BACON: Who will watch the watchers?

Mine disaster investigators should be independent

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Later this month, the Mine Safety and Health Administration (MSHA) is expected to release the findings of its investigation into the deadly explosion at the Upper Big Branch coal mine in West Virginia. But who, if anyone, will investigate the way the MSHA conducted that investigation?

Twenty-nine coal miners died April 5, 2010, when a powerful explosion ripped through Upper Big Branch, which was owned by the former Massey Energy Co. Less than a week after the explosion - before the formal investigation began - the MSHA declared the tragedy to be “a failure first and foremost of Massey Energy Co. management,” and then set out to prove its point. In a Massey-funded probe into the causes of the disaster, a team of experts not only disputed the MSHA’s anticipated conclusions, but accused the regulatory agency of conducting a “deeply flawed” accident investigation. The fix was in from the beginning, contends the Massey report.

In its biased investigation, the agency “lured witnesses, sometimes under false pretenses” and without an attorney, to interviews where it “framed questions to induce testimony that only supported the MSHA’s conclusions.” Moreover, the agency interfered with Massey’s investigation, prohibiting its experts from utilizing essential tools such as photography, modern mine mapping and independent coal-dust sampling. The agency coerced Massey into applying rock dust and water to areas still under investigation, thus destroying evidence, and it ordered the withdrawal of the company’s scientific experts from the mine on the basis of concocted safety concerns. Most explosively, the company charged the MSHA’s chief investigator with attempting to intimidate its experts with “retaliatory action” in order to influence their conclusions.

The company’s new owner, Alpha Natural Resources, stated that the Massey report was “unauthorized,” and declared it would conduct its own inquiry. But former Massey chairman Bobby R. Inman, who is no longer with the company, released it in early June, two days after the acquisition was completed, out of “a strong sense of responsibility for all those who mined coal.”

In his cover letter, Mr. Inman urged Congress to pass legislation to create an independent agency to investigate mine accidents, rather than letting the MSHA “police itself.” An independent West Virginia investigation found that the agency’s lax enforcement of safety rules made it partly to blame. Whether the MSHA will accept a share of the culpability in its own report is an open question. As judge and jury in the case, the agency can easily cover its own tracks. Mr. Inman cited the National Transportation Safety Board, which investigates airline crashes, as an alternative model.

I have no way of knowing whether to believe Massey’s experts, who blamed an unforeseeable upwelling of natural gas for the explosion, or the findings of the West Virginia inquiry, which concluded that the disaster was a result of the company’s violations of multiple safety standards made possible by insufficient regulatory oversight. The West Virginia panel was arguably more independent than the Massey-hired experts, but it wasn’t necessarily any less biased. It drew heavily from the tainted MSHA-directed witness interviews, and it did not have access to forensic evidence collected by the Massey team.

Unfortunately, there is no way to keep politics out of the investigation. Before its acquisition by Alpha, Massey was the largest non-union coal mining company in the country. As such, it became Public Enemy No. 1 for the United Mine Workers of America (UMWA), as well as environmental groups and other allies in the progressive movement. Moreover, the company’s CEO, Don Blankenship, was a combative and polarizing figure in West Virginia. Mr. Blankenship’s friendship with a state Supreme Court judge who ruled on a major Massey-related lawsuit was especially scandalous.

Less remarked upon is the pervasive influence of the miners union in West Virginia politics, the employment of former UMWA miners as MSHA inspectors or the role of West Virginia’s congressional delegation in advancing the union’s interests in Washington. The UMWA used the Upper Big Branch disaster to put unremitting heat on Massey, depicting the company as a renegade on safety and environmental issues. The publicity from the mine disaster was so negative and all-pervasive that Massey’s board agreed to sell the highly profitable company. The new owner, Alpha, has ample incentive to make peace with the union and the MSHA, blame former management for the catastrophe and move on.

There is no one left to defend the reputation of the old Massey Energy organization and that of the executives and managers who worked there - no one except Bobby Inman, the 80-year-old former director of the Central Intelligence Agency, who now is a professor at the University of Texas. Mr. Inman is armed with nothing more than an orphaned report, which, regardless of the merits of its contents, will predictably be dismissed as a whitewash.

Still, the issue Mr. Inman raises will not go away. There will be other mine disasters. The politics and prejudices of Central Appalachia’s ongoing class war will intrude into the investigations, and justice could be derailed as a result. The MSHA’s behavior would be a worthy subject of a congressional hearing, and Mr. Inman’s idea for an independent investigative agency is one that should be pursued.

James A. Bacon is the author of “Boomergeddon” and publisher of the Bacon’s Rebellion blog at baconsrebellion.com.

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