Published November 17, 2014
The nation's largest mine workers union accused Massey Energy Co. and its managers 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 now owned by Virginia-based Alpha Natural Resources "a rogue corporation" that put profits first and safety last, and labeled the Montcoal mine "a bomb waiting to go off."
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 — 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, did not immediately comment. Nor did the state mine safety office or Alpha, which now owns Upper Big Branch and other former Massey operations.
But 55-year-old Stanley Stewart of Orgas, an Upper Big Branch miner who worked the day of the blast, said he agrees wholeheartedly with the union's conclusion that Massey managers should be held accountable.
"Those guys were responsible," said Stewart, who attended a briefing for the victims' families in Charleston. "... I worked there. Their investigation is right on, every part of it."
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."
"The conditions that existed in the mine on April 5, 2010, did not occur overnight," it adds. "Instead, they were the result of weeks, month and years of neglect."
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.
However, it complains that MSHA has "thrown a needless cloak of secrecy" over its probe by excluding the UMW from private witness interviews, withholding documents and failing to hold public hearings where Massey managers could be questioned.
The union, a longtime enemy of Massey and Blankenship, said the company and the CEO must be held accountable for the 29 deaths.
"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 from the mine.
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, rejecting Massey's claim that the mine experienced a sudden inundation of gas that overwhelmed all safety systems.
Had the mine been sufficiently dusted with pulverized limestone to render the coal dust inert, the spark wouldn't have had the fuel needed to propagate, the report says. 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.
The union recommends similar violations and fines when an operator fails to keep complete books of its safety inspections and urged both the state and MSHA to work harder to address discrepancies between what an inspection book shows and what conditions underground reveal.
In June, MSHA informed the victims' families that Massey maintained two sets of books on safety conditions, an accurate one focused on production for itself and a sanitized version for the government.
Workers told investigators the company wanted to avoid scrutiny from inspectors and keep production running.
Associated Press writer John Raby contributed from Charleston.