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Wrongful Fatalities, Failed Worker Protections

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In both cases -- the five fatalities in a Washington oil refinery on April 2 and the 29 deaths in a West Virginia coal mine the following Monday -- news reports described the explosions that killed workers as industrial "accidents."

When an explosion occurs at a refinery or mine that has been repeatedly fined for heath and safety violations, one question that ought to be asked is just how unexpected was the event.

Answering this question is essential because: less time plus less money spent on safety measures equals more profit for owners. America must introduce new factors into that computation to protect the lives and limbs of workers who produce the energy on which this country depends. One factor is larger safety violation penalties -- fines and shutdowns costly enough to outstrip profitability. And when corporations consider fines just another cost of doing business, another crucial factor is the ability to charge CEOs with criminal negligence when their corporations flagrantly violate safety regulations -- an ability that other countries have written into law.

As it stands now, corporations have discovered that they can continue profiting even after unconscionable disasters. Take BP for example. In 2005, a massive blast at the BP Texas City refinery killed 15 and injured 180. Business Week noted that BP continued to turn a profit every year after the Texas catastrophe, even though it paid more than $2 billion for legal costs and fines and for remediation programs at its U.S. refineries.

Regulatory agencies have repeatedly cited and fined both Tesoro, which operates the Anacortes, Wash. refinery where an explosion killed five workers and severely burned two last week, and Massey Energy Co., which owns the Upper Big Branch mine in Montcoal, W.Va., where 29 miners are dead.

Since 2005, regulators cited Massey's Upper Big Branch Mine 1,342 times for safety infractions and charged Massey $1.89 million in fines, $1.3 million of which Massey is contesting. Of the violations, 86 were for failing to obey a ventilation plan to control explosive methane gas and coal dust. These are the very factors suspected in Monday's deadly blast. Regulators issued 12 of those citations in the past month, and miners told the New York Times that dangerous gas accumulation forced evacuations of the mine several times in recent weeks. Regulators found two violations on Monday, before the explosion.

In January, agencies imposed the largest fines in the mine's history for two violations, including one case in which a mine foreman admitted he'd known of a ventilation problem for three weeks. In 2008, Massey paid what federal prosecutors said was the largest settlement in the history of the coal industry -- $4.2 million in criminal fines and civil penalties -- after a subsidiary pleaded guilty to criminal mine safety violations for a January, 2006 fire that killed two workers in Massey's Aracoma Alma No. 1 Mine. In addition those deaths at a Massey mine and the 29 killed Monday at Upper Big Branch, three other miners died at the Upper Big Branch mine since 1998.

The Charleston Gazette reported:

"In seven of the last 10 years, the mine has recorded a non-fatal injury rate worse than the national average for similar operations, according to MSHA statistics."

Serious safety concerns prompted federal investigators to temporarily halt work in portions of the Upper Big Branch mine more than 60 times since the start of 2009, the Pittsburgh Post-Gazette reported after reviewing U.S. Mine Safety and Health Administration records.

Safety was such a crisis at the Upper Big Branch mine that MSHA sent Massey a letter on Dec. 6, 2007 warning that its serious violations over the previous two years were so far above average that the mine could be designated as a pattern violator and subjected to stricter federal oversight, the New York Times reported. The letter noted that in 2006 and 2007 MSHA had found nearly twice the national average of serious violations at the mine. Within three months, the mine reduced the number by a third, escaping the extra scrutiny. Still, the total remained above the national average.

The citations and fines do not seem to faze Massey CEO Don Blankenship. He told a radio station:

"Violations are unfortunately a normal part of the mining process."

He also previously told Forbes:

"We don't pay much attention to the violation count."

Despite the deaths, all of the violations and the fines, the Massey Energy web site defends the company safety record, contending that 2009 was the 17th year out of 20 that the company scored above the industry average for safety -- this assertion although the number of safety violations in 2009 doubled from the previous year, totaled 458 and included 50 citations for breaches Massey, the nation's fourth largest coal company, knew existed but failed to correct.

Just like Massey, Tesoro claims that its safety record has improved -- despite citations and fines and five deaths. In the company fact sheet, Tesoro said its recordable injury rates have declined by 30 percent over three years.

The Washington state Department of Labor and Industry fined Tesoro $85,700 a year ago for 17 serious health and safety violations. These are violations with the potential to cause serious injury or death. In addition, the department found 150 safety deficiencies at the Anacortes, Wash., refinery. Tesoro appealed and got all but three of the most serious violations thrown out and the fine reduced to $12,500. The settlement required Tesoro to hire a safety consultant to examine the refinery. That consultant began work at the plant last month.

Immediately after the five refinery workers died, the American Petroleum Institute and the National Petrochemical and Refiners Association jumped to defend refining safety. Before funerals were held and with two workers still hospitalized with life-threatening burns, the Petroleum Institute complained that the industry wasn't getting credit for health and safety improvements. And the National Petrochemical and Refiners Association contended that the industry has lower injury rates than manufacturing generally.

The problem with their numbers is that they mingle deaths with OSHA counts of slips and falls -- taking the focus off incidents like the fire ball that killed the five Tesoro workers, or the blast that killed 15 at Texas City, or the explosion at another refinery in Anacortes in 1998 that killed six workers.

Also, they don't want to count injuries to or deaths of subcontractors who refineries often hire to perform dangerous maintenance work. At Tesoro, a contractor was crushed to death in 2002 and three contract workers were hospitalized in 2006 for exposure to naphtha.

In addition, the OSHA numbers used by the refining industry associations exclude explosions and fires at refineries that had the potential to maim and kill both workers and community members but, instead, miraculously resulted only in "close calls."

OSHA Assistant Secretary David Michaels contradicted the refining industry association safety assertions, saying: "The petroleum industry has a long way to go before we can feel comfortable that workers there are adequately protected."

Similarly, Daniel Horowitz, a Chemical Safety Board spokesman, told the Seattle Times, a disproportionate number of incidents occurred at the 150 refineries in the U.S., compared with infractions at tens of thousands of chemical plants handling other hazardous materials. Of the 18 cases the Chemical Safety Board is investigating, seven involve oil refineries.

Republicans and Tea Partiers are running around like Chicken Little screaming that government is too big. Thirty workers killed in explosions in four days is what happens when government is too small, when right-wing strategists like Grover Norquist have gotten their way and shrunk regulatory agencies to a size where they can be drowned in a bathtub.

Like the Wall Street CEOs who recklessly speculated with America's economy for their personal profit, industrial CEOs have carelessly gambled with worker's lives for personal gain. The "free market" doesn't control that immoral behavior. Government must do it. And when it does, it must have the power to impose fines or workplace shut downs that will damage the bottom lines of CEOs who care about nothing else. And it must have the power to criminally charge and potentially imprison CEOs, treating them the same as drunk drivers who risk other peoples' lives.

In 1946, a group of miners from Illinois wrote their governor seeking his help in enforcing regulations against dangerous coal dust accumulation in a Centralia Coal Co. mine. They wrote:

"In fact, Governor Green, this is a plea to you, to please save our lives."

The Centralia Coal Co., despite being cited for violations, didn't acknowledge a problem. On March 25, 1947, a coal dust explosion killed 111 Centralia miners, including three of the four who sent the letter.

Woody Guthrie wrote the song, "The Dying Miner" after the Centralia explosion, including these lyrics:

"I can hear the moans and groans,
More than a hundred good men.
Just work and fight and try to see,
That this never happens again."

More than a half century later, the protections and enforcement for miners, steelworkers, refinery workers, paper workers and others remain inadequate. The proof is that the explosions and deaths continue to occur over and over again.

The slaughter must stop now. Workers go to jobs to earn their daily bread. They don't go to die.