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Upper Big Branch Mine Conditions Were 'Industrial Homicide,' Union Alleges

VICKI SMITH   10/25/11 07:11 PM ET   AP

MORGANTOWN, W.Va. — The nation's largest mine workers union accused Massey Energy Co. and its managers on Tuesday of "industrial homicide" for creating the conditions behind the April 2010 explosion that killed 29 men at a southern West Virginia coal mine.

In a scathing 90-page report on its own investigation into the Upper Big Branch disaster, the United Mine Workers of America called the company "a rogue corporation" that put profits first and safety last, and labeled the Montcoal mine "a bomb waiting to go off." Massey is now owned by Virginia-based Alpha Natural Resources.

The union demanded criminal prosecution of at least 18 Massey managers, including former Chief Executive Don Blankenship, who retired last December and has since vanished from public view.

It also recommends more than a dozen changes in state and federal laws and regulations to crack down on bad operators, from tougher penalties for illegal ventilation plan changes to stronger protections for whistleblowers reporting safety problems.

The UMW also rebuked federal regulators with the Mine Safety and Health Administration – and, to a lesser extent, their state counterparts – for what it called an "unconscionable" failure to use all the tools they had to shut down the long-troubled mine and prevent the nation's deadliest coal mine explosion in four decades.

Rather, the union charges, MSHA District 4 managers discouraged field inspectors who tried to strenuously enforce the law – one reason it also recommends Congress mandate independent investigations when mining accidents cause multiple deaths.

MSHA, which has yet to publish its final report, said it's reviewing the union report and will consider its recommendations. Director Joe Main said MSHA agrees that Massey maintained a culture that valued profits over lives.

"These findings underline the fact that MSHA can't be in every mine every shift, and that some mine operators take advantage of that," he said, adding that he has asked Congress for more tools to protect miners.

"MSHA has already begun to make a number of administrative, regulatory, and policy changes as a result of the lessons learned from UBB," he said, "and we are aggressively moving forward with those changes to improve the safety and health of our nation's miners."

Alpha said it has yet to reach its own conclusions about what happened at Upper Big Branch but noted that since it took over Massey operations in June, it has launched a "Running Right" safety program and trained more than 7,500 people.

"I think the goal everyone shares is to ensure that an accident like this never occurs again," said spokesman Ted Pile.

Miner Stanley Stewart, who worked at Upper Big Branch the day of the blast, and Patty Quarles, whose son Gary died there, agree with the UMW that Massey managers must be prosecuted.

"Somebody called the shots, and I don't think these sections bosses and mine foremen can be held accountable alone," Quarles said. "It goes higher than that. It goes all the way up the ladder to Blankenship. ... He needs to pay for what he's done."

Stewart said even though MSHA inspectors could have done more, he believes they were under a lot of pressure.

"Massey manipulated them and manipulated the system to fool them a lot of times," he said.

The union contends MSHA had plenty of opportunity to intervene: From Jan. 1, 2009, until the explosion on April 5, 2010, it cited Upper Big Branch for 645 violations and imposed penalties of more than $1.2 million.

But those citations "were having no tangible impact," it says. Violations that are contested can't be used to increase enforcement efforts, and Massey contested 229 of its citations. At the same time, the union says, MSHA attorneys were routinely settling cases with lower fines.

The UMW suggests operators be required to put proposed fines into escrow while violations are being disputed, and that additional fines be levied if the dispute is eventually deemed frivolous.

MSHA could have conducted inspection blitzes, cited the company for flagrant violations and closed the mine, the union said. "Yet our investigation did not reveal a plan on the part of District 4 to address the problems at UBB."

Massey regularly treated MSHA's rules and inspectors with disdain, the union said, so the agency "should have realized it had to be even more protective of the miners."

Although Upper Big Branch was a nonunion mine, the UMW was designated a legal miners' representative after the blast and participated in much of the investigation.

"The union believes that Massey Energy and its management were on notice of and recklessly tolerated mining conditions that were so egregious that the resulting disaster constituted a massive slaughter in the nature of an industrial homicide," it says.

An industrial homicide charge doesn't exist in either West Virginia, where the mine was located, or Virginia, where its owners are headquartered. Still, the UMW believes the government could prosecute Massey under other laws.

The accident is the target of continuing criminal investigations, but so far, only one Massey official has been indicted. Former security chief Hughie Elbert Stover went on trial in U.S. District Court in Beckley this week, charged with ordering a subordinate to destroy thousands of documents.

The union's theory of what caused the blast mirrors the conclusions of both an independent panel appointed by former Gov. Joe Manchin and MSHA, which has given several public briefings on its work.

All three investigations concluded that poorly maintained machines cutting into sandstone created a spark that ignited both a small amount of naturally occurring methane gas and a massive accumulation of explosive coal dust. Malfunctioning water sprayers allowed what could have been a small flare-up to become an epic blast that traveled seven miles of underground corridors, doubling back on itself and killing men instantly.

The union also reiterated MSHA's position that the explosion could have been prevented or contained. Had the mine been sufficiently dusted with pulverized limestone to render the coal dust inert, the report says, the spark wouldn't have had the fuel needed to propagate.

In the year before the Upper Big Branch blast, the union noted, 70 ignitions occurred at U.S. coal mines, and none resulted in fatalities.

Like the independent report, the union also faults MSHA for failing to take charge of the search and rescue operations.

Witness interviews revealed that Massey executives Chris Blanchard and Jason Whitehead charged deep into the mine after the blast and stayed inside for hours, despite the concerns of MSHA officials who believed they were ignoring established mine-rescue protocols and leaving footprints that could throw off the searchers.

The union called the level of confusion "unacceptable" and said it's impossible to complete a thorough investigation until Blanchard and Whitehead's actions in those hours are revealed. The two are among 18 Massey officials who have invoked their Fifth Amendment rights and refused to testify in the investigation.

The UMW also criticizes MSHA for allowing Massey to use 33 sets of airlock doors to control air flow, rather than traditional ventilation systems. It calls for that practice to be banned.

Citing witness interviews, the union said it appears that Upper Big Branch crews deviated from the MSHA-approved ventilation plans illegally, intentionally and almost daily – so frequently that the company could not produce the maps it's required to submit.

MSHA cited the mine for ventilation-related violations more than 100 times in the 18 months before the blast, the union said, yet the agency did not take stronger action. It recommends that illegal changes to ventilation plans be cited as "flagrant" violations, resulting in automatic $200,000 fines and the immediate evacuation of underground personnel.

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Associated Press writer John Raby contributed from Charleston.

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Online:

UMWA: http://www.umwa.org

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