The Massey way
Every coal company has its own personality and its own method of operation. An examination of Massey’s history and corporate culture is instructive in understanding how the company operated.
Massey’s origins date back to 1916 when founder A. T. Massey began his career as a coal broker in Richmond, Virginia. In 1920 Massey incorporated the A. T. Massey Coal Company, which marketed coal produced by small, independent mines throughout the coalfields. Massey’s grandson, E. Morgan Massey, who took the reins of A. T. Massey Coal in 1972, moved the company from coal sales to coal mining and production.1
Don Blankenship became the company’s chairman and chief executive officer in 1992. Blankenship’s rise began in 1984 when the United Mine Workers of America (UMWA) targeted for a selective strike a Massey subsidiary run by Blankenship. The 15-month struggle was punctuated by violence on both sides and marked the first time in 60 years that a coal company had brought in strikebreakers and armed guards.2 When it was over, it was apparent to most observers that Massey had won a major victory, eroding the UMWA’s influence and solidifying the company’s position in the Appalachian region.
Blankenship further enhanced Massey‘s position in the coalfields in the late 1980s by buying huge reserves of metallurgical (met) coal at discount prices. At the time many companies were dropping out of the met coal business because of an influx of cheap foreign steel that had crippled the U.S. steel industry.3 Blankenship bet on the resurgence of the met coal market, and he was right. As the company prospered, so did Blankenship, who was named president of A.T. Massey in 1990 and chairman and chief executive two years later when E. Morgan Massey retired. The company was renamed Massey Energy in 2000.4
At the time of the Upper Big Branch explosion, Massey Energy was the fourth leading coal producer in the country and the largest in the Appalachian region, producing approximately 40 million tons of coal each year from underground and surface mines in Virginia, West Virginia and Kentucky.5
The company is acknowledged for the number of jobs it provides and for such contributions as bringing doctors to coalfield communities; providing financial assistance to coalfield schools and scholarships for students; supporting volunteer fire departments and sports events; and staging an annual Christmas gift-giving program for needy children. But Massey is equally well known for causing incalculable damage to mountains, streams and air in the coalfields; creating health risks for coalfield residents by polluting streams, injecting slurry into the ground and failing to control coal waste dams and dust emissions from processing plants; using vast amounts of money to influence the political system; and battling government regulation regarding safety in the coal mines and environmental safeguards for communities.
While Massey Energy officials have maintained that the safety standards of their mines exceed the state and national requirements, it would be hard to convince Delorice Bragg and Freda Hatfield, whose husbands died in a fire in Massey’s Aracoma Alma Mine #1 in January 2006. Federal authorities cited Massey for “reckless disregard” for safety rules in connection with the deaths of Don Bragg and Ellery “Elvis” Hatfield.
Federal, state and independent investigations concluded that the Aracoma fire was the result of negligent mining practices – a spark from a misaligned conveyor belt ignited combustible materials that had been allowed to build up along the belt. A crew of twelve men who were working deep underground traveled through heavy smoke, feeling their way out of the mine. Ten escaped with their lives. Hatfield and Bragg, who somehow became separated from the rest of the crew, perished. MSHA determined that the company failed to adhere to such basic safety standards as performing safety inspections, installing a sprinkler system and maintaining a water supply that could have been used to fight the fire. The most serious safety violation involved the removal of stoppings, or ventilation controls. This allowed the fire to enter the miners’ primary escape passage, and, in the words of U.S. District Judge John T. Copenhaver “doomed two workers to a tragic death.”6 In formal testimony, a district MSHA official said simply, “Aracoma was a mess.”7
Federal indictments were issued, and on December 23, 2009, Aracoma Coal Company entered a guilty plea to ten criminal violations of mine safety law related to the fatal fire and agreed to pay a $2.5 million criminal fine. The plea included one felony count of willful violation of mandatory safety standard resulting in death (admitting that the failure to replace a ventilation wall had resulted in the deaths of Hatfield and Bragg), eight counts of willful violation of mandatory safety standards and one count of a false statement.8
MSHA’s investigation of the fatalities resulted in more than 1,300 citations against the company for violating federal mine safety laws and regulations. Massey paid an additional $1.7 million in civil penalties to resolve those citations, making the combined total of $4.2 million in criminal and civil penalties the largest fines imposed on a coal company in the history of federal mine safety laws.9 A separate civil suit brought on behalf of the widows was settled for an undisclosed amount in late 2008.
More than four years later, evidence surfaced indicating that Blankenship was aware of problems at the Aracoma mine prior to the fire. On April 17, 2010, coal industry watchdog Ken Ward, Jr., a reporter for The Charleston (WV) Gazette, wrote that Blankenship sent one of his top troubleshooters, Linton Stump, to investigate conveyor belt conditions at Aracoma. Stump detailed his findings in a memo to Blankenship dated January 13, 2006 – six days before the fire – in which he warned Blankenship “while safety reports from Aracoma managers showed ‘everything was okay,’ Stump had found that ‘indeed it was not.’”10
Logan County Circuit Judge Roger Perry ruled that the memo could be used in civil actions brought by miners who had survived the fire, saying, “It could be argued that Mr. Blankenship was personally overseeing operations at Aracoma.” In October 2010, Massey settled with nine of those workers.11 Four foremen were sentenced to one year of probation on federal misdemeanor charges in December 2010.12
While the UBB investigation was underway, the American University’s (AU) School of Communications released a detailed study of Massey’s safety record conducted by its Investigative Reporting Workshop. The study, based on a careful search of available data from public sources, including MSHA’s on-line database, concluded that from 2000 to 2010, no United States coal company had a worse fatality record than Massey Energy. Fifty-four workers were killed in Massey mines during that time, including the 29 who lost their lives in the April 5 explosion and two who died at other mines after the explosion.13
Blankenship protested that Massey worked in “difficult underground conditions” and maintained that the 23 miner deaths in Massey mines in the ten years preceding the UBB disaster was “about average.”
“If you look at the number of fatals, we’re a big producer, so absolute numbers when you’re producing 40 million tons a year tend to get big, even with your best efforts,” he said.14
The assertion just wasn’t true, according to the AU investigators who found that during that 2000-2009 time period, just six fatalities occurred in the mines operated by Peabody Energy, the nation’s largest coal producer. Massey averaged 17.5 million tons per fatality. Peabody, on the other hand, averaged 296 million tons of coal for every miner lost.15
The AU investigators said their job was complicated by MSHA’s reporting system, which attributes fatalities to subsidiaries rather than to companies that actually own mines. The report stated that “controlling companies such as Massey – defined by the government as companies ‘controlling the coal, particularly the sale of the coal’ – are not typically named, although controllers often set safety standards and claim credit when awards are given for good safety histories.’”16
During the 10-year time period examined, the reporters found that Massey had been cited for 62,923 violations, including 25,612 considered “significant and substantial.”17 During that time, MSHA proposed $49.9 million in fines against Massey, $15 million more than any other company.
A report to President Obama from MSHA following the April 5 disaster stated that the number of citations inspectors issued at the Upper Big Branch Mine increased dramatically in 2006 and included “an alarming increase in the kinds of serious problems that required miners to be removed from portions of the mine.”
In December 2007, the agency warned the operator that the mine would be placed in “pattern of violation” status if conditions did not improve. The level of serious violations dropped, but spiked again in 2009 when MSHA issued 515 citations at UBB – 39 percent of which were for “significant and substantial” violations. The agency issued 48 withdrawal orders at UBB – a rate nearly 19 times the national average. Another 124 citations were issued in 2010 prior to the explosion. MSHA maintained that, but for a computer program error, UBB would have been placed into “potential pattern of violation status” in October 2009 because of the significant and substantial violations assessed to it in 2008 and 2009.
“In short,” the report stated, “this was a mine with a significant history of safety issues, a mine operated by a company with a history of violations, and a mine and company that MSHA was watching closely.”18
In testimony before a U.S. Senate subcommittee on May 20, 2010, Blankenship maintained that safety had been his number one priority since he became part of Massey’s management team. “I felt that other safety programs were too reliant on slogans and signs. So I designated safety as S-1: Safety First.”
Blankenship went on to tout Massey as “an innovator of safety enhancements,” a company that “has introduced many safety practices that have later been adopted throughout the mining industry in the United States and around the world.” Blankenship ticked off those practices, which included reflective clothing, metatarsal boots, seat belts for mining equipment, flapper pads for roof bolters, strobe lights on underground equipment, lights on belt line feeders, reflective tape on surface vehicles, among others.19
In a letter to U.S. Senator Jay Rockefeller dated June 1, 2010, Blankenship again offered his defense of Massey’s safety record. “Massey does not place profits over safety,” the letter stated. “We never have, and we never will. Massey Energy’s safety program has more than 120 rules and equipment enhancements that exceed legal requirements. The result has been a 90 percent reduction in our lost time accident rate, which has been better – often dramatically better – than the industry average for 17 of the last 19 years. Our safety innovations have been adopted by our competitors and have been praised by MSHA. In fact, just last fall, MSHA honored Massey Energy with three Sentinels of Safety awards, the highest safety honor in the mining industry. No other mining company has ever matched that accomplishment.”20
The Governor’s Independent Investigation Panel made an effort to determine how Massey’s Safety One (S-1) strategy was implemented at the Upper Big Branch mine, and why a program aimed at providing Massey miners with added safety in the workplace failed so badly on April 5, 2010.
In a deposition arising out of the lawsuit brought by the Aracoma widows, Blankenship said he personally developed the S-1 program after watching Ford Motor Company commercials that advertised Q-1, “quality is job one.”21
He offered this description of the program:
- S-1 is intended to mean that “[s]afety is job one.”
- S-1 is essentially a documentation of what Massey believes are the best safety practices, as well as requirements that Massey internally has “that exceed the law as to equipment and procedures.”
- “[E]veryone is suppose [sic] to be familiar with the manual. They have instruction on it. They use the S-1 or P-2 manuals when they are installing belts or doing different things. It is sort of, to speak, the reference book for the activity at the mines.”
- The S-1 manual provides guidelines that miners are expected to use in the execution of their duties on a day-to-day basis.
- Massey miners do not carry the S-1 manual with them when they work. There may be a copy of the manual at the group office, but “maybe not at every mine.”22
After Blankenship coined the S-1 phrase and began to develop the manual, there “was a concerted initiative to put it in place.”23 At one time the company maintained a list of its S-1 compliant mines, but Blankenship said during the deposition that Massey no longer did so.24 One former safety director, Frank Foster, testified that during his long tenure as safety director at Massey, no mine was certified as S-1 compliant.25
Despite Blankenship’s protests to the contrary, Massey Energy’s safety program in fact appeared to be just a slogan, at least to the workers at UBB. When asked about S-1 and P-2, Denver Lambert, a miner with 34 years of experience who had worked at UBB since 2001, correctly identified the terms as “safety first, production second,” but when asked if they were just slogans or “was that the way they managed the mine,” Lambert replied, “That’s slogans.”26
Bruce Vickers, who had worked at UBB since 1996, testified that S-1 is “supposed to be safety first.” When asked whether safety was first and production second, Vickers replied that it “all depends on who you got to work for.”27
Purchasing agent Gregory Clay, who had worked at UBB for 15 years, went even further. Asked if he was familiar with the terms S-1 and P-2, Clay said, “Safety first, production second. It should be the other way around. They want production.” He said he was unaware of an S-1 handbook.28
Michael Ferrell, who worked for 13 years at Massey until he left in February 2010, testified that Massey’s safety program did not call for any practices significantly different from those required by state and federal law. Ferrell said those who tried “to do the right thing” in terms of safe mining were “usually the people that [got] kicked in the teeth for it.”29
Jonah Bowles, who retired three months after the UBB explosion, served as safety director at Marfork, another Massey operation. Bowles mentored the two safety directors at UBB – Berman Cornett and James Walker.30
Bowles testified that the safety directors met monthly with Elizabeth Chamberlin, Massey Energy’s vice president for safety. When asked whether safety violations were discussed at the meetings, Bowles responded, “I’m sure discussions about the violations took place… usually we had a discussion on how many violations was received and stuff like that, but not picking out exactly what violation it was or anything like that.”31
Bowles said he did not know if miners who might be adversely affected by hazardous conditions cited in the violations were made aware of them.32 For each violation received, Bowles would “write the number of points that violation would cost and the estimated cost, and I’d have to write that on the face of the violation,” which was then sent to the president.33
“It was a big thing, you know, the cost of the violations,” he said. “Lots of times, you know, if I got a serious violation, I’d call the superintendent and tell him what it cost him that day for his particular violations that he got.”34
There is an obvious disconnect between the lofty safety standards extolled by Blankenship and the reality of conditions inspectors and investigators found in the Upper Big Branch mine. Requiring reflective clothing, metatarsal boots and seat belts are all good practices. But they do not address the basics of safe mining – proper ventilation, adequate rock dusting, well-maintained equipment and fire suppression. In those basic areas of worker safety, Massey Energy has fallen woefully short.
As for Blankenship’s assertion that the company does not place profits over safety, again, evidence strongly suggests otherwise. For example, section foremen at UBB were required to fill out a number of reports at the beginning of their shifts, during the shifts and at the end of the shifts.35
The reports recorded production metrics such as continuous miner load time (in seconds); shuttle car haul time (in seconds), time for installation of a row of roof bolts (in seconds). All bosses appeared to know the “Six Key Numbers” of interest to upper management – the continuous miner load rate, shuttle car haul rate, feeder dump rate, roof bolt per row rate, average cut depth and linear foot per continuous miner. There is nothing on the daily forms that reflects measures of safety, such as pounds of rock dust applied by machine or linear feet of accumulated float coal dust removed.36
As for the dramatic decrease in lost time accident rate, investigators identified more than two dozen cases at the Upper Big Branch mine alone in which Massey failed to report injuries. The Department of Labor said Massey misrepresented the injury data by as much as 37 percent. Underreporting of that magnitude can certainly skew the data and be the difference between an average or worse than average injury rate.37
And, it should be noted, none of Massey’s underground mines received the joint National Mining Association and MSHA Sentinels of Safety awards in 2009. The Massey worksites that received the awards were two coal processing plants and a surface mine.38
This history of inadequate commitment to safety coupled with a window dressing safety program and a practice of spinning information to Massey’s advantage works against the public statement put forth by the company that the April 5, 2010, explosion was a tragedy that could not have been anticipated or prevented.
1 Information from Massey Energy website and Funding Universe website, acquired July 15, 2010
2 Time, August 26, 1985
3 Funding Universe, acquired July 25, 2010
4 Massey Energy website, acquired July 15, 2010
5 Information from Massey Energy website and Funding Universe website, acquired July 15, 2010
6 Coal Tattoo, Ken Ward, Jr., January 18, 2010
7 McAteer, J. Davitt and Associates, The Fire at Aracoma Alma Mine #1: A preliminary report to Governor Joe Manchin III, November 2006
8 State Journal, January 2, 2009
9 Coal Tattoo, Ken Ward, Jr., February 2, 2010
10 Ward, Ken, Jr., The Charleston Gazette, April 17, 2010
11 Coal Tattoo, Ken Ward, Jr., November 18, 2008
12 Associated Press, Dec. 9, 2010
13 Russonello, Giovanni, Investigative Reporting Workshop, American University, Nov. 23, 2010 (available on-line at http://investigativereportingworkshop.org/investigations/coal-truth/story/massey-had-worst-mine-fatality-record-even-april-d/)
14 Don Blankenship, testimony before U.S. Senate Committee on Appropriations, Subcommittee on Labor, Health and Human Services, Education, and Related Agencies (May 20, 2010). A video recording of Mr. Blankenship’s testimony is available on-line at: http://www.c-spanvideo.org/program/293624-3
15 Russonello, Giovanni, Investigative Reporting Workshop, American University, Nov. 23, 2010 (American University School of Communications, Investigative Reporting Workshop)
16 Russonello, Giovanni, Investigative Reporting Workshop, American University, Nov. 23, 2010 (American University School of Communications, Investigative Reporting Workshop)
17 The term “significant and substantial,” as defined by federal law, refers to those violations in which an “inspector has indicated that based upon the particular facts surrounding the violation there exists a reasonable likelihood the hazard contributed to or will result in an injury or illness of a reasonably serious nature.”
18 Briefing by Department of Labor, Mine Safety and Health Administration on Disaster at Massey Energy’s Upper Big Branch Mine South, at the request of President Barack Obama, April 2010
19 Don Blankenship, testimony before U.S. Senate Committee on Appropriations, Subcommittee on Labor, Health and Human Services, Education, and Related Agencies (May 20, 2010). A video recording of Mr. Blankenship’s testimony is available on-line at: http://www.c-spanvideo.org/program/293624-3
21 D.L. Blankenship Deposition, 7-11-08, Delorice Bragg, et al., v Aracoma Coal Co., et al., Civil Action No. 06-C-372-P (“B. Depo”), pp. 198-199.
22 Id. at 21- 24
23 Id. at 26
24 Id. at 27
25 Id. at 27
26 Denver Lambert testimony, p. 44
27 Bruce Vickers testimony, p. 57
28 Gregory Clay testimony, p. 113
29 Michael Ferrell testimony, p. 139
30 Jonah Bowles testimony, p. 19
31 Jonah Bowles testimony, p. 48
32 Jonah Bowles testimony, p. 49
33 Jonah Bowles testimony, p. 58
34 Jonah Bowles testimony, p. 59
35 Massey Energy Production Report (PR1-101, PR2-102), Massey Energy Lost Footage Report (PR 103).
36 Massey Energy Section Boss Start of Shift Report (SSR-104), Massey Energy Section Boss End of Shift Report (ESR-105), Daily Underground Report (DUR-114).
37 Russonello, Giovanni, Investigative Reporting Workshop, American University, Nov. 23, 2010 (available on-line at http://investigativereportingworkshop.org/investigations/coal-truth/story/massey-had-worst-mine-fatality-record-even-april-d/)
Lessons Learned or Forgotten? The Westray Mine Disaster
On May 9, 1992, sparks from the cutting bits of a mining machine ignited methane gas and an explosion propagated by excessive coal dust rocked the Westray coal mine in Plymouth, Nova Scotia, Canada. Twenty-six miners, aged 22-56 were killed in the blast. The bodies of 15 men were recovered but 11 men remain forever entombed deep in the mine. A memorial to the 26 men declares “Their light shall always shine.”
The Nova Scotia provincial government convened a public inquiry to investigate how and why the 26 men died. In his report, Justice K. Peter Richard wrote: “Regardless of the theories, philosophies, and procedures that management espoused on paper, ...management, through its actions and attitudes, sent a different message: Westray was to produce coal at the expense of worker safety.”1 He noted the source of the ignition was less relevant than the overall conditions in the Westray mine. “Had there been adequate ventilation, had there been adequate treatment of coal dust, and had there been adequate training and an appreciation by management for a safety ethic, those sparks would have faded harmlessly.”2 Justice Richard addressed the potentially competing forces of safety and production, saying they “must be so harmonized that they can co-exist without doing harm to each other. It is here that the regulator must assume the role of monitor and aggressively ensure that the balance is understood and maintained.”3
The Inquiry observed: “The foremen and overmen at Westray ...had little or no say in the day-to-day operation of the mine and were expected only to carry out the orders of Westray mine manager Gerald Phillips as delivered to them by him personally or through his underground manager, Roger Parry.”
Mine operators are required to “clear or treat coal dust to render it non-explosive. ...management failed to order and enforce sufficient and systematic stone dusting underground at Westray.”
”Generally, the regulating, control, and monitoring of the main airflow was inadequate and poorly planned. ...the ventilation system in the North Mains and Southeast sections of the mine was haphazard, reflecting little or no planning.”
”This company demonstrated a disdain for any regulatory regime, whether the regime concerned the safe design of the mine or the safe operation of that mine.”
Several top Westray officials, including the former company president and the chairman of the mining company, refused to testify before the Inquiry. Manslaughter and criminal negligence charges were filed by Canadian prosecutors against two of Westray’s mine managers, but those charges were stayed in 1998 by the Supreme Court of Canada. Family members of the Westray miners and co-workers were infuriated that no one was held accountable for the loss of the 26 coal miners---deaths that investigators said were preventable.
After nearly a decade of effort by the United Steelworkers, along with family members and other labor advocates, Canada’s criminal code was amended to address corporate negligence. The law now places a legal duty on those who direct the work of others, including taking reasonable steps to prevent bodily harm to any person arising from such work.4
1 The Westray Story: A predictable path to disaster. Report of the Westray Mine Public Inquiry, Justice K. Peter Richard, Commissioner, 1997. http://www.gov.ns.ca/lwd/pubs/westray/
4 Department of Justice, Canada. Criminal liability of organizations, (Bill C-45, adopted October 2003). See Sections 22.1, 217.1, and definition of senior officer at http://laws.justice.gc.ca/PDF/Readability/C-46.pdf