Questions remain in Upper Big Branch explosion - Business, Government Legal News from throughout WV

Questions remain in Upper Big Branch explosion

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Though state officials issued more than 250 violation and singled out two mine foremen in their investigation of the Upper Big Branch disaster, a number of questions and for some, justice, remains to be delivered for the death of 29 coal miners.

A report issued by the Office of Miners' Health, Safety and Training on Thursday following a meeting with family members described the events of the nation's worst coal mining disaster in decades.

"The explosion began after gas, mostly methane, was ignited by frictional impact as the shearer was cutting sandstone roof or by the rock colliding with steel supports or other rock while falling from the sandstone roof behind the longwall shields," the report states. "It is deemed more likely that the longwall mining machine (shearer) ignited the methane."

That methane, the report states, spread further into the mine.

"The methane explosion quickly transitioned into a coal dust explosion, which severely damaged ventilation controls, conveyor belts, water lines, electrical systems and numerous items in its path until the fuel was consumed and the explosion extinguished itself outby the track switch at the beginning of North Glory Mains," the report states.

Wednesday, federal prosecutors announced charges against Gary May, a former superintendent at UBB who was charged with conspiracy to defraud the federal government for disabling a methane monitor and falsifying safety records.

May faced up to five years in prison if convicted. He and former security chief Hughie Elbert Stover are the only higher-ranking employees who have faced charges so far.

Stover was accused of lying to investigators and attempting to destroy safety documents. Federal prosecutors are seeking the maximum 25-year sentence for Stover.

The announcement from the U.S. Attorney left at least one family member of a UBB victim hoping the prosecutor would continue climbing the ladder in assessing culpability, even if it goes as far as the former CEO of UBB operator Massey Energy, now owned by Alpha Natural Resources.

"I'm not satisfied, because I haven't seen any results so far," said Clay Mullins, whose brother Rex Mullins perished at UBB. "I've seen one conviction, and that was a little security guard. … There's still several out there that I hold responsible. … They need to go all the way to the top."

Jack Bowden, whose son-in-law died in Upper Big Branch, was also not surprised. He also said federal prosecutors should look to Don Blankenship in assigning blame.

"This report basically said the same thing as the other three and it was, I'll tell you guys, it was murder, basically," Bowden said.

A number of reports have suggested that perhaps state and federal officials themselves are responsible for the event. MSHA is to soon make available the results of an internal review of its investigations.

The state agency was not clear as to whether an internal review of the state, to begin "soon," would ever be made public. WVOMHS&T Director C.A. Phillips said an internal review would likely be similar to MSHA procedures.

"We would have to do what MSHA is probably in the process of doing right now," Phillips said. "It's never been done in the state of West Virginia and that's an internal review. … If we do an internal review, we will handle it internally."

The basic narrative of the event differed very little from the investigations by an independent team, the federal Mine Safety and Health Administration and the United Mine Workers of America. The basic premise is that sparks, either from falling rock or from longwall shearers cutting into the rock, ignited a cloud of methane, forming a fireball that would later be fueled by an accumulation of coal dust.

According to the state report, foremen Ricky J. Foster and Terry W. Moore failed to clean conveyor belts and apply rock dust to important mine areas on numerous occasions leading up to the explosion. Rock dust is often spread onto mined areas to render otherwise highly explosive coal dust inert.

"The amount of rock dust being maintained on mine surfaces at the time of the explosion was insufficient to stop a coal dust explosion," the report states. "The region where the dust explosion started does not appear to have had rock dust periodically applied over the fine coal dust. Periodic applications of rock dust over accumulating fine coal dust are necessary to render such dust harmless."

Foster and Moore are among 18 Massey executives and mine managers who invoked their right to avoid self-incrimination and refused to testify during mining investigations. The lack of cooperation from Massey officials has caused a number of problems during the investigation, Phillips said.

"We needed to talk to those people as bad as anyone we could talk to," Phillips said. "Unfortunately, 29 people that we really wanted to talk to, we couldn't."

State law allows only $250 fines for individual violations, but the Office of Miners' Health, Safety and Training could seek suspension or revocation of the foremen's licenses and certifications.

The state report also indicated methane did in fact come from cracks in the floor of the mine. The finding is consistent with Massey Energy's claim that the explosion was an "act of God" resulting from a sudden inundation of methane.

The state does, however, discount Massey's theory, citing that air flow would have prevented the gas leaking from the floor to accumulating in amounts consistent with a purely methane-fueled explosion.

The state also agrees with another major finding of the UBB explosion that the UMWA, independent investigators and MSHA had determined – UBB was preventable.

Phillips was confident that West Virginia does not have another UBB waiting to happen.

"If we look at Upper Big Branch, we've probably got three other operations that have similar conditions as they did at Upper Big Branch," Phillips said. "At those particular operations, due to the fact that they have proper ventilation, and they rock dust well, we have not experienced any events at those particular operations."

More state-level violations could be issued in regard to Upper Big Branch, Phillips said, but the agency is waiting for some information that was not made available to the state.

"The Department of Justice and MSHA have conducted interviews away from the Mining Academy that the state, we weren't privy to those interviews," Phillips said. "We did not participate in those interviews, nor would they allow us to participate in those interviews."

With more information, Phillips said, further state-level punishment for safety violations could be coming. In the meantime, the federal prosecutor's case is coming along and still under way.

"I've been around this business for 41 years. I've investigated too many disasters," Phillips said. "I can tell you this: This is the earliest I've ever seen the involvement of the Department of Justice."

Looking forward, Phillips told journalists at a press conference Thursday that he was confident he had enough inspectors, despite a revolving door of employees, and that laws being forged in the Legislature are satisfactory.

Shortly after families received the news, Gov. Earl Ray Tomblin issued a statement on the findings.

"Much like the other reports on the tragic explosion at the UBB mine -- one common theme prevails; this disaster was preventable," Tomblin said. "I am committed to making sure that our laws are properly enforced and that we pass meaningful mine safety legislation.  We simply cannot bear another mine disaster in West Virginia.

"I am working with the Legislature to make sure that my legislation, currently pending in the House of Delegates, passes so that we can work to prevent another mine disaster from occurring. I am confident that the Legislature will soon pass House Bill 4351 so that I can sign it and we can immediately begin its implementation."

Though drug screening legislation has been a focus on the mine safety bills being examined in the Legislature, substance abuse was not a finding of the UBB investigation, Phillips said.

Phillips added that he is concerned with the state's ability to regulate mine ventilation, a problem other investigations into Upper Big Branch has revealed as a contributing factor to the explosion.

The state report also highlights the importance of ventilation standards.

"Mine ventilation is the most important of the defenses to prevent mine explosions and respirable dust disease," the report states. "… Ventilation is essential to dilute and remove noxious gases, methane and respirable dust."

 The report revealed "WVOMHS&T has insufficient statutory language to regulate the way that coal miners are ventilated."

"We're definitely concerned with our ventilation regulations," Phillips said. "At the present time they're being looked at. Hopefully, by the end of this session, we will have some ventilation regs that are much better than the ventilation regs we currently have."

The report also calls for further studies of "explosion mitigation barriers."

"Further research is needed to demonstrate the practical application of water barriers, rock rubble barriers and other explosion-mitigating strategies as supplemental protection with generalized rock dusting to prevent explosion propagations in the future," the report states. "The data combined in the full report will serve as a resource for future research."

The report also calls for better training key mine employees to ensure future safety in the state's mines.

"Additional training must be conducted to assure that the operators and those entrusted by the operator to make the required safety exams in the mines be adequately trained in the performance of their duties," the report states.  "Training to clearly identify hazards and the corrective actions to eliminate those hazards must become standard throughout the mining community and immediately replace the routine haphazard practices in place today."

 

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