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Internal Probe, Criminal Charges Still Pending In W.Va. Mine Disaster

Dec 7, 2011 (Morning Edition)

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(12:30 p.m. ET: Scroll down for an update about MSHA's regulation of the mine and questions about whether it followed through on some issues.)

It's been a busy week for the 29 families of the coal miners who lost their lives last year in the explosion at Massey Energy's Upper Big Branch mine in West Virginia.

As we reported Tuesday, the Mine Safety and Health Administration (MSHA) issued its final report on the cause of the tragedy, echoing earlier findings that placed blame on Massey Energy and what investigators called "systematic, intentional, and aggressive efforts to avoid compliance" with mine safety law.

And the same day, U.S. Attorney Booth Goodwin, said he had reached a settlement with Alpha Natural Resources, the company that bought Massey earlier this year. Goodwin called the $209 million civil and criminal settlement the biggest ever springing from a coal mine disaster.

Briefings about each development were held for the victims' families.

There's more to come.

MSHA is conducting an internal probe of possible agency failures that may have contributed to the tragedy. And a federal criminal investigation continues.

Former MSHA official Tony Oppegard says MSHA's final report underscores the importance of the agency's internal investigation.

"When you read the report [Upper Big Branch] sounds like one of the worst mines in the history of mining," says Oppegard, who now is a mine safety advocate and attorney. "You have an enforcement agency that had to know this was an outlaw operation and they did not use the stringent enforcement tools they had which possibly could have prevented the disaster."

MSHA coal mine safety chief Kevin Stricklin defends his agency's enforcement at Upper Big Branch. "We did shut the mine down 48 times in the year leading up to the explosion," Stricklin notes. "What we don't have is the ability to say because you received so many orders we're going to shut you down permanently."

But the agency failed to place the Upper Big Branch mine on a special "Pattern of Violations" list reserved for repeat offenders and a trigger for heightened scrutiny by regulators. MSHA also didn't use one of its toughest enforcement tools at Upper Big Branch — hauling the mining company into federal court.

Agency officials said this week that the results of their internal investigation are still months away. But Oppegard is skeptical of the probe given an apparent conflict of interest.

"It's hard to imagine that MSHA is going to do a real thorough job, a real critical analysis of itself given the magnitude of this disaster," Oppegard says. "It's just human nature. It's going to be hard to point the finger at your co-workers and say that they did far less than they should have."

Assistant Secretary of Labor Joe Main says MSHA has been investigating itself since 1989.

"I can guarantee you when you go back and look at those reports, there have been a lot of problems that have been found," Main says. "And I think when we issue our [internal] report, it's going be one that's going to identify shortcomings that we need to address."

In addition to that report, Upper Big Branch families are also anxious to see whether the Justice Department will file criminal charges against former Massey Energy executives and managers. Mine disaster prosecutions rarely reach into corporate offices. The only criminal charges filed in the Upper Big Branch investigation so far were not directly related to the mine explosion and involved two low-level officials.

That's what Goodwin may have been referring to Wednesday when he was pressed about possible criminal charges. "Yes," he told reporters, "our investigation has revealed criminal conduct."

Goodwin wouldn't elaborate but he did describe the circumstances at Massey Energy that could lead to indictments of executives if wrongdoing is found.

"Knowledge is a key element," Goodwin explained. "Intent is a key element and when it moves up the ladder all the information doesn't necessarily flow with it."

But then Goodwin noted a documented characteristic of Massey Energy management. "Massey was a company that was fairly closely controlled by a reasonably tight group of individuals."

Criminal charges at the highest levels are important to Gene Jones, a power company engineer whose identical twin Gene was killed at Upper Big Branch.

"I want to see someone actually go to jail," Jones said, after being briefed about the developments this week. "[That will] show these other coal companies, 'Listen. If you do wrong, you're going to go to jail."

"That has to happen," Jones adds, because brothers will continue to die in coal mines until convicted mining executives go to jail.

Goodwin declined to speculate about when the criminal probe might conclude.

Update at 12:30 p.m. ET:

Ken Ward of The Charleston Gazette has just posted an item on his Coal Tattoo blog that suggests a direct link between the Upper Big Branch mine explosion and MSHA's regulation of the mine. The link is buried in MSHA's own final report about the cause of the disaster. Ward's picked up on the connection and it's related to Massey Energy's discredited theory that the explosion was caused by a natural infusion of natural gas.

Massey's theory was based on pockets of natural gas (which is mostly made up of explosive methane) trapped beneath the Upper Big Branch mine. The Gazette previously reported several inundations of gas into the working sections of the mine in 1997, 2003 and 2004. The mining process can release trapped gas. Massey said a similar infusion occurred on April 5, 2010, and it alone fueled the deadly explosion that day. But MSHA and an independent investigative team concluded that excessive coal dust fueled the explosion — coal dust that Massey failed to control. The final report supports that conclusion.

Still, MSHA's final report also concludes that a methane pocket beneath the floor of the mine is the source of the methane that started the April 5 explosion:

"Based on physical evidence, the investigation concluded that methane was likely liberated from floor fractures into the mine atmosphere on April 5, the day of the explosion. ... MSHA believes that this is the same fault zone associated with methane inundations at UBB in 2003 and 2004, and in a 1997 methane explosion."

And MSHA, as Ward and NPR have noted in the past, failed to address this known gas leak problem. Agency documents show that MSHA officials met with mine managers, discussed the problem in detail and made specific recommendations to help control these dangerous leaks.

As Ward notes in his post, MSHA issued a citation in its final report for failure to follow those recommendations. Ward writes:

"What's not said there is what MSHA has partly acknowledged already, that agency officials never made sure Massey implemented these recommendations or some other plan to avoid methane doing exactly what it did on April 5, 2010. I say partly, because MSHA has not really explained in any detail how in the world this could have happened, which agency officials exactly were responsible — let alone how they have been punished or what steps have been taken to ensure the same thing doesn't happen again."

In response to a question from Ward at a news conference yesterday, Assistant Labor Secretary Joe Main repeated what he's told the Gazette and NPR in the past: MSHA's action or inaction on this key safety issue will be addressed by MSHA's own internal review of the agency's possible failures before the explosion. Main also said this in response to Ward:

"One of the things we can't miss here is ... the mine operator had the information that was available on how to address the problem."

Of course, the whole point of mine safety regulation is to make sure mining companies obey the law and respond to safety issues identified by MSHA.

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