Mine safety still an issue on Upper Big Branch anniversary

Posted on behalf of Stewart Bell, PLLC on Apr 04, 2011 in Coal Mining Accidents

One year ago, April 5, 2010, an explosion ripped through West Virginia's Upper Big Branch mine. It spread out in a "T," extending two miles in one direction, three miles in the other. One survivor said the blast felt like a hurricane -- almost blown off his feet, he made it out of the mine's portal in a cloud of flying equipment and debris. The disaster claimed the lives of 29 workers -- the worst mining accident in 40 years.

A year later, the cause of the blast still isn't known. Three separate investigations -- one by the federal Mine Safety and Health Administration, one by state regulators and an independent study -- haven't reported anything beyond preliminary findings. And Massey Energy Co. has disputed almost everything the investigators say they've turned up.

Still, one year later, lawmakers are confident that a final report will come, some time. As one of the state's U.S. Senators said last week, "With three different investigations ... I know we're going to get to the bottom of it."

He did add that the magnitude of the blast is a major factor in the pace of the investigations. The follow-up to the UBB blast is often compared with the follow-up to the Sago disaster in 2006, but the Sago internal investigation wasn't released until 18 months after the accident. The quick response people remember was at the legislature.

A few days after the UBB accident, the governor promised to move quickly to improve state mining safety laws. He said he didn't want to wait, that West Virginia must act faster than the federal government.

Two mine safety bills were signed into law. If they'd passed in their original forms, mining equipment would be shutting down when methane levels reach 1 percent (stricter than the federal 2 percent standard), and whistleblowers who reported unsafe working conditions would have more legal protection.

Legislators pulled out their blue pencils and gutted the bills before they passed. The methane level proposal will be studied. The whistleblower issue will be studied.

As the state works on the studies that those bills called for, Congress has been trying to follow up on its own pledge to overhaul safety laws.

Congress, however, has done little of substance in the past year.

The Mine Safety and Health Administration has done as much as it can, according to a U.S. Department of Labor official. The agency has increased the number of "impact inspections," entering 200 mines without warning to miners. MSHA has also been flexing previously underused muscle by focusing on and closing down unsafe mines.

Both safety advocates and mining companies complain about MSHA's actions. For safety advocates, the new rigor is laudable but tardy. They cite the lack of citations given Massey for violations at Upper Big Branch. At the same time, Massey's fellow mine operators say that MSHA's enforcement powers are draconian and lead to excessive fines and lasting negative publicity for the mine operator.

The Department of Labor has yet another take on the issue. The problem, said the department's representative, is that the pattern of violations system doesn't work as written. And, he said, the injunctive authority of the agency must be beefed up.

Congress has kept the UBB on its radar with several hearings to revisit the regulatory shortcomings of the Mine Safety and Health Administration that may have contributed to the accident and the 29 miners' deaths.

Still, neither the Senate nor the House has proposed a new law or a revision to existing law. An official from the U.S. Department of Labor recently testified that the changes that need to take place can only be made by Congress, but, again, no action has been taken.

One thing that must improve, said the official, is the pattern of violations law. Under the Mine Act, MSHA has the power to put a mine on pattern-of-violations (POV) status, which can lead to the agency shutting down the operation. A significant loophole in the law has kept the agency from putting any mine on POV status, though. (We wrote about this in our February 7, 2011 post.)

As for shutting down a problem operation, the agency has successfully closed a mine in the past year. The process is clunky at best, according to the Department of Labor official. The case goes to court, and the agency must convince the court that the conditions call for the mine to be closed. The time lag can cost miners their health or their lives.

Many lawmakers have said that passing safety laws before the investigation is concluded would be imprudent. They encourage MSHA to use the agency's existing powers to their fullest extent until the three investigations are complete.

Safety advocates fear that putting off action for a month will mean putting it off for a year or more. With elections coming up in 2012, advocates fear that the memory of the Upper Big Branch explosion and the 29 miners who died will fade, and the system will slide back to what it was before April 5, 2010.


Charleston Daily Mail, "Safety reform remains just talk a year later," Ry Rivard, 04/blog/11

Minnesota Public Radio, "Emergency Reports Detail Slow Mine Blast Response," Howard Berkes, 04/blog/11

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