by Tom Bethell

Twenty-nine coal miners lost their lives in last week’s massive explosion at Massey Energy’s Upper Big Branch mine in West Virginia.

Why?

Part of the answer to that question will have to wait until the federal Mine Safety and Health Administration (MSHA) conducts its investigation of the disaster.  Only then will we know precisely where the ignition point was and why methane was allowed to build to the point where it constituted 5 to 15 percent of the mine atmosphere — the range at which the otherwise inert gas becomes lethally explosive.

But no one familiar with the coal mining industry will have to wait to answer the larger question:

Why do coal miners die?

They die because of negligence.  They die because the company they work for cares more about running coal than making mines safe.  And they die because the federal agency that is charged with protecting them fails in its mission.

About the first instance of negligence there can be no question.  The explosion was too violent and too extensive to have been caused by a pocket of methane alone.  The initial blast must have ignited coal dust — which is even more explosive than methane — and that couldn’t have happened if management had been diligent about cleaning up accumulations of loose coal, particularly along the conveyor belt carrying coal out of the mine.  But we know from MSHA’s inspection records that maintenance at Upper Big Branch never got top priority.  That went to production — regardless of how many times the mine was cited for lax safety practices.

The mine was projected to earn $145.6 million for Massey this year, and nothing was going to get in the way of meeting that goal. Massey CEO Don Blankenship has dismissed any and all criticism as the work of “the enemies of coal.”  He’s God, in short, and you’re not.

Enough said about Massey.  But is it fair to accuse MSHA of negligence? After all, it’s the mine owner’s responsibility to run a safe mine.  And, as MSHA deputy director Greg Wagner repeatedly said last week, “We can’t be in the mine all the time, in every place in the mine.”

That’s true — obviously.  But it begs the question. MSHA has been and continues to be negligent because it has stubbornly resisted using all of the enforcement tools provided to it under federal law.

Going back to 1969, when the first genuinely tough federal mining law was enacted (after a 1968 explosion killed 78 West Virginia miners), concerned lawmakers have been doing whatever they can to empower MSHA.  Most importantly, the agency has the power to close a mine or section of a mine and to withdraw the miners under a variety of circumstances: if an imminent danger exists; if the mine operator fails to abate a violation within the time fixed by a citation; if there are hazards caused by the operator’s “unwarrantable failure” to address “significant and substantial” health and safety standards; if an operator who has been issued a withdrawal order commits a repeat violation; and if inspectors find a pattern of violations.

MSHA is also required to impose penalties whenever violations are cited.  But penalties, although necessary, have never been MSHA’s most effective weapon, in part because they can be and routinely are appealed — a process that can take years. And penalties rarely make much of a dent in a company’s bottom line, especially for companies as large and profitable as Massey.

So what does get their attention?  It’s the power to halt production and pull the miners out of the mine until an unsafe condition is corrected.  When production stops, profit stops. And it’s that power that MSHA has failed to use to the full extent provided by law.

Why?  The reasons are complex, but the short answer seems to be that the higher you go up the command chain at MSHA, the more you encounter weak knees.  Labor Department lawyers, some of whom seem unduly intimidated by their much higher-paid company counterparts, have a long history of looking for ways to rein in aggressive inspectors and district managers, in part to avoid getting sued.  One result is that MSHA has never used its pattern-of-violations power to shut down a consistently dangerous mine.  What good is a two-by-four if you don’t use it to get the mule’s attention?

But the pattern-of-violations power isn’t MSHA’s only tool.  Progressive enforcement — ratcheting up citations and the scope of withdrawal orders when a foreman or mine boss fails to shape up after the initial citation —

 “is a good tool and should be used to the fullest,” in the words of one former district manager.  “It gets attention better than fooling with the pattern-of-violation guidelines.”

And then there’s the blitz.  When Davitt McAteer headed MSHA during the Clinton administration, he asked his district managers to identify their worst “bad actors.”  Then, on more than one occasion, he would inform a company CEO, on a Friday, that he was getting ready to augment regular inspections by sending a dozen or more inspectors into a troubled mine on Monday morning. 

“It was amazing how clean that mine would be by Sunday night,” he recalls.

Enforcing mine safety is a bit like warfare.  Infantrymen aren’t likely to charge ahead if they don’t think the sergeant’s got their back.  Sergeants need to know that lieutenants and captains have got their back.  And so on, all the way to the top.  That was definitely not true at MSHA during the Bush administration, when inspectors were told to  focus on “compliance assistance.”  Whether it will become true during the Obama administration remains to be seen.  Meanwhile, miners remain at risk.

Veteran mine safety advocate Tony Oppegard, a former MSHA enforcement lawyer who now represents Kentucky miners, plans to work with the Appalachian Citizens Law Center, headquartered here in Letcher County, to push for any regulatory revisions that may be needed to help MSHA force repeat offenders to shape up or shut down.  He doesn’t buy the fatalistic argument that allowing some CEO to put your life at risk is a fair trade-off for working in one of Appalachia’s few good-paying occupations.  “Coal miners shouldn’t have to accept safety violations to earn a living,” Oppegard says.

If that simple message ever sinks in at MSHA — with or without regulatory changes — we’ll be on our way to a new era of responsibility and accountability.  Until then, miners will die from negligence.

The editorial was written by The Mountain Eagle Contributing Editor Tom Bethell, who has covered coal for the paper off and on for nearly 40 years. Based in Washington, D.C., he is also the author of The Hurricane Creek Massacre, a book about a 1970 mine disaster, and is a former research director of the United Mine Workers of America.  He was part of the McAteer team that conducted the special investigation of the Sago mine disaster in 2006. 

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