Tuesday, November 23rd, 2010
Despite its claim that its safety record was “average,” no U.S. coal company had a worse fatality record than Massey Energy Co., even before an explosion at its Upper Big Branch mine in West Virginia killed 29 on April 5, according to an analysis by the Investigative Reporting Workshop.
Massey, the largest coal company in central Appalachia, has come under heightened scrutiny in the six months since the disaster, the deadliest mining accident in nearly 40 years. But the company’s claims that it had a typical fatality rate before the accident had not been fully examined prior to the Workshop investigation, in part because the government’s Mine Safety and Health Administration does not regularly list in fatality reports the companies that control the mines.
The government has a set policy for listing smaller companies that oversee everyday operations at mines, so-called “operators.” But 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.
Photo by Mike Munden, Reuters
Don Blankenship, CEO of Massey Energy Co., talks with reporters near the Upper Big Branch mine in Montcoal, W. Va., on April 6, 2010.
The Workshop analyzed government data that it requested from the mine safety agency, and found that no company other than Massey was responsible for more miner deaths from 2000 to 2009, even though Massey was only the sixth-largest coal producer in the United States last year, according to government statistics. Both Massey and CONSOL Energy Inc. had 23 fatalities during those 10 years. But CONSOL produced more coal, giving Massey a much poorer ratio of deaths-to-production. Including this year’s fatalities, 54 workers have been killed at Massey mines since 2000, dozens more than those of any other company. The total includes the 23 before the accident, 29 from the explosion and two since.
Massey also amassed thousands more safety violations than any other coal company between 2000 and 2009. NPR reported in April that Massey is under investigation by the FBI, and CEO Don Blankenship has confirmed the company is considering takeover offers from competitors.
Massey did not respond to requests for comment on the Workshop’s findings about fatalities and violations.
The elusive truth about fatalities
Blankenship often declares that safety is his chief concern. “From the day I became a member of Massey’s leadership team 20 years ago, I have made safety my No. 1 priority,” he told a Senate subcommittee in May.
Blankenship went so far as to claim that the company’s fatality rate was typical given its size. “When you look at the 23 we had” before Upper Big Branch, Blankenship said in his testimony, “we’re 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.”
United Mine Workers of America President Cecil Roberts disputed Blankenship’s categorization, telling the subcommittee, “This isn’t the average. This is deplorable.” But Roberts did not have conclusive data to support his argument.
A spreadsheet of unrefined government data on mining accidents that includes deaths and controller information is available via the mine safety administration’s website. But downloading and interpreting it involves a number of complicated steps. See the Workshop's chart on safety records by company.
Linda Raisovich-Parsons, deputy administrator at the United Mine Workers union, said that even after months of sorting through the government’s records, she could not compile a comprehensive account of which controllers were responsible for which deaths: “The individual inspectors who investigate the fatalities — those are the ones who write those reports." When it comes to listing controlling companies, she said, "Sometimes they do, and sometimes they don’t.”
The result is a collection of incomplete public documents that act “like a veil to keep the world from knowing,” she said. “I think it’s just generally to avoid recognition and connection back to that parent company.”
Kevin Stricklin, the agency’s coal mine safety and health administrator, acknowledged that there was a problem with transparency. “I think we probably use maybe a little different system than what’s available on the website,” he said of the agency staff. “I have records to show me” which controllers are responsible for deaths, he said, “but I see … that the public doesn’t have it.”
Still, Celeste Monforton, a former mine safety agency official now working on West Virginia’s investigation into the April explosion, argued that the safety agency does a better job of publicizing data than any other arm of the government. “What other industry reports hours worked and coal produced every quarter?” she said. The Occupational Safety and Health Administration “doesn’t even have injury data on employers.”
The Workshop analysis makes clear that Massey’s safety record was far worse than those of its more productive competitors, even before the Upper Big Branch disaster. From 2000 to 2009, only six deaths occurred at mines controlled by Peabody Energy Co., the nation’s largest coal producer.
CONSOL, a public company based in Pennsylvania, was the only controller to rival Massey’s fatality record, and CONSOL produced almost 243 million more tons of coal than Massey over those 10 years, according to data from the U.S. Energy Information Administration. While CONSOL averaged 28.1 million tons of coal for every miner killed on the job, Massey averaged 17.5 million. By contrast, Peabody averaged 296 million tons of coal for every miner killed.
'Significant and substantial' violations
Blankenship dismissed mine safety violations as “a normal part of the mining process” in a radio interview after the April blast, but his company received more violations — and more “significant, substantial” violations — than any other controlling company between 2000 and 2009, according to the Workshop’s analysis. The government cited Massey for 62,923 violations and 25,612 significant ones.
The government also proposed $49.9 million in fines against Massey during that period, $15 million more than any other controller in the United States. And when the government ran an analysis of mine violations, it found that Massey’s record is worse than the raw numbers suggest, according to Department of Labor Solicitor M. Patricia Smith.
“It’s very easy to say, ‘Everybody gets violations sometimes,’ ” Smith said. “But when you actually look at comparing apples to apples and oranges to oranges, serious citations to serious citations and similar mines, Massey has a very bad record.”
The mine safety agency last week put 13 mines on notice for potential patterns of problems. Massey controls three of those mines, more than any other company. And earlier this month, the agency sought an injunction to close a Massey mine in Kentucky because of safety hazards, the first time this step has been taken.
Company's defenses assailed
The company’s leadership has pointed out that in 2009 its mines earned three Sentinels of Safety awards from the mine safety agency and the National Mining Association. That’s more than any company has received in a single year. Massey officials and its website have also highlighted the drop in Massey’s “lost-time accidents,” or incidents that cause an employee to miss work because of injury.
But both of these amount to questionable evidence of good safety policies. The Department of Labor, which oversees the mine safety agency, said that Massey had misrepresented by as much as 37 percent the injury data on which the safety awards were based. And in his congressional testimony, the union’s Roberts offered evidence that Massey prevents injured workers from taking sick leave, thereby reducing its lost-time accident rate.
“We have witnesses and people who work at Massey who tell us that when you get injured at Massey, when you get to the emergency room, someone from human resources meets you there,” Roberts said. “And we’ve got one young man who had his finger cut off, and the person from human resources said to this young man, who incidentally worked at Upper Big Branch, ‘You don’t have to take time off here. You can come back to work, and we’ll give you light duty, and that way we don’t report this.’
“That’s not a lost-time accident at Massey, so I think the statistics are borderline fraudulent here,” he added.
Was safety the No. 1 priority?
The Department of Justice, the mine safety agency and the West Virginia state government are all investigating the causes of the Upper Big Branch disaster. The site remains closed to mining operations.
The explosion in the spring was so massive that it left train rail lines in the mine twisted “like a pretzel,” according to newly sworn-in Sen. Joe Manchin, who was West Virginia’s governor at the time of the disaster.
A report to President Obama 10 days after the accident suggested that dangerous levels of methane and coal dust particles in the air directly caused the explosion. Before April 5, coal dust levels had been perilously high in 79 percent of the tests the mine safety agency ran on air samples from Upper Big Branch. Witnesses have said that mine supervisors often took down curtains designed to protect air quality after inspectors left.
According to a lawsuit against him, Blankenship wrote in a 2006 memo to mine superintendents: “If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e. — build overcasts, do construction jobs, or whatever) you need to ignore them and run coal. This memo is necessary only because we seem not to understand that coal pays the bills.”
Challenging fines, avoiding punishment
Between 2005 and the Upper Big Branch disaster, Massey was fined nearly $44 million for safety violations but paid only 27 percent of that. This is largely because Massey, as well as other controlling companies, has brought legal challenges against an unprecedented number of fines ever since the government cracked down on enforcement following the Sago mine disaster in January 2006.
Massey challenged over 13 times more violations in 2006 than the year before, and the company contested 65 percent or more of its violations each year between 2006 and 2009. Current and former government officials say that companies have more than a financial incentive to delay the payment of fines: It can also help them avoid a “pattern of violations” classification, which is based on final offenses in the company’s last two years.
“If everything that you had been cited for is caught up in litigation, you have no two-year history, and so I think that was the strategy that they designed,” Monforton said.
The tactic has largely worked, and has led to a severe backlog of legal actions. More than 61 percent of penalties against Massey since 2006 were still unresolved at the time of the April 5 tragedy. Upper Big Branch is a particularly egregious example: Massey had paid only 21 percent of the almost $1.9 million in fines assessed at that mine between 2005 and the explosion date.
Government transparency issues
The Mine Safety and Health Administration, meanwhile, has faced a growing chorus of discontent over its nondisclosure on a number of issues. Chief among them is the agency’s Upper Big Branch investigation, which is being conducted behind closed doors and has been marred by Massey officials’ refusal to cooperate. The company accuses the mine safety agency of improperly conducting the investigation, but the public knows little about the details because the agency has made only token gestures at transparency.
The government agency is holding what journalist Ken Ward Jr. called “a series of staged hearings and town hall meetings where various issues about Upper Big Branch would be discussed,” while it continues to question witnesses and conduct research in private.
Additionally, the safety agency recently claimed it had lost documents related to its “pattern of violations” enforcement program, which it did not apply to Upper Big Branch before the disaster. This was the case despite the fact that in 2007 the mine had more than 10 times the number of “significant and substantial” violations needed to qualify for such a classification, among other red flags. Two months ago, a Department of Labor report cited the mine safety agency for “unreliable results” and other issues.
A resurgence in dangerously high methane levels at Upper Big Branch forced an evacuation of federal investigators earlier this month, lest another deadly explosion occur.