$10.8 million penalty by Labor Dept for 29 dead at Upper Big Branch mine

The U.S. Department of Labor's Mine Safety and Health Administration (MSHA) released today the findings of its 20 month-long investigation into the Upper Big Branch coal mine explosion. The April 5, 2010 disaster killed 29 workers, seriously injured another worker, and left hundreds of grieving family members and friends. MSHA identified 12 violations of safety regulations that contributed to the cause or the severity of the disaster. Nine of the 12 contributory violations were classified as "flagrant" infractions which come with a $220,000 penalty each (for a total of $2.64 million). In addition to these contributory violations, MSHA investigators identified an additional 357 non-contributory citations and orders, that combined make-up the $10.8 million penalty---the largest in MSHA history. The contributory violations include:

Failure to conduct mandatory pre-shift, on-shift, and weekly examinations of areas where miners were expected to work or travel. (30 CFR 75.360, 30 CFR 75.362), (30 CFR 75.364) MSHA offers numerous examples to substantiate its finding, including evidence of foremen (that is, "agents of the mine operator") not turning on gas detectors to assess concentrations of air toxics, not traveling to and making examinations of all required areas in the mine, and not testing for methane at required time intervals.

Failure to immediately correct hazardous conditions or post with "Danger" signs, (30 CFR 75.363(a)) including 937 areas with accumulations of dangerous levels of coal dust observed between March 1, 2010 and the day of the explosion.

Failure to correct accumulations of float coal dust, (30 CFR 75.400) including dust as thick as four feet deep and 120 feet long in certain travelways. MSHA's investigators suggest some of these accumulated coal dust was created when some of these entries were initially developed. (Why inspectors didn't require the mine operator to correct this serious hazard is a question that MSHA and the State of WV's mine safety agency have yet to answer.)

Failure to apply and maintain adequate concentrations of rock dust to reduce the explosibility of coal dust in the mine environment (30 CFR 75.403)

Failure to follow an approved mine ventilation plan, (30 CFR 370(a)(1)) with MSHA noting that the operator had been cited 33 times in two years for this same illegal act.

We can compare MSHA's record $10.8 million penalty to the steepest penalty assessed by the Labor Department's other worker safety enforcement agency---OSHA. Following the 2005 catastrophic explosion at the BP Texas City refinery which killed 15 workers, OSHA assessed a $21 million penalty. (A subsequent penalty of $87 million was proposed by OSHA in 2009 to BP for its failure to comply with a settlement agreement.) In MSHA history, its largest penalty had been the $1.85 million penalty assessed to Robert Murray's Genwal Resources following the August 2007 disaster that killed 9 workers. To-date Genwal Resources has not paid that penalty because the company contested the citations.

MSHA's investigation report on the Upper Big Branch disaster describes Massey Energy and Performance Coal Company (PCC) as an employer that "...promoted and enforced a workplace culture that valued production over safety." The MSHA investigators concluded that "miners were routinely intimidated by PCC and Massey managers. They did not report safety problems at the mine because of fear of retaliation."

MSHA's report was made public shortly after the U.S. Attorney for the Southern District of West Virginia announced a settlement with Alpha Natural Resources. The US Attorney, R. Booth Goodwin II, described the agreement as

"the largest-ever resolution in a criminal investigation of a mine disaster. It addresses only the corporate criminal liability of the former Massey, not potential criminal charges for any individual. The criminal investigation of individuals associated with Massey remains ongoing. Alpha has cooperated with the federal criminal investigation since the merger, in addition to implementing a number of safety improvements."

In the deal, Alpha agreed to: resolve contested cases and pay $34 million in unpaid penalties assessed to former Massey mines including those related to the Upper Big Branch disaster; invest $80 million over at least the next two years in safety improvements at its underground coal mines, including new technology and safety training; create a $48 million fund to support mine safety research; and establish a trust fund of $46.5 million to compensate the victims' families. These commitments total $209 million.

News accounts today are describing the federal government's action as unprecedented. That may be the case, but does "unprecedented" go far enough to address the industry and company culture that caused the Upper Big Branch disaster?

More on that later.

Celeste Monforton, DrPH, MPH was part of the West Virginia Governor's Independent Investigation Panel examining the Upper Big Branch disaster. This team released its report in May 2011.