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State backs up previous Upper Big Branch reports

Chris Dorst
Family members of the coal miners killed in the April 2010 explosion at the Upper Big Branch mine leave after a meeting where state mine safety officials released the results of their investigation into the explosion.
Chris Dorst
Clay Mullins, whose brother Rex was killed in the explosion, said he blames state and federal mine safety officials, as well as Massey Energy leaders, for his brother's death.
Chris Dorst
State mine safety director C.A. Phillips said his agency would perform an internal review to determine how well they protected miners at Upper Big Branch.

Read the state report here.

BECKLEY -- West Virginia regulators cited three mine officials and issued more than 250 violations in their investigation of the Upper Big Branch Mine Disaster, but took a measured tone in describing what caused the worst U.S. coal-mining disaster in nearly 40 years.

State investigators have concluded that poor ventilation, inadequate cleanup of coal dust and a routine failure to fix safety problems led to the April 2010 explosion that killed 29 miners at a Massey Energy operation in Raleigh County.

The state Office of Miners' Health, Safety and Training generally agreed with three previous reports about how the blast occurred, but did not break the 253 violations issued to the company into those that contributed to the disaster and those that didn't.

Agency officials have yet to set the proposed fines for all of the violations. Generally, state mine safety fines are up to $3,000 per violation. But 22 of the Upper Big Branch violations were written as "special assessments" that could draw fines of up to $10,000. One of those was for Massey's failure to report the explosion within 15 minutes - a violation that draws an automatic fine of $100,000.

In a nearly 600-page report, state officials traced the explosion to a small ignition of methane gas in the mined-out "gob" area behind Upper Big Branch's longwall mining machine.

The longwall's shearer likely sparked when it hit a piece of sandstone, state officials said. That ignition, the state report said, erupted into a huge blast when it hit accumulations of coal dust that had been allowed to build up without being properly neutralized.

But state investigators outlined their findings in a report that was much more mildly worded than previous reviews by an independent team, the United Mine Workers union and the federal Mine Safety and Health Administration.

"The removal of hazards and violations identified during required mine examinations were not corrected in a timely manner," the report said, in perhaps the strongest language it used.

In an interview, state mine safety director C.A. Phillips explained there were reasons his agency's conclusions were much less harshly worded than previous investigation reports.

"We have to base any actions we take on facts and not allegations," Phillips said. "If we write a violation, we want to win that violation."

Phillips and his investigation team released their report Thursday morning, first in a more than 2 1/2-hour, private meeting with families of the miners who died and then in an afternoon news conference. Both of those events were held a convention center in Beckley. Later in the day, state officials provided their report to officials from Alpha Natural Resources, which bought Massey in June 2011, in a meeting at the Glade Springs Resort.

The report's release comes one day after U.S. Attorney Booth Goodwin charged one of two Upper Big Branch superintendents, Gary May, with conspiring to violate safety laws and cover up the resulting hazards in a scheme aimed at putting coal production ahead of worker safety. Court records indicate May is expected to reach a plea deal and is cooperating with investigators, suggesting prosecutors may continue to move up the Upper Big Branch management ladder.

Jack Bowden, whose son-in-law, Steve Harrah, died at Upper Big Branch, said after the meeting that families were relieved to see the federal criminal probe progressing.

"I hope he goes up the ladder and down the ladder," Bowden said. "It was murder, basically. [Former Massey CEO] Don Blankenship should be held accountable."

Former coal miner Clay Mullins, whose brother Rex Mullins died in the disaster, said he blames not only Massey, but also state and federal mine safety officials who were supposed to ensure miners have a safe place to work.

"I hold Massey responsible. I hold MSHA responsible, and I hold the state responsible," Mullins told a small group of media gathered outside the family meeting. "They all failed."

As details of the state's investigation were released, lawmakers in Charleston were stalled this week in working out mine safety reform legislative language that coal industry lobbyists would not oppose. The cornerstone of the proposed bill is Gov. Earl Ray Tomblin's plan to fight drug abuse in the coal industry, a problem that no investigator has suggested had anything to do with the Upper Big Branch deaths.

One sticking point in the legislation is industry opposition to an effort to rewrite state law to hold higher-ranking corporate officials more responsible for safety problems at West Virginia's mines - a change state investigators argued for in their new Upper Big Branch report.

"Individuals involved in the day-to-day decision making at the mine must be held accountable regardless of their title," the state report said. "The mine foreman is the highest ranking official that current state law addresses."

State investigators also complained in their report that they had little authority over industry ventilation practices, another issue that is being considered for new legislation.

As the two-year anniversary of the deadly blast approaches, the state agency's report is the last formal investigation document expected. Still to come is an MSHA "internal review" meant to examine how federal officials performed in protecting the Upper Big Branch miners.

Phillips said Thursday that his agency has decided to do an internal review similar to MSHA's to examine the state's actions at Upper Big Branch. While the effort would be modeled after MSHA's self-examination, Phillips said he was not sure if the state's report would be made public.

In most technical respects, state investigators appear to have reached conclusions largely similar to those of MSHA, UMW safety experts and the independent team led by longtime mine safety advocate and former MSHA chief Davitt McAteer.

The reports all agree that the explosion involved an ignition of a small amount of methane gas that transitioned into a massive coal-dust explosion.

Like the other teams, state investigators said the ignition was likely sparked by the longwall shearer's cutting teeth and developed into a huge explosion when it hit coal dust spread throughout the mine. But, the state report held out the possibility that it could have been caused by falling rock hitting sandstone behind the longwall.

State officials offered a sort of combination of other theories about where the methane that fueled the initial ignition came from.

The McAteer team said the methane came from the mined-out area behind the longwall, while MSHA said it flowed from a gas reservoir under the Upper Big Branch floor.

State investigators said the methane was "mostly liberated" from cracks in the mine floor that were located in areas behind the longwall. But they also rejected the theory put forth by Massey Energy officials that the blast was caused by a huge flood of methane from those floor cracks.

"Rather than a dramatic outburst, it is more reasonable to believe that methane was liberated along the face in increased amounts caused by the breaks in the floor and from the gob, and that this increased liberation caused an undetected buildup against the gob," the state report said.

And like previous reports, the state's review found that poor planning of Upper Big Branch's ventilation system - meant to flow fresh air through the mine to sweep away methane and coal dust - contributed to the disaster. The report said West Virginia regulators need more authority over mine ventilation, but also called on the industry to take the lead in dealing with such issues.

"Coal operators must take a more proactive approach to the ventilation of each coal mine under their authority and responsibility," the state report said. "The industry has taken a step back over the years in proper planning and preparation as long-term plans are developed. The operator must once again lead the way in doing the hard work and extensive work necessary to properly ventilate each mine."

The key difference in the state's new report, though, was in its tone and style.

McAteer's teams blasted Massey Energy's management of Upper Big Branch as "profoundly reckless." The UMW's report was titled, "Industrial Homicide." MSHA said Massey "routinely ignored obvious safety hazards" that led to "the tragic death of 29 miners."

State investigators included no such condemnations of the mine's safety practices or denunciations of its corporate management in their report.

The state report includes extensive discussion of the interplay between coal seams, sandstone and accumulations of plant fossils. Investigators attached two detailed appendices describing local geology.

But the state's report includes only a few paragraphs that vaguely summarize the violations inspectors found, with no specific discussion of what role those violations played in the disaster.

And when outlining general problems that inspectors found at Upper Big Branch after the explosion, state officials used much more measured language.

For example, the state report concurred with other investigations that found one contributing factor was the failure to spread adequate amounts of crushed limestone, or "rock dust," to keep coal dust from exploding.

But state investigators explained that, "Based on the available information and records, it is believed that some areas would be rock-dust deficient at any given time. Mines should be pro-active in the rock-dust program instead of waiting until rock-dust deficient locations have been identified."

The state report also agreed with previous reviews that found mine managers at Upper Big Branch frequently did not ensure that safety hazards were documented in required record books and promptly fixed.

In its report, the state agency explained such problems by saying, "during the investigation, testimony varied as to how workers performed their fireboss and supervisory duties. It is impossible to draw solid conclusions other than that additional training should have been given to assist firebosses and supervisors in their understanding of the plans and importance of following all approved plans relating to their specific areas of responsibility."

State inspectors issued individual citations to mine foremen Terry Moore and Ricky Foster, alleging that they neglected to ensure coal-dust accumulations were cleaned up. They face potential fines of up to $250, officials said.

The state's report said inspectors have moved to revoke the mining license of a third Upper Big Branch employee, but declined to identify that person because he hadn't been served with the revocation notice yet.

West Virginia inspectors also issued an individual citation to an MSHA employee, Ted Farrish, alleging that he took a cigarette lighter underground in July 2010 during the Upper Big Branch probe. State and federal laws prohibit all smoking materials in underground mines.

The state's report did recommend that the coal industry consider moving toward the use of containers of water or crushed stone in strategic locations inside underground tunnels, to help keep small gas or dust ignitions from turning into major disasters.

These so-called "passive barriers" are widely used in other mining countries, and have been recommended for years by safety experts, but are not required in West Virginia or elsewhere in the United States.

"Additional defenses are needed to prevent propagation of a methane explosion into a coal dust explosion," the state report said. "Explosion barriers have been studied for years and have been found to be effective in stopping an explosion."

McAteer, whose independent team faulted the state agency's inspections of Upper Big Branch prior to the disaster, credited the state for "being honest about its own failings" in the new report. He cited a detailed description of how parts of the mine's longwall section were not "rock dusted" for months, a problem state inspectors should certainly have seen.

"But the bigger problem is that the state simply doesn't address the systematic failures of the company at all," McAteer said after reviewing the new report. "It's all well and good to say, 'We need more training for company mine examiners.' But there was training. There was just a failure to do the work properly.

"I think the report does not go far enough in addressing the problems that exist in the state political system and how to regulate large industries," McAteer said.

Reach Ken Ward Jr. at or 304-348-1702.

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