A "Massey"ive Catastrophe

May 1, 2010
You always recognize the villain in old Westerns: the cold, dead eyes; the choice of money over the safety of the townsfolk; the disdain for the law. Sometimes the villain has a sidekick, often a sheriff or deputy who is corrupt, ineffective or stupid.

It's not hard to figure out who the villain is in the Upper Big Branch South mining disaster. His name is Don Blankenship, CEO of mine owner Massey Energy Co., and he fits all the criteria of a villain. Unfortunately, he had an unlikely sidekick: MSHA, the agency tasked with mine safety.

At an anti-union Labor Day rally last year, Blankenship said, and I quote, “Washington and state politicians have no idea how to improve miner safety. The very idea that they care more about coal miner safety than we do is as silly as global warming.”

Let's ask the families of the 29 miners killed in the April 5 explosion at Massey Energy's Upper Big Branch South Mine in Whitesville, W.Va., if they find Blankenship's words comforting, or if those words ring true to them.

As the investigation into this tragedy continues and fingers are pointed, invariably someone — probably affiliated with Massey Energy — is going to try to blame the actions of the miners for their deaths. They will say that something the miners did or didn't do contributed to what they will call “an accident.” You might even hear the word “unfortunate” somewhere in the explanation, as in “unfortunate accident” or “unfortunate set of circumstances.” MSHA will wash its hands of culpability, saying it did everything in its power to encourage a safe work environment at the mine. Citations were issued, after all, and fines levied.

Speaking as the granddaughter of a West Virginia coal miner, the only error the 29 Upper Big Branch South miners made that I can see was placing any faith in their employer's concern for their safety or in the ability of MSHA to regulate mining operations.

Blankenship and the Massey Energy board of directors — which includes Blankenship and Massey President Baxter Phillips as well as Robert H. “Doc” Foglesong, James B. Crawford, Richard M. Gabrys, Bobby R. Inmann, Lady Judge, Dan R. Moore and Stanley Suboleski, a former Massey official who also served a term on the U.S. Mine Safety and Health Review Commission — sat on their hands as the Upper Big Branch South Mine received 53 citations from MSHA in March, many related to ventilation and build up of methane. In 2009, the mine received over 500 citations for various violations and was issued nearly $900,000 in penalties.

From 2005 to the present, MSHA issued a total of 1,342 safety violations for the mine, proposing $1.89 million in fines. Let me say that again: MSHA ISSUED A TOTAL OF 1,342 SAFETY VIOLATIONS FOR THE MINE IN THE PAST 5 YEARS. Massey contested the citations and has managed to keep the cases tied up in court by taking advantage of loopholes in MSHA regulations and procedures. Most recently, in the 2 months before the disaster, the mine was evacuated three times for methane. Yet despite this long-time pattern of violations, the mine continued to operate.

So is the sidekick, MSHA, stupid, ineffective or corrupt? Massey used MSHA's own policies and appeals process to keep the mine from being placed on a pattern of violations, which would have triggered tougher enforcement. Not that tougher enforcement (short of a shut down) would have phased Blankenship, who called violations “a normal part of the mining process” during an interview with West Virginia's Metronews radio network.

At the Labor Day rally, Blankenship claimed that safety was his “most important job.” His words in light of recent events ring hollow. In fact, a memo sent by him to his deep mine superintendents in 2005 indicated his priorities: “If any of you have been asked … to do anything other than run coal … you need to ignore them and run coal. This memo is necessary only because we seem not to understand that coal pays the bills.”

Criminal prosecutions of employers for negligently harming or killing workers are few and far between because willful, criminal negligence often is hard to prove, and — in reality — rarely exists. Charles Miller, U.S. attorney for the Southern District of West Virginia, already has gone on record saying that if MSHA finds that criminal violations have occurred, his office will “pursue those offenses to the fullest extent of the law.”

Let's hope MSHA bites a little deeper into Massey Energy this time. We need the ineffective sidekick to turn into a hero.

Send an e-mail with your thoughts to [email protected].

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