Re: What caused W. Va. mine explosion?

by Aaron Sun Apr 11, 2010 12:23 am

ziggy wrote:Well apparently MSHA tried to enforce the laws that already existed, but the legal mechanism for adjudicating MSHA's citations for violations was allowed to be crippled into near inertia by Massey's lawyers who appealed virtually every citation to a body they knew was being crippled into inaction.

That's not quite true. From your story earlier.

Figures show that Massey tops the coal industry in challenging citations. Last year, Massey contested 34 percent of its alleged violations, compared with the national average of 27 percent that year.

That's hardly every citation. Nor does it explain why more judges weren't hired to move these cases along faster even though this has been the industry standard for a very long time, including the increased appeals over the past 4 years.

ziggy wrote:But until those citations result in a "pattern of continuing violations" as defined in law, then legally they amount to little more than fodder for paper shufflers down the lines of the legal bureaucracy.

First, many experts believe UBB did meet the standard for a pattern of continuing violations as defined by the law. Second, when MSHA realized that the fodder for paper shufflers was clogging the system, they could have hired more judges to negotiate settlements or changed the criteria for appealing citations.

They did neither.

by Aaron Sun Apr 11, 2010 8:39 am

Perhaps if the same agency that is responsible for monitoring and regulating the industry didn't also conduct the investigations and suggest reform and changes, it might be a little different.

If an independent investigator who wasn't a part of MSHA conducted the investigations fairly and above board without the agenda of protecting their own then we might actually see some change.

I agree with this opinion whole heartedly.

In mining, it is the regulator, the Federal Mine Safety and Health Administration, who investigates the accidents, levies fines and promulgates the regulations. These are inherently contradictory responsibilities. The public, and more importantly the family members, sense it. There are inevitably state and federal legislative hearings and investigations, often with competing facts and explanations. The family members are often left with unanswered questions and the sinking reality that the clock is simply ticking again for the next tragedy.

What miners, operators and their family members deserve is an unbiased investigation, completed by an independent body that has only one goal: the prevention of accidents so that mining becomes as safe as possible as soon as possible.

The establishment of a mining equivalent of the NTSB makes sense, and it could be started quickly. The model has been in place for more than 30 years, and it works. Congress should consider emergency legislation moving forward with the establishment of an independent mine investigation board so that the safety of miners becomes a national priority.

source

by ziggy Tue Apr 13, 2010 7:50 pm

Manchin calls to end appeals of mine safety citations

CHARLESTON, W.Va. -- When inspectors repeatedly cite any coal mine for violating safety laws that regulate methane, coal dust and electrical equipment, mine owners should not be allowed to repeatedly appeal those violations and continue producing coal.

That was the message Gov. Joe Manchin delivered Wednesday afternoon when he met with the state Board of Coal Mine Health and Safety, in the wake of last week's explosion that killed 29 miners at Massey Energy's Upper Big Branch Mine in Raleigh County.

"We should have the right to say, 'You either fix it or close down.' You should not be able to appeal it," Manchin said.

http://www.wvgazette.com/News/201004130875

by ziggy Tue Apr 13, 2010 8:03 pm

Stephanie wrote:Mr. Ziggy..........I am part of that pesky "tort reform" crowd.

I'm not buying what you're selling. I don't believe that MSHA is crippled by attorneys. Are you stating that MSHA cannot close a mine on the spot due to high levels of toxic gases, coal dust, and other dangerous conditions?

I don't believe it. You're going to have to pretend I'm from Missouri and show me. They can, but they don't. The question is why? Is it due to some sort of fincancial arrangement or incestuous relationship between the coal companies and inspectors?

It is my understanding that MSHA does NOT have that authority, Stephanie. There is this little thing called due process. That means more than a government inspector coming along and deciding that forty eleven things are wrong and ordering it shut down. Due process means having a trial / hearing and offering evidence for a judiciary body to determine if the charges of unsafe conditions are true and correct. Due process also means having appeals of those decisions and on and on until every case that threatens to shut down an operation is endlessly in some stage of due process. We just don't hear much about it until a mine blows up and kills a couple dozen people.

To show a "pattern of violations" means that this processs has to be repeated however many times within whatever time frame the law defines as a "pattern of violations". And when individual charges go on almost endlessly, due process findings that a company has a pattern of repeated violations are damn near impossible.

Again, the entity with the very best opportunity to either fix the problems our shut the mine down was Massey Energy- the mine's owner and operator. It would not have needed a bunch of lawyers nor to engage in any entended due process to fix its own facilities or shut them down.

by ziggy Tue Apr 13, 2010 8:13 pm

Stephanie wrote:Well, you're more generous to MSHA officials than I am, Aaron.

Massey Coal is a for-profit entity. It doesn't exist for humanitarian purposes, ...........................................?

Have you not watched and heard Massey's TV commercials? Have you not seen the commercial that shows several miners riding a little car called a "man trip" into the mine, and showing a conveyor belt carrying coal out of the mine, and with the announcer saying, "What goes into a Massey coal mine is more important than what comes out of that mine". Have you not seen that commercial? To me that says that Massey wants us to think that it is ALL about humanitarian concerns of its employees. What am I mising here?

by ziggy Tue Apr 13, 2010 8:52 pm

Aaron wrote:
ziggy wrote:Well apparently MSHA tried to enforce the laws that already existed, but the legal mechanism for adjudicating MSHA's citations for violations was allowed to be crippled into near inertia by Massey's lawyers who appealed virtually every citation to a body they knew was being crippled into inaction.

That's not quite true. From your story earlier.

Figures show that Massey tops the coal industry in challenging citations. Last year, Massey contested 34 percent of its alleged violations, compared with the national average of 27 percent that year.

That's hardly every citation. .............................

But they challenged 100 percent of those citations / orders that would have made a REAL difference:

Appeals kept Montcoal mine operating

...................................But when MSHA did its review, in September 2009, Upper Big Branch did not meet a final standard: That it have at least one "withdrawal order" issued by MSHA inspectors for serious and substantial mine safety violations.

Upper Big Branch didn't have a single such order. It had 16 of them.

But Massey mine managers and lawyers challenged all 16, and those appeals were still pending. So Upper Big Branch didn't meet MSHA's requirement -- spelled out in an agency policy, not federal law or regulations that were subject to public comment -- for using one of the toughest tools given to the agency charged with protecting the lives of U.S. coal miners.

http://wvgazette.com/News/201004110319

by **Stephanie** Tue Apr 13, 2010 10:28 pm

OK.........so a Putnam County Health Inspector can shut down the IGA in Winfield for too many critical violations on a given day, but MSHA can't close a mine? If I had the time I'd be doing a little legwork in an attempt to find out which of us is correct.

by **Stephanie** Tue Apr 13, 2010 10:48 pm

From the same article:

Under federal law, MSHA generally does not have broad authority to simply close a troubled coal mine, unless it seeks a federal court injunction to stop anything its inspectors believe "constitutes a continuing hazard to the health and safety of miners."

They need a judge to issue an injunction. So according to this article, UBB was one "withdrawal order" away from having the designation of "a pattern of violations" because the 16 MSHA issued were being appealed.

Why didn't they seek an injunction? Apparently that is a mechanism available to them. If not at a mine with so many serious violations, don't you have to ask yourself under what circumstances they would?

Obviously things have to change. I don't think appeals need to be eliminated, though. I do think the mine should be closed while waiting for the appeal.

by Aaron Tue Apr 13, 2010 11:13 pm

From the same article.

"MSHA elevated its enforcement levels where repeat violations were noted and where the negligence of the operator suggested it do so," said a set of MSHA "talking points" distributed last week. "Even with the large number of violations at this mine site, MSHA lacked the legal authority to shut down the mine."

But, the complex "screening criteria" that MSHA said prohibited it from putting Upper Big Branch on "pattern of violation" status are not part of the federal mine safety law.

When lawmakers added the violations pattern language to the law in 1977, they simply said the status should apply "if an operator has a pattern of violations of mandatory health or safety standards ... which are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other mine health or safety standards."

The guideline was written internally by MSHA, when the Bush administration decided in 2007 that it would begin for the first time using the pattern of violations section of the mine law.

And while Main told a House Labor Committee hearing in February that appeals by industry of MSHA actions had skyrocketed because of heftier fines, creating a backlog that was stalling enforcement actions, that issue had been raised for two years with little action by anyone to resolve it.

No matter which way you slice this, MSHA screwed the pooch big time on this one. They're as guilty as Massey.

by ziggy Wed Apr 14, 2010 9:52 am

Stephanie wrote:OK.........so a Putnam County Health Inspector can shut down the IGA in Winfield for too many critical violations on a given day, but MSHA can't close a mine? If I had the time I'd be doing a little legwork in an attempt to find out which of us is correct.

If the IGA has a lawyer on call to file an immediate appeal of the citation in the local Circuit Court, the "shut down" will not take place until the Court makes a finding that the citation issued and the "shut down" order is in legal order and based on reasonable evidence- essentially making a definitive legal finding that someone is guilty of violating something or other. An officer's order to "shut down"- whether a coal mine or a grocery store deli- is meaningless unless there is legal apparatus to support such an order. A store manager who defies an "order" to shut down, and contunues to operate the store is in no jeopardy unless and until the due process legal procedures have run their course.

by Aaron Wed Apr 14, 2010 6:00 pm

I guess you missed the part about this being a problem for 2 years Ziggy and MSHA did nothing to solve the problem. And given that the rule wan't federal law but merely an internal code written in by MSHA and thus easily removed, it seems odd that MSHA did nothing, at least to me.

Thoughts?

by ziggy Wed Apr 14, 2010 10:19 pm

Aaron wrote:I guess you missed the part about this being a problem for 2 years Ziggy and MSHA did nothing to solve the problem. And given that the rule wan't federal law but merely an internal code written in by MSHA and thus easily removed, it seems odd that MSHA did nothing, at least to me.

Thoughts?

In West Virginia, state agency rules are approved by the state legislature and have the force of law, and cannot be changed without the consent of the legislature.

For federal level agencies, the rules promulgated by agencies, once adopted and implemented, cannot be arbitrarily changed on a whim. http://en.wikipedia.org/wiki/Administrative_Procedure_Act

Having said that, I agree with you that MSHA has responsibility. But often government agencies are permeated with former industry personnel who bring a certain hostility to the regulatory process. Indeed, that is part of what politics is about- lobbying to get industry and commerce sympathizers inside the agencies to make the agencies less effective at what the original enabling legislation intended.

So again, I go back to my original point- that Masey Energy Co. had more authority and the authority to act quickly to fix its long-standing problems at UBB, or to shut that mine down, but it failed to do so. So Massey, more than any other entity, is by far the more culpable party here.

by Aaron Wed Apr 14, 2010 10:32 pm

2 years is a long time to set on something that you know is a problem. As for the change, they had no problem instituting it, they could have made the change. I'm not excusing Massey but I disagree on the "by far" especially given that this isn't the only mine Massey has violations. To find for a pattern, the company as an entirety can and should be judged. So how many violations does MASSEY, not UBB, have?

by ziggy Wed Apr 14, 2010 11:02 pm

Aaron wrote: I'm not excusing Massey but I disagree on the "by far" especially given that this isn't the only mine Massey has violations.

Why would you disagree with the "by far"? What would have prevented Massey from fixing the problems or shutting it down any month, any week, any day, any hour that it decided to abide by the laws rather than to have its lawyers help it avoid complying with the laws?

by ziggy Wed Apr 14, 2010 11:03 pm

He told the delegates the Mine Safety and Health Administration (MSHA) inspectors had “shut this mine down over and over and over again.”

They brought the men outside, they brought them to a safe place. But as soon as they left the same thing happened again and again. They didn’t correct the violations.

http://blog.aflcio.org/2010/04/14/mine-workers-president-roberts-masseys-blankenship-should-be-jailed/

by SamCogar Thu Apr 15, 2010 7:29 am

But often government agencies are permeated with former industry personnel who bring a certain hostility to the regulatory process.

YADA, ... YADA, ..... YADA

Same ole frigging excuses.

Who do you blame all your f-ups on, your mother or your father or a cousin or a school principal?

by ziggy Thu Apr 15, 2010 11:09 am

Who do you blame all your f-ups on, your mother or your father or a cousin or a school principal?

What f-ups, Sam? I am Ziggy- the one and only. No f-ups here.

by Aaron Thu Apr 15, 2010 11:00 pm

Of course Roberts is going to say that Ziggy. He hates Massey with a passion because they won't negotiate with the union and is about as credible as Don Blankenship or Joe Main.

You ask what prevented Massey from shutting the mine down and I answered that in one of my first post and that is as "we all know", greed.

But as this is a nation of checks and balances, we as a nation know that will happen. MSHA's failure was as unforgivable as Massey's, especially when it turns out that every reason they give for not doing their job is either mendacity or could have been rectified years ago.

by ziggy Sat Apr 17, 2010 12:23 am

Aaron wrote:You ask what prevented Massey from shutting the mine down and I answered that in one of my first post and that is as "we all know", greed.

Then what prevented Massey from fixing the problems in lieu of shutting it down?

And what about those TV commercials where the announcer says, "At Massey energy what goes into a Massey coal mine is more important than what comes out of that mine"- accompanied by video of men riding into a mine on a mantrip juxtiposed against coal coming out of the mine on a conveyor?

Is that just b.s. hype?

by SamCogar Sat Apr 17, 2010 9:43 am

Is that just b.s. hype?

Why ask, a "greenie" should recognize hype when they see it.

by Aaron Sat Apr 17, 2010 10:03 am

ziggy wrote:
Aaron wrote:You ask what prevented Massey from shutting the mine down and I answered that in one of my first post and that is as "we all know", greed.

Then what prevented Massey from fixing the problems in lieu of shutting it down?

And what about those TV commercials where the announcer says, "At Massey energy what goes into a Massey coal mine is more important than what comes out of that mine"- accompanied by video of men riding into a mine on a mantrip juxtiposed against coal coming out of the mine on a conveyor?

Is that just b.s. hype?

Yes. This is why changes must be made at Massey up to and including the Board of Directors if necessary.

But that doesn't excuse MSHA and their failures in this incident.

by Sponsored content