April 05, 2012

Two Years After Upper Big Branch Disaster, Where Are the Reforms?

Congress usually enacts new public protections following a major crisis or series of crises that focus attention on the failure of existing laws to protect the public or the environment from abuses by companies pursuing economic gain. 

Most of the protective regulatory programs of the Progressive Era, the New Deal, and the Public Interest Era (the period of active government extending roughly from the mid-1960s through the mid-1970s) were established after widely publicized tragedies or abuses stirred public opinion to levels sufficient to overcome the inertial forces that otherwise overwhelm Congress and the regulatory agencies.

Federal regulation of mine safety and health is an excellent example of this phenomenon.

The Federal Coal Mine Health and Safety Act of 1969 was enacted in direct response to the November 20, 1968 explosion at the Consolidation Coal Company’s Console Number 9 mine in Farmington, West Virginia that killed 75 miners and 3 federal inspectors.  That disaster also inspired Congress to enact the Occupational Safety and Health Act of 1970. 

Congress enacted the Federal Mine Safety and Health Act of 1977 in response to explosions on March 11 and 13, 1976 at the Scotia Coal Company’s Scotia mine in Ovenfork, Kentucky.  The initial explosion killed 15 miners, and a second explosion two days later took the lives of three federal inspectors and eight members of two rescue teams.

An explosion at International Coal Company’s Sago mine in Buckhannon, West Virginia on the morning of January 2, 2006 killed 13 miners and motivated Congress to enact the Mine Improvement and New Emergency Response (MINER) Act of 2006.

Two years ago today, an entirely preventable explosion at Massey Energy Company’s Upper Big Branch mine in Beckley, West Virginia killed 29 miners.  It was the worst mining disaster since the Farmington explosion.  In sharp contrast to previous mine disasters, however, the Upper Big Branch tragedy yielded no new legislation and elicited only an anemic administrative response by the Obama Administration.

This dramatic departure from past experience naturally raises the question of why the government – the Executive and Legislative branches, here – has done so little this time to address serious safety problems in an exceedingly dangerous industry.

Both MSHA and an independent team appointed by the Governor of West Virginia attributed the blast to the company’s failure to suppress coal dust as required by MSHA regulations, but the company blamed a crack in the floor of the mine that, in its version of the facts, unforeseeably leaked methane into the chamber.  

Later, the company blamed MSHA inspectors for forcing the company to adopt a ventilation system that effectively reduced airflow to the mine.  That charge was later rejected by independent investigators, who placed much of the blame for the accident on Massey Energy.

For example, the United Mine Workers called it a case of “industrial homicide.”

The independent reports had some harsh things to say about MSHA’s performance as well.

For example, a recent report by an independent panel assembled by the National Institute for Occupational Safety and Health excoriated MSHA for failing to do more to protect miners before the catastrophe.  The report concluded that “if MSHA had engaged in timely enforcement of the Mine Act, it would have lessened the chances of — and possibly could have prevented — the Upper Big Branch explosion."

Massey Energy was a notorious violator of the federal mine safety laws, and the non-union Upper Big Branch mine was an especially egregious violator.  In the 16 months prior to the explosion, MSHA inspectors had ordered the closure of parts of the mine on 64 separate occasions, but the agency had declined to find that the company had engaged in a “pattern of violations.”  The agency was reluctant to make that finding, which could lead to much more dramatic consequences for the mine, because it knew that the company would formally contest more of the citations, rather than entering into settlement agreements, and that in turn could chew up scarce agency enforcement resources as it fought with the company’s lawyers. 

It later turned out that Massey was keeping two separate sets of safety records for the Upper Big Branch mine, one for MSHA inspectors that left out critical information about safety hazards and one for its executives that showed how the company was cutting costs by cutting corners on safety programs.

MSHA has historically been hamstrung by a lack of authority and resources.  Although the MINER Act quite appropriately focused on emergency response, safety advocates argued the statute needed to focus MSHA’s attention more narrowly on accident prevention.  Among other things, critics argued that the Upper Big Branch mine disaster could have been prevented had MSHA promulgated regulations requiring mines to install real-time coal-dust monitors. 

MSHA’s enforcement efforts are hampered by a lack of subpoena power to demand company records as it investigated the causes of accidents and by the fact that criminal violations of safety standards that caused miner deaths are mere misdemeanors. 

President Obama responded to the tragedy by ordering a fresh round of mine safety inspections and a review of MSHA’s inspection program. 

MSHA promulgated an emergency temporary standard requiring mine operators to take additional steps to prevent coal dust accumulations. 

A just-finalized regulation requiring mining operators to conduct routine examinations for conditions that violate MSHA standards, for example, should bring about some modest improvements, if it is adequately enforced.

A dedicated local United States Attorney, Booth Goodwin, made considerable progress in holding scofflaws accountable by securing a conviction against the security chief of the Upper Big Branch mine for obstructing the investigation by lying to FBI agents and attempting to destroy incriminating documents.  Just last week, a former superintendent of the mine plead guilty to one count of conspiracy to defraud MSHA by tipping off employees as inspectors made their way into the mine, falsifying records, and other fraudulent activities.

The same U.S. Attorney reached a $209 million settlement with Massey’s successor corporation to resolve civil and criminal charges against the company.  The action was based on 369 citations that MSHA issued against Massey for violations at the Upper Big Branch mine, nine of which were for “flagrant” violations.  Each of the victims’ families received $1.5 million in restitution.

Following the familiar pattern of disaster and response, supporters of federal mine safety protections revived legislation that they had been pushing in Congress prior to the 2008 elections but had held in abeyance to give the incoming Obama Administration an opportunity to work with the existing law.  The modest bill would have provided for independent investigations of mining accidents, given MSHA subpoena power, enhanced the rights of miners during inspections and investigations, authorized MSHA to issue withdrawal and remediation orders to mines engaged in a pattern of violations, and required the agency to double the number of annual inspections during the time that a mining operation remained in “pattern” status, and increased civil and criminal penalties.

The House Education and Labor Committee held the obligatory hearings featuring Massey workers and the families of the victims.

The mining industry, of course, vigorously opposed any changes to the law.

The Obama Administration spent little political capital in support of congressional efforts to enact the reform legislation.  The president was preoccupied with health care reform, and the White House was apparently incapable of multi-tasking.

The Republican leadership, by contrast, was all over the bill.  It announced that Senate Republicans would filibuster the bill if it got to the floor.  Since Senate Republicans these days march in lock-step behind the leadership in support of business interests, no matter how grave the need for protective legislation, the threat could not be ignored.

This petulant stance presented a golden opportunity to the Senate Democratic leadership to force Republican senators to come to the defense of a scofflaw corporation on the floor of the Senate while preventing that institution from conducting the government’s business.  As it has every other time that the Republicans have threaten to filibuster, however, the Democratic leadership threw in the towel. 

A last-minute effort in the House to pass a scaled-down version of the bill during the lame-duck session of December 2010 failed when Republicans voted in lock-step and were joined by 29 Democrats to prevent the bill from obtaining the two-thirds vote necessary to suspend the rules at that late date.

The underlying problem is the fact that mining interests spend enormous sums on lobbying and are large contributors to congressional election campaigns.  Between 2004 and 2008, campaign contributions by mining and related interests shot up from just over $10 million per year to $31 million.  Massey Energy’s outspoken CEO Don Blankenship was a prominent GOP fundraiser, contributing more than $300,000 to federal candidates, 90 percent of whom were Republicans, during the decade prior to the explosion.

In 2004, Blankenship spent $3.5 million to finance vicious attack ads in a campaign to replace a long-time West Virginia Supreme Court justice while a case of great financial significance to Massey Energy was pending before the court.  At the same time, Blankenship and another Supreme Court justice dined together several times as they vacationed in Monte Carlo.  After the court ruled in Massey Energy’s favor by a 3-2 majority, the Supreme Court of the United States held one of the state justices should have recused himself because of the serious risk of bias that Blankenship’s large contributions had created.

One positive outcome of the Upper Big Branch explosion was the decision of Massey’s Board of Directors, under pressure from institutional shareholders, to force Blankenship’s resignation.  The company was later purchased by Alpha Natural Resources, which promised to clean up its image.  Whether it will also clean up its act remains to be seen.

In the meantime, Don Blankenship remains a free man, despite strong legal arguments that he should face prosecution.  To the contrary, he filed paperwork last year creating a new mining company, McCoy Coal Group of Belfry, Kentucky.

Upon announcement of the major U.S. settlement with Massey in December, top officials left the door open to further prosecutions.  Attorney General Holder pledged  that “we continue to investigate individuals associated with this tragedy.” DOL Secretary Hilda Solis said “Anyone determined to have violated a criminal statute in connection with Upper Big Branch should be brought to justice."  The proof, of course, is in the pudding.  So far no upper level Massey executives have been indicted.

The Obama Administration’s tepid response to the Upper Big Branch tragedy and the failure of Congress to enact even modest reforms are part of a larger pattern  of government failure during the past three years to react to disasters with programs designed to protect future victims. 

The Deepwater Horizon disaster resulted in several bills aimed at addressing the sad state of federal regulation of deepwater drilling.  Fierce opposition by the oil and gas industry and its Republican allies, however, prevented Congress from passing the much needed legislation.

A renamed agency in the Department of Interior promulgated an emergency drilling rule tightening standards for well design, casing and cementing, pressure testing and blowout prevention.  But the agency acknowledges that the quickly-promulgated rule was not the last word in deepwater drilling safety, and a National Academy of Engineering panel has recommended many changes that have not been implemented. 

In the meantime, the government has resumed issuing drilling permits in the Gulf of Mexico before the Department of Interior has finished writing the rules necessary to prevent future blowouts. 

One more example: A disastrous breach of a retention wall on a surface impoundment containing more than 5 million cubic yards (1.1 billion gallons) of coal-ash slurry in Kingston, Tennessee damaged homes and caused millions of dollars in property loss and damage to fish, wildlife and the aquatic ecosystem. 

A bill was introduced in Congress soon thereafter to force EPA to regulate coal ash sites throughout the country, but the bill went nowhere in Congress.  Once again, it failed because of intense opposition of the affected industry and its Republican allies.

When EPA sent a proposal to regulate coal ash as a hazardous waste to the Office of Information and Regulatory Affairs in the Office of Management and Budget, OIRA forced it to include an industry-preferred alternative as an equal option in the notice of proposed rulemaking.  The agency has still not promulgated a final rule more than three years after the disaster.

This pattern of disaster and half-hearted response raises several rather depressing questions that should give us pause. 

Are we Americans simply incapable of the kind of outrage that generated pressure on Congress to pass the grand safety and environmental statutes of the 1970s and 1980s over the strong opposition of the polluters and their political allies? 

Perhaps in this age of information overload and 140-character interpersonal communication, we have developed a collective case of attention deficit disorder.  When what happened two hours ago is old news and what happened two weeks ago is ancient history, a disaster that took place two years ago in a remote Appalachian mine is about as relevant to the collective consciousness as the Peloponnesian wars.

Or has Congress simply become so dysfunctional that no amount of public outrage can overcome a threat by the Republican leadership to filibuster protective legislation? 

And now for the most depressing question of all: Has the Obama Administration, in a failed attempt to win business community support, so lost its moral compass that the White House is mimicking the Republican leadership in Congress?

Thomas McGarity, CPR Member Scholar; Endowed Chair in Admin. Law, University of Texas School of Law. Bio.

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