The day after the emotionally-charged memorial service for 29 miners in Beckley, W.Va., concluded, the gloves came off. Something went terribly wrong at Massey Energy’s Upper Big Branch (UBB) mine. All sides admit that. Massey Energy, however, was not going to standby idly as its detractors alleged wrong-doing. Correctly determining who or what was at fault and the chain of events that led to the explosion will have long-term implications for the coal business and the fate of Massey Energy.

Massey Energy immediately called a press conference where it tried to clarify its position and rebut some of the statements that already had been made. The Mine Safety and Health Administration (MSHA) handled the press effectively during the rescue effort, but may have muddied the waters some during the agency’s investigation announcement. The United Mine Workers of America (UMWA) began to fan the flames before the miners could be laid to rest. The union has an agenda and they have an ax to grind. Investment groups were calling for Massey Energy CEO Don Blankenship to step down, but the company’s board supported the executive.

Acting on orders from the president himself, MSHA began a nationwide inspection blitz on underground coal mining operations. The agency also conducted surprise inspections at several Massey Energy operations. MSHA is simultaneously conducting an investigation into the root cause of the explosion. Once it is completed, the agency plans to convene public meetings so the victims’ families, the mining community and the general public can learn what happened. It is also conducting an internal investigation.

Some details regarding the UBB explosion spilled out in a previously scheduled Senate hearing. The U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing, Putting Safety First: Strengthening Enforcement and Creating a Culture of Compliance at Mines and Other Dangerous Work Places, on April 27, 2010. The committee heard testimony from MSHA, the UMWA, and others. The only group supporting the side of mine owners was the National Mining Association (NMA). Politicians are now discussing new strategies for health and safety compliance.

This is only the beginning of a series of events that could potentially reshape the underground coal mining business in the U.S. The executives at Massey Energy are intelligent, the company has deep pockets, and they have tangled with all of these groups before.

Massey Energy Responds
On April 26, 2010, Massey Energy held a press conference to address the explosion at the Upper Big Branch mine. The company explained the first and most important consideration is providing care for the families of the 29 miners who died. Massey Energy said it would provide these benefits without requiring any family to settle any legal issues. These benefits, according to the company, are designed to ensure that no family will have to worry about missing a paycheck, paying a medical bill or sending a child to college. At least one media outlet inaccurately suggested the benefits were being provided to settle lawsuits.

The next order of business for the company is to get to the bottom of what happened. Massey Energy said it is cooperating with all federal and state regulatory agencies involved in this investigation and it is committed to working together to determine the cause of the accident, and to prevent it from ever happening again.

“We are fully dedicated to figuring out what happened if humanly possible to do so,” said Don Blankenship, chairman and CEO, Massey Energy. “We owe to the families, and to the industry, and to the public our best and sincerest efforts to find the cause of the explosion. It is critical that we find out the facts so that all Massey and industry coal miners can work without fear of another explosion. Once the facts are known, we will enact corrective processes at Massey immediately and encourage regulation and laws focused on eliminating the chance of a reoccurrence.”

The company then proceeded to play its first card. “It is important to note that the longwall at UBB was not operating with the same ventilation system that it began with in September 2009,” said Stan Suboleski, a Massey Energy director. “MSHA required us to change that system and we complied. Recognizing that professionals can reasonably disagree on the best method of ventilation at a mine, we have discovered the following: MSHA required several changes since that date that made the ventilation in this area significantly more complex; the volume of fresh air to the face was significantly reduced during this period; and our engineers resisted making the changes, in one instance to the point of shutting down production for two days, before agreeing to MSHA’s ventilation plan changes.”

Following the press conference, MSHA claimed that Massey could have chosen to repair conditions rather than revise the ventilation plan as proposed by MSHA. The agency’s statement that the mine operator had the option to repair mining conditions is inaccurate, according to Massey Energy. In fact, MSHA rejected the company’s proposed plans to rectify mine conditions and instead required the ventilation change. According to Massey Energy, MSHA also inaccurately stated that the required ventilation change was made after two orders were written in January 2010. The two orders were actually written on January 11 and abated within minutes and no plan changes were required or requested by MSHA at that time.

The same day, MSHA issued a press release saying inspectors cited several illegal mining practices during surprise inspections at three Massey Energy mines in West Virginia. Massey confirmed that inspections took place at three subsidiaries.  The company said it disagreed with some of the citations and admitted there were conditions found that did not meet industry requirements. As the result, several miners were either discharged or suspended.  All of these actions, according to the company, were taken well in advance of MSHA’s press announcement.

HELP Committee Hears Testimony
U.S. Senate HELP Committee Chairman Tom Harkin (D-IA) calls the hearing to order. He comments on the situation before turning it over to a panel of speakers, which included among others Joe Main, assistant secretary of labor for mine safety and health; Cecil Roberts, president, UMWA, , and Bruce Watzman, senior vice president for regulatory affairs, NMA.

“The topic of today’s hearing couldn’t be more timely, or more important,” Harkin said. “In the wake of the West Virginia coal mining disaster that killed 29 miners; the refinery explosion in Anacortes, Washing-ton, where seven workers died; the disaster that killed six people at a Connecticut natural gas power plant; and just last week a blast on a Louisiana oil rig off the Gulf of Mexico that most likely killed 11 workers, it is time to focus renewed attention on the safety of American workers. This string of recent worker deaths and injuries is a grim reminder that too many employers cut corners on safety, and too many workers pay the price with their lives.”

The son of a coal miner, Harkin said he feels these losses very deeply, on a very personal level and his  thoughts and prayers are with the families and coworkers of those killed, injured or missing because of these awful tragedies.

“One area in our health and safety laws that needs particular attention is enforcement,” Harkin said. “While the vast majority of employers are responsible, and do all they can to protect their workers, there is, unfortunately, a population of employers that prioritize profits over safety, and knowingly and repeatedly violate the law. The deadly blast at the Upper Big Branch coal mine earlier this month was a tragic example of the dangers of this approach.

“This facility had a record of numerous and serious safety violations, including 515 violations last year alone; that’s 76% more than the national average,” Harkin said. “So far this year, it has already accumulated 124 additional violations. Even more troubling, 48 of these accrued citations were repeated significant and substantial (S&S) violations of safety standards that the mine operator knew or at least, should have known, presented a serious threat to worker safety.”

Unfortunately the penalties for breaking the law are often so minimal that employers can dismiss them as a minor cost of doing business, Harkin explained. “In addition to putting real teeth in our safety and health laws, we have to make sure that our federal agencies have the enforcement tools they need to identify mines and non-mine workplaces with the worst safety records in the country and hold these repeat offenders accountable,” Harkin said. “We have provisions in our laws that are supposed to target repeat offenders, but these special rules are often rendered ineffective—either weakened through mistaken interpretation, or undermined by employers who will go to great lengths to game the system.

“There is no question that a mine like Upper Big Branch should have been receiving special scrutiny under the pattern of violation (POV) provisions of our mine safety laws,” Harkin said. “This is an operator that—even in the wake of the worst mining disaster in recent history—continues to use such unsafe practices that just today MSHA ordered the withdrawal of miners from three different Massey mines due to hazardous conditions.

“But, as bad as UBB’s record was, the law has been interpreted to allow them to continue operating without POV treatment as long as they can reduce their violations by more than one-third in response to a written warning,” Harkin said. “With a record as spotty as UBB’s, a partial reduction in their numerous citations is hardly a sign of a safe mine.”

Employers also find creative ways to ensure that the system cannot work as Congress intended, Harkin explained. “In the mining industry, for example, some chronic violators have avoided being placed on POV status and avoided paying legitimate penalties by contesting nearly every citation that is assessed against them,” Harkin said. “Because MSHA uses only final orders to establish a POV and the average contested citation takes over a year to adjudicate due to a 16,000-case backlog at the Federal Mine Safety and Health Review Commission, repeat offenders are able to evade POV status by contesting large numbers of violations. At the Upper Big Branch coal mine, for example, Massey contested 97% of its S&S violations in 2007.

MSHA and federal prosecutors need more tools to investigate and punish wrongdoing, Main explained. “Gaps in MSHA’s legal tools undermine the deterrent effect of its investigative powers,” Main said. He gave a detailed overview of the rescue efforts and confirmed the mines history of citations. He also blamed the failure to recognize the UBB for potential POV status on a computer glitch.

“Were it not for a computer error in the screening process, the mine could have been placed into potential POV status in October 2009, when the last POV review for this mine took place,” Main said.

“The weaknesses in even our strongest tools are clearer in the wake of the Upper Big Branch tragedy,” Main said. “The path we need to be on to strengthen those tools is clearer, too. Undoubtedly, as we learn more about what happened at Upper Big Branch, we will have more and better ideas about how to change our practices, regulations and law.”

Main then recommended a set of steps the agency would like to take. Specifically, he called for whistle blower protection in the law, the power to subpoena companies and individuals promptly, and enhanced criminal penalties that make knowing violations felonies.

As one would expect from an organized labor leader, Roberts blames the companies. “Even though the goal of the POV provision is to reduce violations, the reality is that it is still too easy for a law-breaking operator to make some temporary fixes simply to escape the POV consequence without making the significant, systemic health and safety improvements necessary to turn an unsafe operation into a safe one,” Roberts said.

According to Roberts, it’s time to hold CEOs and corporate boards of directors accountable when the facts reveal systematic problems with health and safety compliance. “It’s not enough to issue fines or levy charges against low-level managers who violate the law when they are doing what their supervisors direct and expect,” Roberts said. “There is something dreadfully wrong when corporate executives are eager to speak about their productivity and profits, but reluctant to consider the cost to their workers.

“For the UBB investigation, we are encouraging MSHA to hold public hearings,” Roberts said. “Doing so would allow the government to subpoena witnesses, and would give it the right to question top management. We are convinced that the many problems that contributed to the explosion at UBB did not develop at the foreman or mine supervisor level, but reflect corporate policies that should be heard in the open. Only be conducting an open hearing will miners, the public, and the families of those killed be able to learn what really happened.”

Mine safety is the primary responsibility of mine operators but regulators must use, rather than substantially broaden, the considerable authority they have to enforce laws and rules designed to protect miners, Watzman explained. The NMA lobbies for mining in Washington.

“We do not accept mine tragedies are inevitable,” Watzman said. “It was the shared responsibility of both operators and MSHA that led to dramatic improvement in mine safety, including record-breaking safety performance for the past two consecutive years.” Watzman also stressed behavioral, cultural and leadership factors that go beyond regulatory authority and enforcement are important factors necessary for continued mine safety progress.

“Procedural changes and additional resources, not more regulation, are adequate to eliminate the backlog of contested citations that does not serve the interest of miners or the interest of mine operations,” Watzman said.

Massey Energy said it was disappointed the Senate hearings degenerated into political grandstanding. In 2009, MSHA awarded Massey Energy three Sentinels of Safety Awards—the most ever received by a company in a single year. At the time of the awards presentation, Main stated the winners, including Massey, “are leading by example, and they are leading the way to a safer mining industry.” The company also said the statements by Roberts were simply outrageous. In a statement, Massey Energy said he obviously believes he can use the UBB mine tragedy to promote his agenda—an agenda that most miners in America (including at UBB) have repeatedly rejected.

MSHA Changes Its Mind
Buried at the end of an MSHA press release touting transparency in the UBB investigation issued on May 6, 2010, is a statement that says, “Prior to and in preparation for the public hearings, MSHA and the state of West Virginia will conduct a physical examination of the mine and private interviews of miners, mining officials and others with knowledge and information about the disaster. The contents of these investigative interviews will be made public at the conclusion of the interview process, unless an interviewee requests confidentiality or it would otherwise jeopardize a potential criminal investigation.” The agency said it would hold two public hearings, two public forums and a public comment period as part of its overall federal investigation into the UBB explosion.

The thinly disguised maneuver fooled no one. Massey Energy issued a statement saying MSHA is choosing to repeat past mistakes of coal mine investigations by refusing due process and failing to build the public’s confidence that the hearings will be fair and develop a complete and balanced public record.

MSHA also announced it would expand its investigation group to augment the efforts of the agency’s accident investigation team. This investigation group will be led by former MSHA employee Robert Phillips, a 27-year veteran of the agency and, prior to his recent retirement, manager of the Coal Mine Safety and Health District Office in Vincennes, Ind. The additional MSHA investigation group will monitor and respond to an anonymous tip line it has established (877-827-3966).

MSHA also announced it had formed an internal review team to evaluate the actions of the agency prior to the UBB explosion and to make recommendations for improvements where appropriate. The internal review team, headed by Jack Kuzar, manager of the Coal Mine Safety and Health District Office in Wilkes-Barre, Pa., will compare MSHA’s actions with the requirements of
the Federal Mine Safety and Health Act of 1977, its standards and implementing regulations, and MSHA policies and
procedures.

The National Institute for Occupational Safety and Health (NIOSH) announced the members of a panel that will examine the process and outcomes of the MSHA internal review. The members are:
•    Lewis V. Wade, Ph.D., former senior science advisor to the director of NIOSH.
•    Michael J. Sapko, M.S., retired NIOSH senior physical scientist..
•    Alison D. Morantz, Ph.D., J.D., M.Sc., associate professor of law and John A. Wilson Distinguished Faculty Scholar at the Stanford Law School.
•    NIOSH Director John Howard, M.D., J.D.

U.S. Secretary of Labor Hilda L. Solis asked Dr. Howard to identify a team with relevant experience to provide an independent analysis of MSHA’s internal review. “Together, the panel represents an impressive breadth and depth of applied knowledge and experience in public policy management, science policy and practice, the technical intricacies of mining operations and mining safety engineering, and public law,” Dr. Howard said. “This is an ideal team to engage the important task at hand.”

Less than a month into the UBB investigation and it already appears that there is plenty of blame to go around and all sides are preparing a defense. Sadly though, the families are no closer to understanding what happened to their loved ones.