 30 of the accidents might have led to fatalities.
Beginning today, the Mine Safety and Health Administration is issuing a call to safety to coal miners working in underground and surface mines around the country. Inspectors will engage coal miners and mine operators in “walk and talks” through Sept. 30, reminding them to “stop and take a breath” before proceeding with the next task at hand.
The most common outcomes of the more than 1,100 mining accidents – 250 of which occurred at surface operations – were injuries to the back, shoulders, knees and fingers. In the near-fatal accidents, the majority were attributed to powered haulage, electrical and machinery classifications.
The majority of non-fatal accidents occurred in West Virginia, with 419; Kentucky, with 191, and Pennsylvania, 130.
MSHA chief Joe Main said:
These walk and talks are intended to increase miners’ awareness of recent accidents, encourage the application of safety training and raise hazard recognition.
There’s an interesting op-ed in The New York Times today by civil rights lawyer and author Chase Madar about the use of criminal prosecutions in major public safety disasters. It mentions the Upper Big Branch Mine explosion, and the successful prosecution of former Massey CEO Don Blankenship:
The latest criminal charges of public officials in the contamination of the Flint, Mich., water supply seem righteous. After so much government ineptitude with such hideous consequences — tens of thousands of Flint residents poisoned; elevated blood lead levels in nearly 5 percent of the city’s children, many with possibly irreversible brain damage — surely these criminal charges will bring, at long last, justice for Flint.
Not really. Though these sorts of charges fulfill an emotional need for retribution and are of great benefit to district attorneys on the make, they are seldom more than a mediagenic booby prize. Prosecutorial responses fill the void left when health and safety regulations succumb to corporate and political pressure.
Take the collapse at the Upper Big Branch mine in West Virginia that killed 29 miners in 2010. Flouting safety regulations was an integral part of the corporate culture of the mine’s owner, Massey Energy, and last year its chief executive, Donald L. Blankenship, was convicted of a misdemeanor carrying a one-year sentence. Although some portrayed this as a blow for social justice, it’s difficult to see how it had much impact on mine safety.
Far more significant was the West Virginia Legislature’s passage last year of the Creating Coal Jobs and Safety Act, the first statutory loosening of mine safety standards in state history. While on its deregulatory binge last year, the state almost entirely rolled back aboveground chemical-tank safety standards enacted in response to the Elk River contamination disaster of 2014 – which made the water of 300,000 people undrinkable.
The general point is that criminal prosecutions won’t stop mine disasters, or water pollution, or food contamination — and that the media give far too much attention to criminal trials in these incidents, at the expense of coverage of the many failings of our civil and administrative regulatory systems that are supposed to protect the public. Attorney Madar opines:
Our prosecutorial response tends to be reactive. Volkswagen will pay at least $15 billion for cheating on emissions tests on its diesel vehicles, and may face criminal charges. The tiny research center that caught the discrepancy is now facing cuts to its $1.5 million annual budget.
A well-enforced regulatory regime lacks the TV-movie narrative arc of a criminal trial. But none of these crimes could have been committed if the government had been doing its job properly.
OK. Now one glaring problem with this whole line of thinking is that, while telling readers that these prosecutions are little more than a “mediagenic booby prize” that we mere news reporters fall for every time, Attorney Madar seems to be getting his information about the glaring holes in regulatory systems that aren’t explained to the public from — that’s right, the mainstream media.
Murray said, as he has before, that a new contract to replace the UMWA deal that expires at the end of the year, is essential to his company’s survival. The MetroNews summary of his comments went like this:
“The United Mine Workers turned it down last time. It is essential, the approval of it, to complete our four step program to avoid financial default in October,” Murray said.
Murray announced in July that 4,400 employees, 80 percent of his workforce, could lose their jobs. WARN notices were sent out.
But things veered away from that pretty quickly into another attack on the Obama administration and its efforts to better regulate coal mining. Here’s Murray, responding to Hoppy’s softball questions:
I’ve worked night and day for 29 years building this company and creating these jobs only to have them destroyed by Barack Obama and his excessive regulations. Those regulations are coming out against coal, against the utilization of coal as well as the mining of coal faster than we can read them.
Murray went on:
Talk about harassment. In the first two days of this month, our mines had 89 federal inspectors from the federal Mine Safety and Health Administration run by former UMWA safety man Joe Main. Eight-nine inspectors.
That means I had to take 89 management people off of inspecting the mines, off of doing safety training. It has nothing to do with safety. It is total harassment. Eighty-nine inspectors for 15 mines … All of which are cut back in production because they keep hiring these inspectors. They have nowhere to put them. It’s all harassment. It works against safety. There are so many ways that this federal government, under Obama, which Hilary Clinton has said she will continue trying to drive the coal mines out of business. It has nothing to do with safety. It has to do with eliminating underground coal mining.
Here’s the information we have so far from the state Office of Miners’ Health, Safety and Training about a West Virginia coal-mining death:
The West Virginia Office of Miners’ Health, Safety and Training confirms Donald Workman of Gilbert, W.Va., died last evening from injuries he sustained from a mine incident that occurred on Friday, July 29, 2016. The incident occurred at Spartan Mining’s Road fork 51 MineRoad Fork #51 Spartan Mine in Pineville, Wyoming County. Mr. Gilbert was a maintenance supervisor at the mine; he was 58 years old. The incident was reported to the Mine and Industrial Rapid Response System at 12:47 p.m. on July 29th.
Initial reports indicate there was an ignition in the shaft of this underground mine. The miner was on the surface at the time of the incident.
Inspectors from the West Virginia Office of Miners’ Health, Safety and Training are investigating the incident and the cause of the ignition. Further details will be released when the investigation is complete.
And here’s additional information, just provided by the U.S. Mine Safety and Health Administration:
Coal District 12 was notified that a miner who was seriously injured on July 29, 2016, at the mine listed below, passed away yesterday. Preliminary information indicates the following:
On July 29, 2016, two miners were performing welding repairs on a dewatering pump located on the surface near a shaft. The miners were welding threaded blocks that would be used to fasten guarding for the shaft. One miner heard a roaring noise and moved away from the shaft. The other miner was in the direct line of fire and received 2nd and 3rd degree burns and was transported to a medical facility. The miner who was not burned said he saw a large blue flame exit the shaft.
There’s a new report out from the U.S. Mine Safety and Health Administration that spells out the findings of the agency’s investigation into the death earlier this year of Mark Frazier, a miner at Arch Coal’s Huff Creek No. 1 Mine in Harlan County, Kentucky.
At 8:16 am, on Friday, March 25, 2016, Mark Frazier (victim) was fatally injured while operating a continuous mining machine in an outby area of the mine. The victim was loading material from a coal transfer chute construction site in the B-Mains No. 3 portion of the mine. A large section of rock rib/brow fell trapping him between the frame of abattery-powered ramcar and the mine floor. The rock rib/brow measured approximately 44 feet in length, 4 feet in width, and 2 feet in thickness. The portion of the rock rib/brow that struck the victim measured 8 feet in length, 4 feet in width, and 2 feet in thickness and weighed over 5 tons.
And here’s a bit of the MSHA description of events leading up to the death:
On March 25, 2016, Mark Frazier, Outby Construction Crew Member and Fireboss, and Brian Napier, Outby Construction Crew Member, entered the mine at approximately 5:00 am and traveled to the coal transfer chute construction site located in the No. 3 entry of the B-Mains No. 3 panel. No coal production was scheduled, but employees were scheduled to work to clean up the coal/rock debris created from the excavation of the transfer chute in an outby area of the mine. Upon arrival at the construction site, Napier began preparing the ramcar for use and Frazier began an examination of the area. In the meantime, Tim Daniels, Outby Construction Crew Member, and Keith Boggs, Mine Examiner, entered the mine. At approximately 5:50 am, Boggs arrived at the transfer chute construction site, boarded a permissible buggy, and began traveling his mineexamination route. Daniels began the shift by operating a battery-powered scoop to push loose material from the No. 2 entry and adjacent right crosscut toward the transfer chute. There was a short delay in the clean-up process while the feeder was repaired. Frazier operated the continuous mining machine to load out the excavated coal/rock debris into the ramcar operated by Napier. The clean-up process continued until about 25 loads of material were loaded out. At that time, Willard Hickey, First Shift Foreman, arrived at the work site and proceeded to the area of the continuous mining machine.
At 8:16 am, a large section of the rock rib/brow fell from the right rib and trapped Frazier against the ramcar. Hickey was knocked to the mine floor but he was not trapped and not significantly injured.
A death investigation is under way after a miner was killed at the New Era Mine in Saline County on Monday, June 7, 2016.
Captain Bill Paterson with the Illinois Department of Mines and Minerals says the man suffered fatal injuries when he was pinned beneath a piece of equipment. Another miner was also hurt and is recovering in the hospital. The names of both of the miners are being withheld until family is notified.
New Era Mine is owned by American Coal.
The New Era Mine is controlled by Murray Energy, and here’s the press statement that company provided today:
The American Coal Company (“American Coal”) confirms that an accident occurred at its New Era Mine, this afternoon, in which an employee of a contractor, David Stanley Consultants, LLC, was pinned beneath a piece of equipment on which he was working. The name of the individual is being withheld pending notification of family members.
UPDATE: The contractor employee is Mr. Robbie E. Clark, thirty-four (34) years old, of Eldorado, Illinois.
This matter is currently being investigated, and we will continue to work closely and diligently with appropriate authorities. American Coal is committed to ensuring that safety remains the absolute highest priority across all of our operations.
Our employees and management are deeply saddened by this tragic event. During this very difficult time, we send our sincerest condolences and prayers to the family and to all those affected by this loss.
This is the fifth coal-mining death listed by MSHA so far this year in the U.S.
UPDATED: Here’s a statement from MSHA —
Two miners were working with a diesel scoop. They lowered the bucket and put downward hydraulic pressure on the bucket to raise the middle of the scoop up. Both men crawled under the scoop to look at something. The hydraulic pressure slowly released, allowing the scoop to lower onto and trap the two men under it. An examiner heard them yelling and came to the scoop and saw them under it. He put downward hydraulic pressure on it again by lowering the bucket. He got the survivor out and then they got the victim out. CPR was started but the victim could not be revived.
It is hard to imagine what the families of those 29 miners have been through. Think about it. Your husband or son or brother or father is snatched away — blown away really — stolen from your family in a violent underground explosion.
But it’s not like they just didn’t come home from work one day. You got a terrifying phone call. The phone call mining families have come to fear, but somehow always know could come. And then you spent a couple days in the ritual of waiting and hoping and praying that maybe, just maybe he somehow survived.
But even when that reality hits you, it’s not like you got to just bury him and grieve and try to find a way to live. There were meetings, and hearings and lawsuits. And all of the people from the media — maybe they’re just trying to do their job, but after a while having a microphone in your face gets kind of old.
And then, the CEO of the company who ran the mine that blew up got indicted. Maybe there would be justice, you thought. But then there was the trial. And it seemed like it would never end. And it was confusing — What were all the lawyers talking about up at the judge’s bench? What do all of these objections mean? Are those jurors even paying any attention to any of this?
Finally, though, there was a verdict. But even then — even then — everybody keeps talking about how none of this was really about what happened to him. What happened to all of them. It was about something else, not about what happened to those 29 miners.
Today, lots of people will talk about how they remember, how they’re praying for the families. How they’ll never forget.
I’m sure that’s all true. People do remember, and they do pray. Certainly, those families will never forget. The pain that folks like Gary and Patty Quarles must feel. I can’t imagine. They lost their son at Upper Big Branch. That never goes away. They won’t forget what happened.
But what about the rest of us? How can it be that today, of all days, there aren’t hundreds of people over in front of the Robert C. Byrd United States Courthouse for a protest or a vigil or just a quiet remembrance? Where are all those friends who care so much about our state’s coal miners now? What about the people who had a chance to speak up before all those miners died, and didn’t? What about all of us, who have a chance now to speak up, to do whatever needs to be done to make sure it doesn’t happen again?
Because while today is a day like many others on the coalfield calendar, tomorrow is a quite different sort of day.
During a hearing scheduled to start at 10 a.m., U.S. District Judge Irene C. Berger will sentence that CEO who got indicted. Don Blankenship is really a legendary sort of figure in Appalachia and the coal industry. He was once one of the region’s most powerful men. He’s still one of its richest.
Tomorrow in court, Blankenship will stand convicted by a federal jury of conspiring to willfully violate mandatory mine safety and health standards. He faces up to a year in prison and a $250,000 fine.
It’s a remarkable thing. A historic development. The CEO of one of the region’s largest coal companies was convicted of a mine safety crime after the worst mining disaster in a generation.
It’s true that Blankenship, as the defense makes clear in its recent court filings, wasn’t charged with blowing up the mine. He wasn’t convicted of causing that explosion, of killing those 29 men.
But what Assistant U.S. Attorney Steve Ruby outlined in his sentencing memo to Judge Berger is also true:
We have known for a very long time what makes coal mines explode. We have known for a very long time how to prevent it. And, sadly, we have known for a very long time that some mine operators will ignore these hard-learned lessons until the law compels them to take notice. The mine safety laws, it is said with good reason, are written in coal miners’ blood.
Defendant knew full well the awful risks, dramatized time and again in ghastly fashion over the years, that he was taking by flouting the mine safety laws at Upper Big Branch. There was no mystery about what poor ventilation meant: buildups of methane that would ignite with the slightest spark. Yet UBB’s miners were left pleading for air. There was no question what accumulations of coal dust meant if not properly treated: a powder keg 1,000 feet below the surface, primed to blow at any time. Yet black dust pervaded the mine, a calamity in the making.
There was nothing the least bit hidden or mysterious about the dangers of how Defendant chose to run UBB. They manifested themselves openly, obviously, to anyone with the most basic knowledge of coal mining, and certainly to Defendant.
Ruby goes on to remind us about Blankenship, and provide more important context:
How does one take the measure of such a crime? Defendant was the chief executive of one of America’s largest coal companies—a multibillion-dollar behemoth with its shares traded on the New York Stock Exchange, a fleet of private aircraft, luxurious board meetings at posh resorts around the country, and vast resources to support its mining operations. He had every opportunity to run UBB safely and legally. Instead, he actively conspired to break the laws that protect coal miners’ lives. Although already fabulously wealthy by the time of the criminal conspiracy of which he stands convicted, Defendant’s greed was such that he would willfully imperil his workers’ survival to further fatten his bank account.
Deciding a just sentence will be up to Judge Berger. And of course, Blankenship’s appeal will be up to the 4th U.S. Circuit Court of Appeals.
Deciding the potential penalties for a criminal conspiracy that puts miners at risk, though … well, that’s up to Congress. And when was the last time you heard any of West Virginia’s elected officials — either on the state or federal level — talking about the need to change that law, to make mine safety crimes felonies, and provide more serious punishments?
I have seen it all before. First, the disaster. Then the weeping. Then the outrage. And we are all too familiar with what comes next. After a few weeks, when the cameras are gone, when the ink on the editorials has dried, everything returns to business as usual. The health and the safety of America’s coal miners, the men and women upon whom the nation depends so much, is once again forgotten until the next disaster.
Just this morning, both Sens. Joe Manchin and Shelley Moore Capito issued statements to mark the Upper Big Branch anniversary.
Sen. Manchin said:
Six years ago I grieved with the miners’ families, West Virginians and the entire nation during the hours and days after the unspeakable mining tragedy at Upper Big Branch. Today on this sad anniversary, our hearts weigh heavy as we remember the tragic Upper Big Branch Mine Disaster. Not a day goes by that I don’t think about the 29 brave West Virginia miners we lost that day, who went to work and never returned home to their loved ones. I stayed with the miners’ loved ones through moments of hope and despair in the days following the devastating tragedy and saw the unbreakable bonds of family.
No family or community should ever endure a preventable tragedy like the one at Upper Big Branch again and this day reminds us that we always must put safety first. The health and safety of our miners will always be my top priority and I have always been committed to ensuring our miners return home safely every night. Our hearts are still broken and Gayle and I join all West Virginians in honoring those miners’ memories as we grieve their loss and pray for continued strength for their families.”
Sen. Capito said:
It’s hard to believe that six years ago today 29 miners lost their lives in an explosion at the Upper Big Branch coal mine. For many West Virginians, especially those who lost loved ones and friends, the memories from that terrible day are still so fresh in our minds. My heart still aches for the families of the 29 miners whose lives were forever changed on April 5, 2010. As our state continues to heal from this tragedy, I will continue my efforts to protect our coal miners who selflessly put their lives at risk in order to provide for their families and power our state.
No real mention in there of anything either of them has done recently to try to get any sort of mine safety bill, especially one that would toughen the penalties for mine safety crimes, moving in Congress. Thinking about the families and praying for them is obviously worth doing. But trying to divorce the mine disaster completely from the Blankenship case — and especially divorcing the weak state of current criminal laws about mine safety violations — seems to be quite a disservice to the men who died and to their surviving families.
It’s like we feel compelled to remember the Upper Big Branch Mine Disaster, but it’s convenient to at the same time forget how it happened and what needs done to make sure it doesn’t happen again.
As the public tries to understand how six former Freedom Industries officials received a total of 60 days in jail for contaminating the drinking water for 300,000 people (see here and here for some of my efforts at explaining), some folks have naturally turned their attention to the upcoming sentencing in another of former U.S. Attorney Booth Goodwin’s major white-collar criminal cases
It’s hard not to wonder now whether former Massey Energy CEO Don Blankenship — to borrow a phrase that U.S. District Judge Thomas E. Johnston has now made famous — is “hardly a criminal.”
Like former Freedom officials Gary Southern, Dennis Farrell, William Tis, Charles Herzing, Michael Burdette and Robert Reynolds, Blankenship stands guilty of a crime that the law books list as a “misdemeanor.” A minor offense. A lesser crime (for more on whether crimes that put coal miner safety and health at risk deserve to be felonies, read this).
So when U.S. District Judge Irene Berger sentences Blankenship on April 6 — the day after the sixth anniversary of the Upper Big Branch Mine Disaster — will she let him off with what Blankenship’s critics (and certainly the families of the 29 miners who died at UBB) would consider a slap on the wrist?
Well, it’s true that Judge Berger’s hands are in some ways tied. Congress has made willfully violating a federal mine safety and health standard punishable by only up to one year in prison. And because Blankenship’s jury found him guilty only of conspiracy to willfully violate such standards, his conspiracy crime — normally a felony — is punishable with a maximum of one year in prison. Moreover, the Blankenship jury found him not guilty of the other, felony charges brought against him.
And while it’s true that Judge Berger has already sent four former Massey officials to prison for not insignificant periods of time, those four individuals (former Massey miner Thomas Harrah, UBB security chief Hughie Elbert Stover, UBB mine superintendent Gary May and former Massey unit president David Hughart) all were convicted by a jury or pleaded guilty to felony offenses.
Still, there some significant differences between the Blankenship and the Freedom cases, and they are worth understanding if you’re wondering how the next big sentencing in federal court here in Charleston might turn out. I’ve looked into this a little bit in the last day or so, and I asked Assistant U.S. Attorney Steve Ruby and defense lawyer Bill Taylor for their thoughts. I haven’t heard back from Mr. Taylor, but I’ll share some of AUSA Ruby’s comments below.
First, Blankenship was found guilty by the jury of conspiracy to willfully violate mandatory mine safety and health violations. This is quite different from the negligence and strict liability crimes involved in the water pollution cases against Freedom officials. As Ruby explained:
As you point out, Blankenship was convicted of conspiring to commit willful mine safety violations. The jury also found that his participation in the conspiracy was willful — a second level of willful misconduct, beyond the willfulness of the violations themselves. Willfulness is the highest standard of criminal intent that exists in the law. The difference between the willfulness of Blankenship’s actions, on the one hand, and the negligence and strict liability involved [in] the Freedom convictions, on the other, does distinguish the cases and would weigh in favor of a more severe sentence here.
Second, the federal government has already indicated in a court filing that it believes the advisory guideline sentencing range for Blankenship is 10 to 16 months (generally speaking, when a guidelines calculation produces a sentence which, like this one, ranges above the statutory maximum, that maximum becomes the guidelines range). Prosecutors indicated they believe there are factors that could push the guidelines range even higher, but they won’t yet explain their thinking on that. Ruby said:
We believe that the guidelines range ultimately could be some months higher than the 10- to 16-month range we discussed in our filing, but any difference would likely be a matter only of months, not years. We will decline at this time to discuss the specific enhancement that might increase the range. Given that the minimum range should be 10 to 16 months and the statutory maximum, unfortunately, is a year, we would not expect any difference to have much practical impact.
The U.S. Mine Safety and Health Administration said of the recent incident:
A 31-year-old miner was fatality injured on January 16 when a fall of material pinned the victim to the mine floor. First responders freed the victim who was then transported to the surface area of the mine and traveled by ambulance to Ruby Memorial Hospital.
This is the 2nd U.S. coal-mining death in 2016, according to MSHA’s count.
A 36-year-old miner was fatality injured on Jan.19, 2016, when he became pinned between a continuous mining machine and the coal rib. The continuous miner operator was transported from the mine to the Baptist Hospital in Madisonville Kentucky where he was pronounced dead.
A Marion man died Tuesday night, the result of a mining accident that occurred at M-Class Mine, located on North Thompsonville Road in Macedonia.
Franklin County Coroner Marty Leffler was informed of the incident shortly before 9 p.m. Tuesday. Chief Deputy Coroner John Gaskewicz responded to the mine to await the removal of the victim.
Near 11:30 p.m. the body of the miner was brought to the surface and pronounced dead at the scene.
The coroner’s office said 20-year-old Tyler D. Rath was identified as the victim. Rath is survived by a wife, a 2-year-old daughter and a six-day old son. Rath is a 2014 graduate of Marion High School.
The U.S. Mine Safety and Health Administration said:
On the night of Dec. 8, a fatal accident occurred at the mine listed below. Preliminary information indicates that the victim was transporting a trailer loaded with longwall face conveyor chain into the mine via a slope entry. The trailer travelled over the tractor in which the victim was operating, striking the operator’s compartment. An investigation is ongoing.
MSHA said that incident occurred at M-Class Mining LLC’s MC #1 Mine. The mine had one fatal accident in 2013 and another in 2014, according to MSHA.
This is the 11th coal mining death in the U.S. in 2015 and the 2nd in Illinois, according to MSHA’s official count.
While M-Class Mining LLC operates the mine, Foresight Energy, founded by coal operator Chris Cline, is the ultimate owner of the mine, said spokesman Gary Broadbent. Foresight entered into a deal earlier this year by which Murray Energy, founded by Bob Murray, acquired “a significant economic interest” in Foresight.