May 19, 2011
The McAteer Report: A Mine Safety Blockbuster
by Thomas McGarity
The report issued this morning by the Governor's Independent Investigation Panel on the West Virginia mine explosion that killed 29 miners at the Massey Energy Company’s Upper Big Branch Mine just over a year ago will never make the New York Times best seller list. But it should be required reading for all policymakers with responsibility for protecting the safety of the workers who spend much of their lives deep underground digging coal.
Although the Mine Safety and Health Administration (MSHA) and Massey Energy have conducted their own investigations (MSHA's is forthcoming) into the causes of the tragic explosion, Joe Manchin, then the Governor, correctly assumed that the full story was not likely to come out of two entities with such an obvious stake in the outcome. He asked Davitt McAteer, the head of MSHA during the Clinton Administration and a long-time advocate of greater safety in the nation’s underground mines to assemble an independent and objective panel to investigate the explosion. McAteer brought together a team composed of experts without any special connection to the coal industry or its regulators.
The tightly drafted 120-page report provides a clear and detailed account of events that preceded and followed the explosion and of what we know about its causes based on its own examination of the physical evidence and on more thant 300 interviews with persons involved in the explosion and in the management of the Massey Energy Company.
The panel concludes that the immediate cause of the explosion was methane gas that had reached unsafe levels in the mine. Massey Energy took the position that there was a massive entry of methane into the chamber through a crack in the floor that inundated the mine. The governor’s panel, by contrast, concluded that the explosion was caused by a small amount of methane that, once ignited by a spark from a shearer, caused a fireball that spread to coal dust that had inexcusably been allowed to build up for miles throughout the mine. The coal dust in turn carried the explosion throughout more than two miles of the large mine. The report implies that the ignition of a small amount of methane would not have caused the massive explosion and that absent the negligent accumulations of coal dust, the miners might well have survived the explosion.
The panel, in other words, concludes that the explosion was entirely foreseeable and to a large degree preventable.
The mine also had a serious ventilation problem that resulted in too little oxygen being available to the miners in the areas that were being worked. Numerous other problems strongly indicated that safety was at best a secondary consideration in the mine.
The report also examines why the company did very little to prevent the foreseeable explosion. The explanation was a simple one. The company routinely placed profits over safety. A chapter entitled “The Massey way” provides a detailed history of a company for which running coal was a much higher priority than protecting workers. The company’s mines had been cited tens of thousands of times for “significant and substantial” violations of MSHA requirements; Massey paid small fines (often after lengthy appeals) and returned to running coal. The fines were merely a cost of doing business.
Finally, the report examines the role of the state and federal agencies in causing the explosion. In the case of the state, it notes that the inspectorate of the state Office of Miners’ Health Safety and Training was far too small to give adequate attention to all the state’s 261 underground mines. MSHA’s tiny inspectorate was likewise too small to fulfill its responsibilities.
The report thoroughly debunks Massey Energy’s arrogant contention that many of the problems encountered at the mine were caused by MSHA regulations, and not the company’s own neglect. The report simply states the obvious -- mine safety is the responsibility of the operator, not the government.
In a rare departure from investigations of this genre, the Governor’s panel addresses in a straightforward fashion the raw political power that Massey Energy CEO Don Blankenship exercised over the state’s government and judicial system by virtue of his willingness to contribute millions of dollars to elect politicians and judges who shared his laissez faire minimalist views of government regulation. Blankenship’s power was on full public view in 2009 when the U.S. Supreme Court held that one the State Supreme Court justices who voted in favor of Massey Energy in a dispute with a rival coal company should have recused himself because of the large political contribution that Blankenship had made to his campaign.
Over time lax regulation combined with a culture of complacency in the company to produce what the report calls, in a very insightful chapter, “the normalization of deviance.”
The only way to reduce the incidence of these tragedies in the future is to write stringent regulations and to enforce them strictly.
The report makes several recommendations for more stringent regulations that MSHA could promulgate in the near future. Unfortunately, it is beginning to look like MSHA, like several other regulatory agencies in the Obama Administration, may be in the process of hunkering down in the wake of the 2010 elections and may not be in regulation-writing mode until after the 2012 elections, if then.
This is not the time for timidity. The proper response to a tragedy like the Upper Big Branch explosion is to fix the statutes and regulations in ways that will prevent similar tragedies in the future. The agency should act on the panel’s recommendations before the end of this year, so that the regulations can be finalized well in advance of the 2012 elections.
On the enforcement front, companies must be forced to pay high enough fines for “serious and significant” violations that the penalties for hundreds of violations in a given year will eat substantially into the company’s profits.
In addition, as the report recognizes, something needs to be done about the fact that an operator does not pay any fine until the lengthy process of appeals to the Mine Safety and Health Review Commission have run their course. As a consequence, operators willing to challenge every citation have avoided paying fines for many years without any adverse financial consequences. More importantly, the mere threat of a challenge is often enough to induce MSHA officials to lower the fines to levels that are acceptable to the operators, thus ensuring that they have little impact on the company’s future conduct.
Congress should amend the law to force operators to pay assessed fines into an escrow account where any interest earned will go to the public treasury and not to the company if the challenge proves unsuccessful.
We all owe an enormous debt of gratitude to the workers who risk their lives mining the coal that produces the power that lights our homes and offices. But they deserve more than gratitude. They deserve a workplace that is free of recognized hazards and that reflects the best available mine safety technologies. The Governor’s panel report identifies many things that Congress and MSHA can do to improve worker safety in underground mines. Out of respect for the miners who died in the Upper Big Branch explosion, Congress should enact new legislation aimed at changing the culture of companies like Massey Energy, and MSHA should promulgate stringent regulations requiring operators to employ the best available safety technologies.
Thomas McGarity, CPR Member Scholar; Endowed Chair in Admin. Law, University of Texas School of Law. Bio.
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