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Charges of Whitewashing Cloud Mine Safety Investigations

Mine Safety and Health Administration Reluctant to Hold Itself Accountable

by Mike Illis

Massey Energy and mine safety advocates don't agree on much these days. But as government regulators begin their closed-door probe into the cause of April's deadly blast at a Massey mine in southern West Virginia, the two sides have united on one front: Both are questioning the willingness of the Mine Safety and Health Administration to hold itself responsible for potential mistakes leading up to the tragedy - especially if the probe is not made public.

Massey Energy CEO Don Blankenship at a Senate hearing on mine safety last month. (Pete Marovich/ZUMApress.com) "How likely is MSHA to point the finger at itself if the evidence gathered in confidential interviews suggests that its actions contributed to the explosion?" Don Blankenship, Massey's pugnacious CEO, asked Senate lawmakers during a mine safety hearing last month.

If history is any indication, it's not very likely.

Following a number of deadly mine disasters in the last decade, MSHA's internal investigators came to the seemingly contradictory conclusion that although the agency made significant mistakes, it was also not to blame for those accidents. That trend, according to a growing number of mine safety experts, is a disturbing one, not least because the alleged whitewash in those cases relieves pressure on the agency to reform itself.

"They always conclude that MSHA did nothing wrong, so they avoid liability and nothing changes in the agency," said a former MSHA manager who spoke anonymously due to the sensitivity of the topic. "When the time came to do the internal reviews, [they] made sure that MSHA was not blamed."

Tony Oppegard, a former MSHA lawyer who now represents the victims of mining accidents, generally agreed, arguing that while the quality of the internal reviews varies according to their authors, "there's an inherent conflict because you have the agency investigating itself."

"There needs to be a truly independent group of people conducting these investigations," Oppegard said.

All sides agree that the chief responsibility for miner safety lies with the mine operator. But when the companies don't uphold their part of the bargain, it becomes the task of regulators either to force the companies to shape up or to shutter the mines altogether. A failure to do so can have tragic consequences.

In January 2006, the Sago Mine explosion in West Virginia killed 12 miners and injured a 13th. Under the Bush administration, MSHA had adopted a policy of "compliance assistance," under which inspectors were encouraged simply to point out safety hazards and help mine operators comply with the rules, rather than punishing safety violations with fines and other penalties. Although MSHA's internal review found a "failure of personnel to follow established inspection procedures," as well as a failure to correct known weaknesses in enforcing the rules, the authors also made clear that MSHA should not bear any of the responsibility for the tragedy.

"Although the internal review team identified deficiencies in MSHA's actions at the Sago Mine, the team did not find any evidence that the actions of District 3 personnel caused or contributed to the fatal explosion," the reviewers said.

A similar scenario unfolded following the May 2006 explosion at the Darby Mine No. 1 in Harlan County, Ky., which killed five miners and injured a sixth. While the subsequent internal review noted "weak supervisory, managerial, and headquarters oversight" and found that "MSHA did not address the potential for significant problems with faulty seal construction," the authors similarly concluded that MSHA should bear no blame.

"Although the internal review team identified significant deficiencies in MSHA's actions at the Darby Mine, the team did not find any evidence that these deficiencies caused or contributed to the fatal explosion," the report reads.

Indeed, rather than punishing the district manager overseeing the Darby Mine, MSHA recently named him the head of the team that will investigate the cause of April's Upper Big Branch explosion, which killed 29 miners and almost killed a 30th - the deadliest mining accident in 40 years.

Last week, investigators entered the Upper Big Branch mine for the first time since that blast. But MSHA - which hasn't staged a public mine-safety hearing since the Carter administration - has so far resisted all calls to hold one this time around. Opening its investigation to the public would grant the agency subpoena power that it won't otherwise have.

MSHA leaders have argued that voluntary testimony is simply more reliable. "People should understand that private interviews are an important part of our investigation," Solicitor of Labor Patricia Smith said in a recent statement.

Reports indicate, however, that a number of Massey miners are simply not showing up to their interviews with investigators.

"It's a monumental mistake, what MSHA is doing," Oppegard said. "It's doomed to fail." He suggested that MSHA force those witnesses to "come in and plead the fifth."

Meanwhile, the former MSHA manager said that a failure by MSHA to take a hard and honest look at its role in the UBB disaster would be a missed opportuniy to correct some of the inherent weaknesses at the agency, where higher-ups "get caught up in the minutiae" of data collection without following up on what that information reveals.

"They've devised all these systems for collecting data and looking at it," the source said, "but they haven't taken it to the next step: using the data to make the mines safer."

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