In late July, a somber crowd gathered before a long granite wall etched with the rough silhouettes of men standing against jagged mountain peaks. They represented the 29 miners who died in an explosion at Massey Energy’s Upper Big Branch Mine in West Virginia in 2010. The disaster initially jolted lawmakers to investigate safety conditions in mines, but today, King Coal still rules both in Appalachia and on Capitol Hill.
But some hope to chip away at the industry’s impunity by reforming the lax regulatory system. A new bill, introduced by Senator Jay Rockefeller (D-WV), would impose stronger penalties on mine operators that knowingly cause or maintain safety problems like those that at Upper Big Branch. The legislation would also beef up the Mine Safety and Health Administration’s (MSHA) investigative powers.
According to a summary of the bill, companies that violate safety rules would face heavier punishment, including criminal penalties. One provision, which responds to reports that Massey had illegally manipulated its ventilation systems, would impose fines of more than $200,000 for unauthorized ventilation changes, which could “lessen clean air flow in the mines and increase the likelihood of explosions.”
The bill would give MSHA new subpoena power to probe witnesses and other evidence, such as safety records, during investigations. Another measure would explicitly bar companies from “Keeping Two Sets of Books” – a tactic mine operators may use to conceal unsafe conditions from regulators.
Keith Wrightson, an advocate with Public Citizen, says the bill offers regulators more leverage to combat dangerous industry practices. “Fraud and corruption should equal jail time, and that’s what we have here in all these incidences with this particular industry,” he says. “Cooking books, cutting corners and not being very valid players in industry. I just don’t know why people have to constantly cheat to get ahead.”
Tony Oppegard, a former mine safety prosecutor in Kentucky who has also helped individual miners bring cases against employers, has some idea why companies cheat. After spending decades challenging the industry’s fierce resistance to regulation, he says, “The industry’s top priority is making money. And they don’t want safety to stand in the way of profits.”
Oppegard speculates that had MSHA had more expansive subpoena powers prior to the Massey explosion, it could have helped avert disaster, “because if any miner had come into the MSHA office and said, ‘They’re making us do X, Y and Z up at the Upper Big Branch Mine, then MSHA could have subpoenaed supervisors, the safety director, etc. and investigated these allegations, which maybe would have prevented a disaster from occurring in the first place.”
Under current laws, Oppegard says, even if violations are eventually uncovered, lower-level managers might end up getting the brunt of the punishment:
The problem with [the law] right now is that you’re not really going after the people who are responsible for creating the unsafe conditions in the first place. You’re going after the poor shmuck who’s got to document the hazardous conditions in the record book. And he’s probably been told by the company, ‘We don’t want you writing anything in the book that shows violations.’
In addition to tackling safety gaps, the bill would address the epidemic of Black Lung, the chronic respiratory illness that has plagued generations of miners. MSHA would have to issue a new regulation to “lower exposure levels to respirable dust” and would also be directed to investigate incidences of Black Lung every five years – a first step toward mitigating the risks that existing regulations have failed to address for decades.
An investigation by NPR and the Center for Public Integrity revealed that in the Appalachian communities at the heart of the coal industry cases of the most damaging phase of the disease “have quadrupled since the 1980s.” And regulatory loopholes have enabled rampant cheating in companies’ data reporting. In a sad addendum to the Upper Big Branch tragedy, the autopsies of the miners’ bodies reveal that many of them already bore signs of the disease in their lung tissue. So even if they hadn’t perished in the disaster, they might have eventually succumbed to the more insidious hazards of the job.
Noting the voluminous evidence of deadly mine-related health problems, Wrightson said, “This is a problem that should have been taken care of in the 1950s or the 60s… Mining is a huge contributor to the economy. But if you’re killing all the miners, who’s going to be left behind to work in the mines?”
House Republicans recently declined to answer that question when they moved to block MSHA from developing tighter coal-dust regulations.
Underlying the push for stronger regulation is the basic moral dilemma presented by Clay Mullins when he testified in Washington about the death of his brother Rex at Upper Big Branch:
I’ve been a coal miner almost 34 years… We know right from wrong in coal mining. The employers know right from wrong. But they chose to do the wrong thing … and not provide these men with a safe workplace.
While coal companies inevitably put profits first, the law is supposed to prioritize ethics. As the industry’s shameful death toll rises, the pressure is now on lawmakers to finally make the industry pay for doing wrong.
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Michelle Chen is a contributing writer at In These Times and The Nation, a contributing editor at Dissent and a co-producer of the “Belabored” podcast. She studies history at the CUNY Graduate Center. She tweets at @meeshellchen.
