MSHA poised to issue investigation report on Upper Big Branch disaster

The US Department of Labor's Mine Safety and Health Administration (MSHA) is preparing to issue next week its investigation report on the April 5, 2010 coal mine disaster at the Upper Big Branch mine that killed 29 workers. Ken Ward, Jr. at Coal Tattoo reports that MSHA will hold a media briefing at 3:00 pm (EST) on December 6 at its training academy near Beckley WV. The Charleston (WV) Gazette reporter reminds us that December 6 is an ominous date. It marks the 104th anniversary of the Monongah disaster, the worst mining disaster in U.S. history.

MSHA's investigation report will be the fourth written report issued on the disaster. (More below on the other reports.) MSHA's report will be the culmination of 20 months of work by dozens and dozens of mining engineers and other specialists, many of whom spent thousands of hours in the mine collecting and assessing evidence. I expect it will be a 500+ page document laying out in intricate detail the mechanical, geological, chemical and other physical conditions which were the probable cause of the explosion. It will also contain diagrams, photos, illustrations and maps to complement the report's text. I also won't be surprised if MSHA offers on its website animated visuals, such as a multi-media presentation of the moments before, during and immediately after the coal dust explosions.

One of the first things I'll do when I see MSHA's report is flip to the back of it.

This is where the agency will note whether Massey Energy Alpha Natural Resources (the owner of the Upper Big Branch and its liabilities) will be receiving any "contributory violations." These would be specific violations of federal mine safety regulations that MSHA determined "contributed to the causes and effects or severity" of the disaster. For example, after the 2007 Crandall Canyon disaster, which claimed the lives of nine men, MSHA issued 9 contributory violations to Robert Murray's Genwal Resources. In contrast, after the 2006 Sago mine disaster where 12 miners were killed, MSHA did not issue any contributory violations.

Monetary penalties for MSHA violations can range from as little as $100, but for cases involving serious injury or death, MSHA will typically consider applying its "special assessment" authority with a $70,000 maximum per violation. MSHA also has the authority to classify a violation as "flagrant" which comes with a $220,000 penalty. This category of violation was authorized in the MINER Act of 2006, a law passed in response to the 2006 Sago disaster. Congress defined a flagrant violations as

"a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory safety and health standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury."

If MSHA issues contributory violations, I'll be looking closely to see if any are given the flagrant classification. As some observers have noted, MSHA did not use this hefty enforcement tool against the Upper Big Branch (UBB) mine operator before the disaster, despite the fact that the mine had been cited dozens of times in the preceding year for violating ventilation plan requirements.

Since the April 5 disaster, MSHA has already issued 1,006 citations to the UBB employer-operator for safety and health violations. The proposed monetary penalties assessed for 967 of them total $989,060, with the remaining 39 awaiting a penalty assessment. To-date, the company has paid a little less than $43,000 of the assessed penalties, and has contested 68% of them. Alpha Natural Resources took control of the UBB mine on June 2 when it purchased Massey Energy. The majority of these post-disaster citations for safety violations at the UBB mine were issued when Massey Energy was the controlling employer. This was also the time when the MSHA officials were in heavy presence at the mine for the on-site portion of their investigation and had more opportunity to see safety hazards and violations.

MSHA's report due to be issued next week will be the fourth one written about the disaster. The first was one prepared by an independent team (of which I was a member) led by J. Davitt McAteer on behalf of former WV Governor (now US Senator) Joe Manchin. It was released on May 19, 2011 and identified the technical cause of the catastrophe: a ricochet of deadly coal dust explosions, triggered by a spark that ignited a pocket of methane created by inadequate ventilation. The independent team blamed the disaster on corporate officials and managers who created a company culture in which deviance---in dozens of respects----was the norm. (See the chapter "Normalization of Deviance.")

A second report was released on June 2, 2011 by the former chairman of Massey Energy's Board of Directors, and to the chagrin of the firm's new owner Alpha Natural Resources. This report insisted that an unforeseeable inundation of natural gas caused the explosion and "coal dust did not contribute materially to the magnitude or severity of the blast." It also called federal MSHA's investigation of the disaster "deeply flawed" by questioning the agency's ability to assess its own role in the conditions leading up to the catastrophe.

A third report was issued on October 26 by the United Mine Workers of America (UMWA) with the discussion-provoking title "Industrial Homicide." None of the Upper Big Branch miners were members of a union before the disaster, but soon after several of them designated the UMWA as their "miners' representative." This allowed expert union staff to participate on behalf of the miners in some parts of MSHA's investigation. The UMWA concurred with the independent panel's findings that sparks created by the cutting shearer ignited a pocket of methane, and suspended coal dust initiated a massive dust explosion. The union's paramount conclusion is that government prosecutors should be able to hold company officials criminally responsible for the dangerous conditions that led to the 29 miners' deaths.

A fifth and sixth report are also in the works. Shortly after the disaster, MSHA chief Joe Main appointed a group of MSHA staff to conduct an internal review of the agency's performance inspecting the Upper Big Branch mine and ensuring the operator's mining plans complied with all safety requirements. I don't know whether this self-assessment report will be issued in tandem with the agency's investigation report, as was the case with the Crandall Canyon disaster report. Following that catastrophe, two former (retired) MSHA officials were tapped by Labor Secretary Elaine Chao to conduct the internal review and they prepared a scathing report. Hilda Solis didn't follow that model to use evaluators outside the agency to assess the agency's performance. She decided to add a different level of review. The Labor Secretary asked NIOSH director John Howard to identify a team of individuals "to provide an independent analysis of MSHA's internal review." I'm thinking of it as a review of the review.

Some Members of Congress have been reluctant to propose beefing up the federal mine safety law. They said it was premature to do so until the Upper Big Branch investigations were completed. After next week, lawmakers will have access to four different reports. Each describes all that went wrong and makes recommendations on how to fix deficiencies in the law, company practices, and agencies' performance. It will be interesting to see how quickly these lawmakers propose and debate relevant reforms to improve protections for workers.