The Coal Watchdog That Grew Teeth After Upper Big Branch Blew Up

  • MSHA started inspection blitz and blacklist after mine blast
  • Safety advocates say more needs to be done to protect workers

A deadly explosion in 2010 at the Upper Big Branch mine in West Virginia spurred an enforcement blitz by federal regulators charged with policing the coal industry and culminated Thursday in a guilty verdict against former Massey Energy Chief Executive Officer Don Blankenship.

Five years after the blast that killed 29 people, safety advocates worry the government’s rigorous approach won’t last. Mine fatalities have fallen, but exactly what’s to credit -- stepped-up enforcement or an industry downturn -- remains up for debate.

After the accident, the U.S. Mine Safety and Health Administration began a campaign of inspections in a bid to keep violations from being covered up. It came amid an industry depression that has left fewer miners and even fewer mines to inspect. A push to bolster the Federal Mine Safety and Health Act -- a potentially powerful step toward improving safety -– has failed to gain traction in a gridlocked Congress, and that has left MSHA’s new approach reliant on a supportive White House, which concerns safety advocates heading into an election year.

If MSHA maintains its rigor, “there would be less risk to miners, fewer fatalities, fewer injuries and fewer families that are impacted by mine accidents and disasters,’’ said Patrick McGinley, a law professor at West Virginia University who served on an independent investigation of the disaster for the state’s governor. “But the jury’s still out on what ultimately will be the result moving forward from Upper Big Branch.”

Upper Big Branch led MSHA to step up so-called "impact inspections," which seek to weed out the country’s most dangerous mines. During these blitzes, teams of inspectors arrive at the mine’s guard shack unannounced, seize internal phone lines and head into the pits without the miners knowing they’re coming.

Coded Calls

The point is to stop operators from using coded calls to warn miners -- which happened regularly at Upper Big Branch -- to clean up infractions before getting caught.

“That gives them a pretty good idea of whether you’re doing things right or not,” said Randy Smith, a 37-year veteran coal miner who works for Alliance Resource Partners LP and is a Republican in the West Virginia House of Delegates.

MSHA head Joseph Main credits the inspections and a related “Pattern of Violations” list with being a “real game changer” in mine safety and health culture. According to Main, almost all of the mines that were at risk of ending up on the violations list have cleaned up their acts. As a result, the number of sites deserving special scrutiny, once 51 strong, has shrunk to one.

Of course, MSHA can’t take all the credit. It’s flexing its muscle as the coal industry’s suffering from the worst market downturn in decades. More than a quarter of America’s coal mines have shut in the last six years amid low prices, according to the Energy Information Administration. The majority of the closures have been in Appalachia, notorious for being home to the most dangerous sites.

Miners want MSHA to ease up. There are too many inspectors and they’ve become too confrontational, they say. The coal sector’s shrinking, and MSHA hasn’t appeared to follow suit.

“We don’t see a concurrent realignment,’’ said Bruce Watzman, the National Mining Association’s senior vice president for regulatory affairs.

Safety advocates are wary of that. There are still plenty of bad operators more than willing to cut safety corners to reduce costs if they can get away with it, said Tony Oppegard, a Lexington, Kentucky-based attorney who represents miners and their families in safety-related cases.

“To say we’ve changed the culture of coal mining is a bunch of hogwash,’’ Oppegard said. “Coal operators are no different today than they were on the day of Upper Big Branch.’’

It’s this tension that makes it hard to say whether the legacy left by the Upper Big Branch explosion will lead to lasting change in mine safety, said McGinley, the West Virginia law professor.

Certainly, legislation to strengthen the Mine Safety and Health Act would help, he said. Short of that, a lot could hinge on who’s voted in as the country’s next president.

“Democrats generally support more vigorous regulation,” he said, “while Republicans seek to shield industries from government bureaucracy.”

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