How could this happen in West Virginia?
Inspectors with the West Virginia Office of Miners’ Health Safety and Training (WVMHST) face many layers of challenges as they attempt to regulate a vast and powerful industry with limited resources and personnel.
State inspectors usually travel alone and are typically assigned to several mines for a year, during which time they are expected to complete four inspections. Like their federal counterparts, the inspectors sometimes find themselves trying to do their jobs in hostile work environments. They must maintain an ongoing relationship with company officials, who, as described in the previous chapter, may not be at all hesitant to challenge the findings or even the authority of the inspector.
State mine inspectors face an additional obstacle, which can be described simply as the politics of the state of West Virginia. While the chain of command for the federal Mine Safety and Health Administration extends away from West Virginia toward the nation’s capital, the chain of command for West Virginia state inspectors leads directly into the governor’s office. A mine operator who is unhappy with an inspector’s actions has only to pick up the phone and call any one of a number of state officials or the governor’s office to issue his complaint.
This is not to suggest that any state official or governor intervened in a mine safety issue, but the perception that such an intervention is possible can create a chilling effect for inspectors trying to do their jobs. What is factual and well documented is that Massey Energy Chairman and CEO Don Blankenship had a long history of wielding or attempting to wield influence in the state’s seats of government.
An example is a case involving Hugh Caperton and his company, Harman Coal. In August 2002, a West Virginia jury verdict awarded Caperton and Harman $50 million in compensatory and punitive damages. Caperton had alleged that Harman was forced into bankruptcy because of Massey’s fraudulent business practices with regard to a coal contract.1 In a June 2004 opinion, a state trial court found that Massey “intentionally acted in utter disregard of [Caperton’s] rights and ultimately destroyed [Caperton’s] businesses because, after conducting cost-benefit analyses, [Massey] concluded it was in its financial interest to do so.2
In that year’s general election, Blankenship spent more than $3 million of his own money to unseat State Supreme Court Justice Warren McGraw and replace him with a judge more sympathetic to Massey’s interests. Through the political action group, “And for the Sake of the Kids,” Blankenship financed a media campaign that portrayed the progressive McGraw as a dangerous radical who was soft on sex offenders. The beneficiary of Blankenship’s largesse was Brent Benjamin, a virtually unknown lawyer who had barely won the Republican primary.3
At the time a close personal friend of Blankenship already was sitting on the state’s highest court -– Judge Elliott “Spike” Maynard, who, like Blankenship, was a native of Mingo County. In 2008 Benjamin and Maynard provided two votes in a slender 3-2 majority for a decision that overturned the $50 million jury award.4 Caperton sought a re-hearing and moved for the disqualification of Maynard and Benjamin.5
“Having two of the votes that go against you come from, one, a close personal friend of Don Blankenship’s, and, two, a justice who received the benefit of Don Blankenship’s $3 million spending spree on the Supreme Court race certainly gives me pause, and it should give every citizen pause as to whether really justice was done here,” Caperton told West Virginia Public Broadcasting.6
In the meantime, photographs had surfaced of Blankenship and Maynard vacationing on the French Riviera in the summer of 2006. As a result, Maynard recused himself from the case.7 Benjamin refused to do so, casting the deciding vote for reversal of the $50 million verdict.8
Caperton appealed to the United States Supreme Court, which in June 2009 issued a 5-4 ruling ordering the West Virginia court to rehear the case and for Benjamin to recuse himself.9 Writing for the majority, Justice Anthony Kennedy wrote that Blankenship’s money made it appear as if he were choosing his own judge. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when – without the other parties’ consent – a man chooses the judge in his own cause,” Kennedy wrote.10
The Court concluded “that Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case” and that “…the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it must be forbidden…”11
The reality that powerful industries and their leaders cast long shadows over the state’s government is not unique to West Virginia, nor is it unique to the coal industry. It is a problem facing regulators of any large industry. But, with a powerful national lobby, the coal industry poses unique challenges for small state agencies that try to regulate it with inadequate resources. Although West Virginia has provided more support for mine safety than some other mining states, the state’s budget for mine safety enforcement simply is not enough.
The state’s regulatory efforts date back to February 22, 1883, when the West Virginia Legislature passed the state’s first mine safety act. Ironically, given events that occurred at UBB, the law called for the appointment of a mine inspector to make certain the state’s mines “were properly drained and ventilated.” The first mining inspector, Oscar A. Veazey, was hired in 1883, and the following year the first comprehensive mine safety laws were proposed.
In 1887, the Legislature passed an act expanding the number of inspection districts to four and creating the position of chief mine inspector. In July 1905, the West Virginia Department of Mines was formed, and the inspection force was increased to seven. The Department of Mines served as the state’s regulatory agency until 1985, when it was merged with several other agencies to form the West Virginia Department (later Division) of Energy. In 1991, the agency was reorganized, and the West Virginia Office of Miners’ Health Safety and Training was created.12
While the West Virginia Mine Act gives the WVMHST director and inspectors broad authority to administer and enforce state mining regulations,13 the agency has only 126 employees, including administrative and support staff. This work force is charged with ensuring that health and safety regulations are followed in some 705 underground and surface mines, quarries and coal handling facilities spread across the back roads of the state. In 2010, there were on any given day a total of 78 inspectors whose job it was to carry out the four mandated complete inspections of underground mines and two complete inspections of surface mines, along with their other duties. Of those 78 inspectors, 13 are electrical inspectors, who only address electrical issues, and 13 are surface mine inspectors, who cover both surface coal mines and quarries.
The result is that, on a given day, the state has only 52 inspectors assigned to inspect 261 underground mines with 405 working sections.14 State inspectors also are charged with regulating approximately 2,300 independent contracting companies. They also are responsible for investigating all serious mining accidents, providing industry training, reviewing safety programs for all facilities and conducting miner and foreman certificate examinations. To illustrate the scope of the challenge for the 78 inspectors, there are 27,892 men and women employed in West Virginia’s coal mines and facilities, and the state’s mines produced 144 million tons of coal in 2009.
WVMHST records indicate that, even with the limited staffing and resources, state mine inspectors spent a considerable amount of time at the Upper Big Branch mine. Inspectors were on site for at least 70 days in 2009 and for another 15 days in the three months preceding the April 5, 2010, explosion. They wrote more than 330 violations and assessed $154,600 in penalties.
Given this presence, why, then, did inspectors for the WVMHST, like MSHA, fail to recognize the serious safety lapses that led to the disaster? Further, since 19th century regulators in West Virginia were charged first and foremost with seeing that mines were properly “drained and ventilated,” how did they miss the fact that the Upper Big Branch mine had a seriously compromised ventilation system and that one of the major contributing factors was inadequate drainage? And, how did they miss the build-up of dust that was so evident to inspectors after the mine blew up?
Gerald Pauley, an inspector working out of the WVMHST’s Oak Hill office, was assigned to the Upper Big Branch mine in April 2009 and had completed his assignment there at the end of March 2010. Pauley, with more than sixteen years of experience with the agency opinions as to how the state might have been able to do a better job at UBB.
“A couple of guys should be assigned to that mine,” he said. “It’s a very expansive mine, very large mine. Just to be able to go in all directions at one time, every couple or three weeks or something. That’s my opinion.”15 According to WVMHST acting director C. A. Phillips, Pauley had requested additional inspection help from his supervisor, Steve Snyder. An electrical inspector was assigned responsibility at UBB, but the complete mandatory inspections were not completed.16
Some mining experts question whether Upper Big Branch, was, in fact, a very large mine. Within the mining industry, mines generally are referred to as big, mid-sized or small based on annual production. By that standard, Upper Big Branch could not be described as a big mine. The longwall operation that was begun at UBB in September 2009 produced 1.2 million tons of coal in that year. If it had been in production the entire 2009 year, the longwall could have been expected to produce 3.7 million tons. By comparison, the average production for longwall mines in the country in 2009 was more than 4 million tons.17
Because it takes a considerable coal reserve to justify the capital spent on longwall equipment, Upper Big Branch, like most longwall mines, was large in geographic area, both inside and outside the mine. As a rule, longwall mines have at least two or three continuous miner sections contemporaneously developing panels for future longwall mining. The longwall panels themselves are up to 1,000 feet wide and several thousand feet long. When the mining is complete, the mined-out longwall panels are converted into large areas of gob. Since longwall mining had been taking place at UBB since 1996, the mine had immense gob areas. These gob areas must be addressed through bleeder systems and seals. In other words, they require attention until the day the entire mine is sealed.
Longwall mines also require a large amount of surface area to house facilities and infrastructure. UBB was no exception. The mine occupied surface land stretching across parts of Raleigh and Boone counties that housed outside facilities and infrastructure both at Montcoal and some two miles away at the Ellis Portal.
Inside the mine, investigators placed the distance from the Ellis Portal to the longwall at approximately 3.36 miles and the distance from the North Portal to the longwall at about 4.40 miles. It was another 2.3 miles from the entrance to the longwall panel on out to the Bandytown fan. These miles of entries and crosscuts required ventilation and maintenance and had to be examined on a regular basis. In addition, UBB had a massive belt system that conveyed coal from the underground to the surface, crossed West Virginia Route 3 above ground, then went underground again for several miles to the Marfork Plant.
So when Gerald Pauley talked about a large mine, he was referring not to coal production, but to the physical area that had to be examined. The last time he was underground at UBB was on March 30 when he was accompanied by state inspector Jeff Spratt. The men “walked intakes from Ellis Portal to 78 break and went to the mother drive area. We were up to the mouth of Headgate 22, the area where Tailgate 22 starts. We went to the barrier section,” Pauley said.18
Pauley admitted that quarterly inspections were not always completed, saying that he “tried to get to as many places” as he could, but he was hampered by the fact that the mine “is very large, sprawling, active, fast-paced, a lot of activity.”19
The last time he visited the longwall was on December 15, 2009, when Spratt again accompanied him. Pauley had not visited the longwall headgate entries that extend to the Bandytown fan during the first three months of 2010, saying he had been in those entries one time and stopped when he ran into water “up to my knees.”20
West Virginia’s Mine Act requires operators to submit to the WVMHST director each year a map describing the mine’s ventilation plan.21
When questioned by investigators after the explosion, Pauley appeared to have limited knowledge about UBB’s ventilation system. He testified that he would not “have a clue” as to how many ventilation plan revisions were submitted since the state received the original plan. He seemed uncertain as to whether “phases” described by the company were different plans or whether they were part of one plan. When asked about ventilation changes submitted by the company during 2009-2010, he said he would “guess a half dozen” but could not “hold myself to that.”22
Despite the fact that he had been the inspector assigned to the mine for a full year, Pauley also did not appear to have a great deal of knowledge about MSHA’s actions with regard to ventilation at UBB. “There was the ventilation change that was made in September of ’09,” he said. “I know that MSHA had them down for a few days until they had it completed. And it was where it was such a massive change that I think they ended up writing an order on that. I don’t know all the details. I know that they didn’t work for a few days over that deal.”23 Under the WVMHST system, the ventilation plans are reviewed by the supervisory level officials, so Pauley may not have been expected to be overly familiar with them.
Pauley said he also was aware that MSHA had found a problem with air reversal on the tailgate side in February or March 2010.24
A state official speaking confidentially to members of the Governor’s Independent Investigation Panel said simply, “We just don’t have the horses.” The state does not have dedicated ventilation specialist inspectors, he said, and the inspectors they have do not receive advanced training that would provide expertise in regulating mine ventilation systems. As a result, instead of offering an independent layer of safety for miners, West Virginia, like most other states, relies on MSHA to flag ventilation problems in mines, usually following the federal lead as to whether ventilation systems meet code.
As for rock dusting, Pauley said that during the year prior to the explosion, the mine had been rock dusted and he didn’t have to write many violations for dusting on production sections. On March 30, 2010, the last day he was in the mine before the explosion, Pauley said the rock dusting “was okay… I mean it had rock dust there … where a person would walk, you know, it might not be white, white. You know, you might get the grayer look. But, you know, it had been rock dusted. I can tell it had been.”25
Pauley said he didn’t write many cleaning dusting violations. “When I did write a belt up, it would basically need touch-up cleaning and some additional rock dusting,” he said. But he added that he had written 15 or 16 violations for cleaning and rock dusting in the eight months of 2009 he inspected UBB and six more in the first quarter of 2010.26
During his last quarterly inspection, Pauley said he wrote violations for cleaning and dusting on Four and Five Ellis belts, Four North Belt head area, the area from the longwall switch to Headgate 22 switch and the Headgate 22 section belt.
A violation written on March 23, 2010 – just ten days before the explosion – found that “the Headgate 22 conveyor belt, which is close to one mile in length, is not being maintained properly due to [three words illegible] cleaning under the belt as well as the spillage in the walkway and rock and coal from the ribs in the walkway as well. In addition, float dust is present from the belt head to the belt tail.”27
Just weeks earlier, a similar violation stated: “The track entry and breakthrough connected [illegible] from the longwall track switch to the #1/HG22 working section needs rock-dusted due to float dust in this area.”28
On several occasions in 2009, state inspectors wrote violations noting in one case, “Management is aware of the condition of the conveyor belt [with float dust] as the conditions have been recorded since 5/21/09 in the pre-shift record book for conveyor belts.”29
After the April 5 explosion, investigators determined, based on extensive tests, that inadequate rock dusting was a significant contributing factor to the size and intensity of the explosion.
Unfortunately, the WVMHST failed to recognize that the mine was not adequately rock dusted in part because their inspectors relied on visual inspections. Perhaps the failure occurred because the agency, at the time, did not have the means to conduct independent rock dust testing. Perhaps inspectors recognized the need for rock dusting, but did not grasp the severity of the problem at UBB. Or, most likely, the officials did not connect the dots so as to see the complete picture and recognize the overall heightened danger presented by each independent violation.
Jeff Spratt, who accompanied Gerald Pauley on at least two inspections pronounced the rock dusting “adequate,”30 and another inspector characterized it as “good” and “plentiful.”31 The April 5 explosion offered indisputable evidence that the dusting at UBB was neither adequate nor plentiful.
Nine days after the blast, Governor Joe Manchin issued an executive order tightening state requirements for coal dust control in underground mines. The order specifically directed WVMHST director Ronald Wooten “to take immediate steps to secure necessary equipment and personnel to test dust samples collected by mine inspectors.” Part of the governor’s plan was for the WVMHST to open its own lab. Lawmakers provided the state agency a supplemental appropriation of more than $400,000 in July 2010 to fund eight new positions, seven vehicles and equipment required for rock dust analysis. In September, Wooten admitted that state inspectors had not cited a single mine for violating the new rock dust standards instituted by the governor. He said that his agency had started to set up the lab at its Charleston offices, but the governor’s office intervened, saying it wanted the lab to be located at the former Dow Tech Center in South Charleston, where Manchin was promoting an education, research and technology park. And while a spokesperson for the WVMHST stated that the agency was “moving forward and will establish this testing facility as quickly as we are able to do so,”32 the lab still was not operational as of May 1, 2011.
Tragically, UBB firebosses and foremen testified that they believed UBB was in compliance with incombustibility standards because the WVMHST did not often issue citations for inadequate rock dusting. This was their stated belief even though their own fireboss examination books tell a completely different story – a story documented in ongoing notations of the need to dust.
The Governor’s Independent Investigation Panel has concluded that state mine inspectors failed to recognize faulty ventilation and inadequate rock dusting because they lack sufficient training to develop specialized expertise in ventilation, because they do not have an adequate inspection force and because they rely on visual inspections rather than scientific testing to determine whether rock dusting is compliant with state law.
The state’s failure at Upper Big Branch does not stop with safety issues inside the mine. The inability to protect the lives of miners is also a political failure – a failure by the state’s government to nurture and support strict safety standards for coal miners. If miners’ lives are to be safeguarded, the cozy relationship between high-ranking government officials and the coal industry must change, as must the relationship between the enforcement agency and the industry it regulates.
As a major employer and a major taxpayer in the state, the coal industry has long had real and presumed influence over the seats of power in Charleston. Political figures depend on the industry for campaign contributions, and they realize that careers can be destroyed if they oppose policies and legislation supported by what has come to be known as “Big Coal.” A governor who openly challenges the industry can find himself driving a cab in Chicago, as Governor William Marland did in the 1950s after he supported a severance tax on coal.
The relationship between the industry and regulators also has been problematic in terms of mine safety. It has long been an accepted practice in West Virginia for mine safety officials to move with relative ease from employment with industry to government and back.
For example, WVMHST Director Ronald Wooten worked at Consol Energy for some years before being named to head up the state regulatory agency in late 2006. Wooten left WVMHST for a job with Western Coal Corporation while the UBB investigation was still underway. Terry Farley, the state’s lead investigator into the UBB disaster, also resigned from the agency to take a position with Alpha Engineering Services, Inc., before the conclusion of the investigation.33
This is not to suggest that either man did anything unlawful. Each asked for and received approval from the West Virginia Ethics Commission to seek employment with industry. This “revolving door” phenomenon is not peculiar to West Virginia nor to the coal industry.34 The problem with this system of moving back and forth is that it has the potential for adversely affecting the state’s ability to effectively regulate the industry.
Miners depend on inspectors who are focused on mine safety inspection and enforcement, not on finding higher-paying jobs in the industry they are charged with policing. If only one official or inspector backs off a serious safety problem because of the promise of a job with a company, the consequences can be grave for workers whose very lives depend on rigorous enforcement of the law. This revolving door of employment, coupled with the easy access of coal operators to seats of power, jeopardizes the agency’s ability to adequately protect workers. And even when WVMHST officials do impose strong sanctions, the agency’s efforts on occasion have been undermined by the Coal Mine Safety Board of Appeals, a politically appointed body made up of industry and labor representatives.
In one case, UBB miner Thomas Harrah falsified his qualifications so that he could work as a foreman at UBB and another Massey mine. After Harrah failed to pass the WVMHST foreman’s test, he used the mine foreman certification numbers of two men who had passed the test. Credentialed with a forged foreman’s card, Harrah was allowed to perform more than 200 safety examinations at UBB in 2008 and 2009 and at Massey’s Slip Ridge Cedar Grove Mine in August 2009. He conducted required state training for UBB miners and foremen until WVMHST staff uncovered his deception.35
WVMHST officials moved to permanently withdraw Harrah’s coal miner certification, a severe sanction that would have prevented him from working in West Virginia coal mines.36
The Board rejected the permanent revocation and allowed Harrah to take a coal miner training course after one year. With successful completion of the training, Harrah could test again for his coal miner’s certification, and, if he passed, would be able to resume working as a certified coal miner in West Virginia.37
In another case, the WVMHST temporarily suspended the certification of a miner who was involved in a serious accident that resulted in the death of another miner. The suspended miner appealed his penalty to the Board, which granted the miner’s request to be reinstated pending appeal. The Board ruled that the WVMHST was required to submit a “proper application” to the Board prior to suspending a miner’s certificate. Prior to overturning the WVMHST action, the Board failed to give notice to the state agency and did not allow state officials the opportunity to respond to the appeal.38
The West Virginia Supreme Court of Appeals found that the Board exceeded its powers when it modified the order of suspension by imposing the additional requirement of making the WVMHST submit an application to the Board. The Court found that WVMHST fulfilled its statutory requirements by sending the Board a copy of a letter notifying the miner of his suspension. The Court further found that once probable cause is determined, the director of the WVHMST has the authority, under West Virginia law, to suspend a miner’s certification.39
The actions of the Coal Mine Safety Board of Appeals in these instances provide a graphic illustration of the intertwining of coal and government that works to the detriment of those dedicated to creating an atmosphere in which miners are assured safe working conditions.
There are within the WVMHST many dedicated, committed and safety-conscious inspectors and supervisors who are not afraid to issue citations or provide tough enforcement. However, the overwhelming scope of the job, the economic circumstances of a booming coal industry, the pressure to get along, the recognition of the importance of mining jobs within the state are factors that place immense pressures on state inspectors, pressures which make the regulatory enforcement process difficult to carry out. For those dedicated safety officials and for the workers whose lives hang in the balance, the politics of coal must be acknowledged in any discussion of workplace safety and a commitment must be made to ensure that the public interest – miners’ safety – is the foremost consideration.
1 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. ___, ___, 129 S.Ct. 2252, 2254 (2009) (hereafter “Caperton”).
2 Caperton, 556 U.S. at ____, 129 S.Ct. at 2257.
4 Caperton v. A.T. Massey Coal Co., Inc., 679 S.E.2d 223, 229 n. 1 (W. Va. 2008).
5 Caperton, 556 U.S. at ___, 129 S.Ct. at 2258.
6 West Virginia Public Radio, January 17, 2008
7 Maynard lost his re-election bid in 2008 after the Riviera photographs were made public.
8 Caperton v. A.T. Massey Coal Co., Inc., 679 S.E.2d 223 (W. Va. 2008).
9 Caperton, 556 U.S. at ___, 129 S.Ct. at 2254.
10 Caperton, 556 U.S. at ___, 129 S.Ct. at 2254.
11 Ibid. The Caperton case returned to West Virginia, where the state Supreme Court once again ruled in Massey’s favor on procedural grounds in December 2009. Caperton v. A.T. Massey Coal Co., Inc., 690 S.E.2d 322 (W. Va. 2009). The case was re-filed in Buchanan County Circuit Court in Virginia, where it was pending at the time of the release of the GIIP Report. Hugh Caperton, et al. v. A.T. Massey Coal Co., Case No. CL 10000771-00 (filed November 9, 2010).
12 West Virginia Office of Miners’ Health Safety and Training website, “A Brief History of Coal and Safety Enforcement in West Virginia,“ acquired Feb. 24, 2011.
13 West Virginia Code §22A-1-4
14 Personal communication with C.A. Phillips, Office of West Virginia Office of Miners’ Health, Safety and Training, April 14, 2011
Email from Kathy Sloan dated April 13, 2011.
15 Gerald Pauley testimony, p. 13
16 Personal communication with C.A. Phillips, Office of West Virginia Office of Miners’ Health, Safety and Training.
17 Weir International, Inc. United States Longwall mining Statistics 1989-2009
18 Gerald Pauley testimony, p. 27
19 Gerald Pauley testimony, p. 68
20 Gerald Pauley testimony, p. 43
21 WV Code §22A-2-1
22 Gerald Pauley testimony, p. 72
23 Gerald Pauley testimony, p. 34
24 Gerald Pauley testimony, p. 32
25 Gerald Pauley testimony, p. 68
26 Gerald Pauley testimony, p. 68
27 WVMHST, Violation No. 31091, March 23, 2010, 11:30 a.m.
28 WVMHST Violation No. 31080, March 2, 2010, 1:00 p.m.
29 WVMHST Violation No. 10784, June 16, 2009, 12:10 p.m.
30 Jeff Spratt testimony, p 17
31 Randy Smith testimony, p. 61
32 Ward, K, Jr., “State hasn’t followed up Manchin coal-dust order,” The Charleston Gazette, Sept. 23, 2010.
33 Alpha Engineering officers and employees were part of Massey Energy’s own UBB investigative team before Mr. Farley went to work there. (See affidavit of Terry L. Farley, Dec. 22, 2010
Screening Agreement between Alpha Engineering Services, Inc., and Terry L. Farley, Nov. 11, 2010.)
34 Legal and public administration scholars have documented and discussed the “revolving door” phenomenon for more than a half-century, identifying it as a symptom of what these experts refer to as the “agency capture” theory of administrative law. It holds that captured regulatory agencies are often substantially influenced by the very industries they are supposed to regulate. See, e.g., Marver H. Bernstein, Regulating Business By Independent Commission 3-4 (1955) (“Capture is the result of lobbying, corporate consolidation, and a revolving door in which regulators ultimately work for the businesses they regulate.”)
Louis L. Jaffe, Judicial Control of Administrative Action at 323. (1965). See, also, Rafael Gely & Asghar Zardkoohi, Measuring the Effects of Post-Government-Employment Restrictions, 3 Am. L. & Econ. Rev. 288, 290-92 (2001).
35 On April 13, 2011, Thomas Harrah pled guilty to performing a foreman’s duties even though he had failed the foreman’s exam.
36 Office of Miner’s Health, Safety & Training v. Thomas Harrah, Docket No. 09-DEC-10, Board of Appeal’s Final Order (March 9, 2010).
37 The final order can be found at http://wvgazette.com/static/coal tattoo/Harrah.pdf
38 State ex rel. Wooten v. Coal Mine Safety Bd., 703 S.E.2d 280 (W. Va. 2010).