U.S. owes dead coal miners real change

Jake Blumgart

is a freelance reporter-researcher based in Philadelphia whose most recent project was on mine safety

In last month's congressional hearings on the April 5 tragedy at the Upper Big Branch coal mine, the message from the victims' families and coworkers was unanimous: The 29 dead men were forsaken by their employer, Massey Energy Co., and by their government.

Massey Energy's history of chronic safety violations is well-established:

The Upper Big Branch mine alone was cited for 458 safety violations in 2009, for a total of 3,007 since 1995. It was "a ticking time bomb," one miner told members of the House Education and Labor Committee during the hearing in West Virginia.

But the fault cannot rest solely on the company. The Mine Safety and Health Administration (MSHA) had every opportunity to rigorously enforce existing law, but instead issued endless citations that were contested by Massey and lost in bureaucratic stasis. The agency never took its regulatory efforts to the next level. "MSHA inspectors at Massey did little to protect miners," said another witness, who lost his son in the explosion.

The country owes the men who died this year real change, the kind that doesn't end with enacting safety regulations, but enforces them.

Every major mine-safety bill has been passed in disaster's wake. Nonetheless, until 1969, the coal industry used its political allies in both parties to strip harsher penalties, even fines, from proposed legislation. Even the Federal Coal Mine Health and Safety Act of that year, the first significant regulatory legislation, included only minimal fines and allowed companies to contest these before an independent review commission. Eight years after the law's passage, Sen. Lee Metcalf (D., Mont.) opined, "On paper, the miner is protected. In practice, he is not."

The few mine-safety laws passed since 1969 have included similar loopholes, and companies still have multiple levels of appeals to contest fines and citations. Between 1996 and 2006, almost half of contested MSHA penalties were reduced after appeal by between 47 percent and 66 percent, according to the Government Accountability Office. Real change would have to address these weaknesses in the process.

Mining advocates argue that tougher regulations are unnecessary, citing declining fatalities as proof that companies are improving. This is partially true: 203 miners died in 1969, 139 in 1977, and 30 in 2008. But there are fewer coal miners today than 30 years ago: mines employed more than 210,000 people in 1977, including office and above-ground workers; in 2008 the industry employed about 87,000 people.

Even more significant, over the last four decades, most coal production has shifted from the deeply dangerous, labor-intensive underground mines predominant in Appalachia to the mechanized, significantly safer strip mining out West. Still, in 2007, the nonfatal injury rates in the bituminous underground mining industry were 66 percent higher than in all private industry. In 2006, the year of the Sago and Darby disasters, the fatal-injury rate per 100,000 workers was 49.5, almost 12 times the rate for total private industry workers. We can do better than this.

West Virginia and Kentucky, two states that still mine coal mostly underground, have abysmal safety records: combined, they account for a quarter of the nation's coal production over the last 14 years, but 287 of its 487 mining deaths. (Pennsylvania has suffered 30 mining deaths in the same period.) Almost every recent major mining disaster has occurred in Appalachia. Current legislation hasn't done nearly enough to ease the danger of workplace accidents.

What would real change look like? Increasing fines is a start, but it's not enough. The system was supposed to have been strengthened in 2007, with the maximum penalty for "reckless or repeated" violations increased to $220,000. But because MSHA doesn't often assess the harshest penalties, even against inveterate offenders like Massey, and most other citations are endlessly contested, advocates will have to work for both increased safety in the mines and a saner fining system.

Along with a much-needed update to safety requirements, legislators should incorporate several ideas recently put forward by proponents like the United Mine Workers of America (UMWA) and the coworkers and families of the men who died at Upper Big Branch.

To address the ineffectual fine structure, the UMWA has proposed a legislative fix where companies would be forced to pay fines up front, with the money held in escrow. If their challenge is successful, they get the money back; this would minimize the incentive to interminably delay reviews.

Another UMWA suggestion would ensure regulator accountability. MSHA's post-disaster investigations could be paired with an independent inquiry into MSHA's behavior leading up to an accident. The knowledge that non-agency eyes will review their work should help keep inspectors sharp. Currently, MSHA investigations are usually performed entirely in-house.

According to last month's congressional testimony, many Massey workers knew they were operating in a dangerous environment but feared for their jobs if they complained. (Most union contracts allow miners to leave work if conditions are believed to be unsafe.) Miners testified in favor of strengthening whistle-blower protections for nonunion workers who report hazardous conditions.

Any serious effort to change should include such provisions, along with updated safety standards and increased fines. And members of Congress have signaled a willingness to act, though details of a bill have not been released. In a recent Senate hearing, Robert Byrd (D., W.Va.) acknowledged that while Massey officials "bear the ultimate responsibility" for the deaths, MSHA also has "much to explain." Let's hope Byrd and his colleagues keep that sentiment in mind as they craft legislation to protect the nation's miners.