Sunday, April 11, 2010

A Preventable Tragedy at Upper Big Branch Mine

Last Monday turned tragic when 29 miners lost their lives in an explosion at the Upper Big Branch coal mine in West Virginia. But this time mixed with the grief over the tragedy was anger at the owner of the mine, Massey Energy which had been cited with a history of violations.

The Upper Big Branch coal mine, where an explosion Monday killed 25 miners (now 29), has a history of serious violations that at points were five times more extensive than the national average, according to federal records.

The mine in Raleigh County, near Beckley, W.Va., was cited for 458 safety violations last year, with 50 of them listed as unwarrantable failures to comply -- citations reserved under federal mining regulations for instances of willful or gross negligence.

Nationwide, an average of 2 percent of safety violations are unwarrantable failures. Slightly more than 10 percent of Upper Big Branch mine's violations last year were unwarrantable failures.

At the time of Monday's explosion, Upper Big Branch mine was facing more than $150,000 in fines for pending safety violations, after routine scheduled inspections resulted in more than 100 citations three times in a 12-month period.

When a mine gets this many citations as a result of inspections that are actually announced ahead of time, it’s safe to say that its management is thumbing their noses at the inspectors and the agencies they work for. But this time, its management is being represented by the outspoken and controversial chairman and CEO of Massey Energy, Don Blankenship.

Whether it is because he is the head of Central Appalachia's largest coal producer, a financier of Republican campaigns whose spending has rewritten constitutional law, the lead organizer of a Friends of America Labor Day rally on the site of a mountaintop mine, or a blunt spoken businessman who has taken on environmentalists -- "greeniacs" and "enviros" as he refers to them -- Mr. Blankenship's statements and actions elicit strong emotions.

Those emotions intensified in the wake of the nation's largest mining disaster since 1984. Critics of Mr. Blankenship cite what they say is Massey's long history of violating safety and environmental rules.

But Blankenship has been controversial not just for his strong anti-regulatory views but also his political influence over West Virginia’s Supreme Court which went as far as Blankenship vacationing with its Chief Justice while the court was hearing Massey's appeal of a $50 million dollar jury verdict against him.

So again we have an ideological battle between those on the political left who feel that stronger and better enforced regulations are necessary to help prevent future tragedies and those on the right who argue that regulations are an evil of big government.

Union miners can at least refuse to work in areas that are unsafe until they are repaired. But most miners today do not have union representation and thus have little leverage against an unscrupulous owner. Especially for those workers who live in remote rural locations in Appalachia, they are forced to make a choice between working in substandard conditions and not working at all.

The Mine Safety and Health Administration (MSHA) has been reacting to violations by issuing what are called “withdrawal orders” which means shutting down only the affected parts of the mine until the violations are corrected. This seems reasonable but how effective is this when a mine has shown a continual pattern of violations?

Officials from the department’s Mine Safety and Health Administration issued 54 withdrawal orders to the Upper Big Branch Mine in 2009 and seven so far in 2010, according to the documents. Fifty-four of those withdrawal orders “were issued when inspectors found Massey subsidiary Performance Coal exhibited an ‘unwarrantable failure’ to comply with federal health and safety standards,” Ward writes.

There’s a distinction to be made here. Issuing withdrawal orders is different than closing the mine altogether, which would require MSHA to get court approval first. In cases of closure, officials would have to prove that mine operators showed “a pattern of violations” — a step that’s been complicated by the skyrocketing number of appeals being filed by mining companies to protest citations. (After all, how do you prove a pattern based on violations that are in dispute?)

Indeed, MSHA never even tried to cite the Upper Big Branch for such a pattern, despite the fact that more than 1,300 citations were filed against the mine in the last five years.

But here is the worst part.

The company was tied to eight fatal accidents at West Virginia mines in 2001 and was blasted by investigators for failing to prevent a 2006 fire that killed two miners. It was cited by federal regulators for 1,342 safety violations over the past five years, including two the day of the explosion. Davitt McAteer, former head of the U.S. Mine Safety and Health Administration and chief investigator of the earlier Massey accidents, called that "a huge number" and said that Monday's explosion "should not have happened. It was preventable."

So what we have here is the worst of both worlds. Weak regulations that only require wrist slaps for violations in the form of fines (a civil penalty of no more than $220,000) to go with a regulatory agency that is lax in doing its job. For companies such as Massey Energy who had 2009 earnings of over $104 million, these fines (which are often reduced through appeals anyway) along with political contributions to try and influence politicians and judges are no more than the price of doing business.

There are two obvious changes that need to be made — one to address past violations and another one to address future violations and thus save needless loss of lives.

As for the past, we obviously can’t bring the lost miners back. But in the case of Don Massey (and others like him) who may well have committed repeated criminal negligence pursuing profits at the expense of safety, criminal charges (including manslaughter) must be considered when the preventable loss of life has occurred.

As for the future, we need to start enforcing the existing regulations that totally shut down the mines where a repeated pattern of serious violations is found until all of the violations are corrected to the satisfaction of the inspectors. Fines are just a pinprick. Totally shutting down a mine stops the flow of revenue and profits which would really get a company's attention since it would hurt their all-important bottom line.

Everybody agrees that coal mining is inherently a dangerous occupation and that some accidents and deaths are unavoidable. But it stands to reason that if the offending mines were forced to close until the serious safety violations are fixed, the great majority of accidents and fatalities could be avoided. We rightly safeguard passengers from flying in a plane that was found to have serious mechanical issues until it is satisfactorily repaired. Why can’t we do the same to protect our coal miners?

So in the end, it comes down to what we value more — profits or human lives. The only moral decision is to resolutely come down on the side of human life! Regrettably, it has been shown that some, e.g. the mining and health insurance industries, that profits are often indeed more important than human lives. We must do what we can to correct those on the other side whether it is by coercion, legislation, or where appropriate, punishment by jail time.

If we are to truly call ourselves a moral society, we can do no less!

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