Shafted


How the Bush administration reversed decades of progress
on mine safety.


By Ken Ward Jr.

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On the afternoon of September 23, 2001, thirty-two miners were repairing drilling machines and hoisting tunnel supports into place in the No. 5 mine of Jim Walter Resources Inc., in Brookwood, Alabama. The No. 5 is North America’s deepest coal mine, tracking the six-foot-high Blue Creek seam almost half a mile beneath the rolling hills just east of Tuscaloosa.

At about 5:20 p.m., a chunk of ceiling dropped onto a battery charger deep in the mine’s tunnels. The impact set off a spark, which ignited a pocket of methane gas. The small explosion injured four miners, including Gaston Adams Jr., who was hurt so badly that he could not walk. When coworkers rushed to his aid, a second, much larger blast ripped through the mine, killing Adams and twelve of his would-be rescuers.

It was the nation’s deadliest coal mine accident in seventeen years.

The September 23 tragedy came less than two weeks after the terrorist attacks in New York City and at the Pentagon. At a memorial service for the dead miners, Elaine Chao, President Bush’s secretary of labor, compared the miners’ rescue efforts to those of the firefighters and police officers who died trying to save 9/11 victims.

“In the deepest darkness of these tragedies, we have also seen the best that America has to offer,” she said, before making a promise to the miners’ families. “Whether it be the terrorist attack on September 11 or the mine disaster that claimed thirteen lives this last weekend, we are determined to do everything we possibly can to keep it from ever happening again.”
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More than five years later, the Bush administration can claim that, indeed, no more terrorist attacks have occurred on American soil. But its record on mining safety is decidedly more troubling. As of mid-January of this year, 165 coal miners had been killed on the job since the Jim Walter disaster—some blown apart by gas explosions, others suffocated under cave-ins, still others crushed by runaway mining machines. Last year, forty-seven coal miners died on the job, the most in any full year since 1995, when forty-seven also were killed. A dozen perished last January at the Sago mine in north-central West Virginia. For two days Americans watched and waited for word of the miners’ fate; they breathed a collective sigh of relief after hearing that all were alive, only to find out that the information was incorrect. Two more miners died two weeks later in a fire at the Aracoma mine in southern West Virginia. On May 20, an explosion in eastern Kentucky killed five more mine workers—making 2006 the first year since 1981 in which more than one accident killed at least five miners each.

While administration supporters can point to a steady drop in the number of coal mining deaths through 2005, when a record low of twenty-two occurred, those numbers don’t tell the whole story. Fewer miners work today than a decade ago, and mine operators have shifted production to the largely mechanized and substantially safer strip-mining operations of Wyoming. Progress toward safer mines has lagged in places like West Virginia, where the death rate for miners has more than doubled since 1997 and increased by 50 percent in the last five years.

Chao’s promise to the families of Brookwood was not, as many probably assumed, a call for tighter rules and stricter enforcement. Instead, it was a signal for greater cooperation with mining companies. Under the Bush appointee Dave Lauriski, a former mining executive, the Mine Safety and Health Administration (MSHA) has stressed cooperating with mine operators over policing them. During his tenure, he filled the agency’s top jobs with former industry colleagues, dropped more than a dozen safety proposals initiated during the Clinton administration, and cut almost 200 of the agency’s 1,200 coal mine inspectors. Mine-safety experts have linked many of these actions to the causes of deadly mine accidents since 2001.

Under pressure from miners’ widows and their allies in Congress, President Bush signed a mine-safety bill last June. It provides for better-trained rescue teams, more oxygen supplies underground, and stiffer fines for safety violations. But for an industry that has lost more than 104,000 workers to accidental death since 1900—and continues to lose scores more every year—it will surely not be enough.

Accidents happen

There are a couple of versions of an old coalfield maxim. One says that mine-safety laws are written in the blood of miners; the other that dead miners make the best lobbyists. Both are true.

On January 27, 1891, 109 miners died in an explosion at the Mammoth mine in Mount Pleasant, Pennsylvania. At the time, it was one of the deadliest mining accidents in the nation’s history. A little more than a month later, Congress passed what it called “An Act for the protection of the lives of miners in the territories,” the first piece of federal legislation to address the dangers of mining. Though the law covered only mines in U.S. territories, it established minimum requirements for ventilating mines and prohibited operators from employing workers younger than twelve.

Over the next seventy-eight years, this pattern of disaster and legislative response gradually increased federal protections for miners, though the loss of life seemed disproportionate to the meager gains. In storied incidents like the 1947 explosion that killed 111 miners at the No. 5 mine in Centralia, Illinois, tens of thousands of miners died, but Congress reacted with little more than a new safety standard here, a nominal fine there. Then, on November 20, 1968, an explosion rocked the Consol No. 9 mine near Farmington, West Virginia. The blast was so powerful that it moved the chair on which a hotel clerk was sitting twelve miles away, in Fairmont. Seventy-eight coal miners died. Nineteen of their bodies were never recovered, entombed underground when the mine was sealed to suffocate raging fires.

The disaster prompted Congress to pass the Federal Coal Mine Health and Safety Act, and on December 30, 1969, President Nixon signed the bill. For the first time, Congress set strict standards for maintaining equipment and supplying fresh air to miners, required inspections of underground mines four times a year, and established mandatory fines for all violations. The landmark law did not stop deadly mining accidents—a year to the day after Nixon signed it, a coal mine explosion in Hyden, Kentucky, killed thirty-eight people—but its emphasis on enforcing safe practices led to steady improvement. The annual death toll dropped from 311 in 1968 to fewer than 100 in the early 1980s. By the early 1990s, when President Clinton took office, an average of only forty-five miners were dying on the job each year.

One step forward ...

In the Clinton administration, it became the job of J. Davitt McAteer, a native of Fairmont, to try to make coal mines even safer. McAteer was a first-year law student at West Virginia University when the Farmington mine blew up, and the disaster prompted him to organize a group of classmates to study coal mine safety in West Virginia. Their report helped persuade Congress to pass the 1969 Coal Mine Health and Safety Act, and was eventually published as a book, Coal Mine Health and Safety: The Case of West Virginia.

After graduation, McAteer worked with the consumer activist Ralph Nader on workplace-safety reforms and was running a small public-interest law firm, the Occupational Safety and Health Law Center, when Clinton selected him to head the Mine Safety and Health Administration. At his swearing-in ceremony in 1994, McAteer acknowledged the difficulty of keeping miners out of harm’s way. “The closer we get [to that goal], the harder it is,” he said. “But I think we can get closer.”

At first, McAteer’s optimism seemed justified. He ordered sweeping inspections that forced mine operators to repair faulty brakes on coal trucks, shore up the mine roofs, and address other widespread problems. He also pushed through a host of new health and safety rules, and organized training seminars for miners and operators.

But many of his efforts fell victim to opposition from various quarters. When he proposed national standards for training mine foremen and supervisors, industry executives and state regulators (who traditionally oversaw the licensing of foremen) shot them down. When he tried to impose new limits on coal dust in underground mines and take control of the industry-run dust-sampling program, the United Mine Workers—usually his ally—blocked the measures as inadequate.

It was the increasingly powerful Republican majority in Congress, though, that most often dashed his plans. For years, the mining industry had sought to reduce the quarterly inspections that the 1969 health and safety act required at all underground coal mines. Industry officials argued that only mines with poor safety records should be inspected. Rep. Cass Ballenger (R-N.C.)—a longtime ally of the industry—proposed not only to cut back the inspections, but to eliminate MSHA and fold its enforcement functions into the Occupational Safety and Health Administration, the Labor Department arm that polices most of the nation’s workplaces.

In arguing that the agency was irrelevant, Ballenger described a mining quarry in his district that had operated for ten years without significant injury to its workers. “That is a phenomenal safety record,” he said during a 1998 debate on his bill, “yet MSHA spends the same amount of time inspecting that quarry as it does any other surface mine in the country. To me that doesn’t make much sense.”

McAteer defended his agency by stressing how the unique dangers of mining required extraordinary vigilance. “Unlike most workplaces,” he testified during a hearing on Ballenger’s bill in 2000, “conditions in a coal mine can and do change daily, hourly, sometimes minute by minute. Miners must cope with massive machinery, confined spaces, explosives, potentially deadly gases, and quirks of geology that can be hard to predict at times.”

McAteer’s arguments led to the bill’s defeat, but his vigorous defense also provoked Ballenger and Rep. Peter Hoekstra (R-Mich.) to accuse him of improper lobbying. The two congressmen asked the Government Accountability Office to investigate whether McAteer had illegally directed agency officials to urge coal mining executives to call their representatives and argue against the bill. The GAO cleared McAteer of any wrongdoing, but the congressmen had sent the message that more aggressive enforcement of mine-safety rules would face substantial opposition.

Still, when McAteer left office at the end of the Clinton administration, MSHA could claim some success in having advanced mine safety. The number of coal mine deaths dropped from forty-seven in 1993 to an unprecedented low of twenty-nine in 1998, before increasing slightly in 1999 and 2000. More significant, there had been no mining disasters—defined as incidents involving at least five deaths—over the previous seven years. It was a record of protecting miners that would not last.

... Two steps back

Soon after President Bush took office, he appointed Dave Lauriski, a coal-industry veteran, as McAteer’s replacement. In contrast to McAteer, Lauriski had made his name in Washington as a staunch defender of mining companies rather than miners, and particularly of his employer, Emery Mining Corp. in Utah.

On December 19, 1984, a fire broke out deep inside the company’s Wilberg mine, near Orangeville, in the mining region south of Salt Lake City. At the time, the mine was trying to set a twenty-four-hour production record. Twenty-six men and one woman died. MSHA investigators blamed the fire on various safety violations. But Lauriski, a young mining engineer who was promoted to a top job for quickly getting the mine running after the accident, testified during a 1987 congressional hearing that “[i]mprovements in safety ... before the fire were impressive.” He later left the company to run his own mine-consulting firm.

After the deadly explosions at the Jim Walter mine in September 2001, Lauriski echoed his boss, Labor Secretary Chao, in publicly assuring the dead miners’ families that he would try “to prevent this type of accident from ever happening again.” But soon afterward, he ordered work stopped on more than a dozen new mine-safety regulations proposed by the Clinton administration. Some of these would have improved ventilation in underground mines, others would have deepened investigations of mining accidents, and still others would have required inflammable conveyor belts and more extensive training for miners. The proposed regulations were dropped, MSHA said, because of “resource constraints, and changing safety and health regulatory priorities.”
In speeches to mining-industry groups over the next few months, Lauriski further explained his thinking. He told the Georgia Mining Association that the agency had taken on too much under McAteer and needed to focus on just a few important items. He told the National Mining Association that MSHA would “collaborate more with stakeholders on regulatory initiatives” and become “less confrontational” with mine operators, in an effort to provide companies with better “compliance assistance.” At a meeting with mine operators in Hindman, Kentucky, he boasted about his diminutive regulatory agenda. “If you’ve seen it,” he said, “you noticed that it is quite a bit shorter than some past agendas. And if you haven’t seen it, all I can say is, trust me, it’s significantly shorter.”

In interviews, Lauriski noted that coal mining deaths nationwide had decreased dramatically, from hundreds every year to fewer than fifty. Further progress would come not from more inspections and fines, he explained, but from helping mine operators accept more responsibility for worker training and from teaching them how safer mines could be more profitable than dangerous ones. Jack Gerard, then the president of the National Mining Association, called Lauriski’s agenda “a bold and innovative approach to further advance miner safety and health.” That view was soon put to the test.

In the first two months of 2002, fifteen miners of coal and other minerals died in workplace accidents, three times the usual number of deaths for any two-month period. On July 24, miners near Somerset, Pennsylvania, accidentally drilled into a flooded abandoned mine next to where they were working. Millions of gallons of water spilled through the hole, trapping nine of the miners for three days. As the nation watched on television, Lauriski helped direct a dramatic rescue of all nine miners—and became a national hero.

But his luck did not hold. In January 2003, three workers at a CONSOL Energy mine in northern West Virginia failed to check properly for methane before lighting a cutting torch. The ensuing explosion killed all three. Investigators later determined that MSHA inspectors should have instructed the workers on proper procedures but had not inspected the mine because, according to one agency official, staff cuts had left no inspectors available. Six months later, one miner was killed and another seriously injured in an explosion at Cody Mining in Floyd County, Kentucky. Lauriski himself said that “unexcused deficiencies” by agency inspectors had played a role in the accident.

A week after the 2004 presidential election, Lauriski announced that he was leaving MSHA. He cited “personal circumstances” and said he was moving back west to “devote more time to my family.” Over the next ten months, Bush left the agency in the hands of the acting head, David Dye, a former congressional staffer with no experience in the mine-safety field.
It’s true that mining deaths—and the death rate per ton of coal mined—dropped during the Lauriski regime. But that’s in large part because most coal is now produced through surface mining in the Powder River Basin of Wyoming. Surface mines are generally much safer than underground operations. In addition, thanks to the growing use of underground mining machines over the past decade, the number of miners working underground—where the great majority of fatal accidents occur—dropped from 57,000 in 1996 to 49,000 today.

A broader look at the evidence suggests that underground coal mining has become substantially more dangerous in recent years. Over the past decade, the death rate per 10,000 miners in West Virginia, where a high proportion of miners continue to work underground, actually increased, from about 1.2 in 1997 to 3 in 2004, according to the state Office of Miners’ Health, Safety and Training. From 1999 to 2004, West Virginia
and Kentucky—where, again, mining is done belowground—accounted for about a quarter of the nation’s coal production but more than half of its mining deaths.

In addition, MSHA under Bush excludes certain types of deaths that previous administrations included. For example, MSHA did not count the death of an on-duty security guard who crashed his truck on a mining road owned by his employer. And many agency employees say current mine inspectors who also worked in the Clinton administration continue to enforce safety rules strictly, despite today’s more lax standards. “Things
do not change overnight,” said Lee Ratliff, a recently retired MSHA district manager, “for the good or for the worse. But I think it will get worse.”

Too little too late

In the early-morning hours of January 2, 2006, a severe thunderstorm sailed through Upshur County, West Virginia. Miner Terry Helms was “firebossing”—checking for safety problems—inside the Sago mine as other miners above him changed into their work clothes, checked their gear, and chatted.

At 6 a.m., two crews headed underground. About a half hour later, a section of the mine exploded. Helms died instantly. Twelve others were trapped. Before rescue workers reached them forty-one hours later, eleven had died, suffocated by carbon monoxide. Only Randal McCloy Jr. survived.

The Sago mine had been cited for 276 safety violations over the previous two years, but had paid only token fines—as little as $99 each for conditions that inspectors said were “significant and substantial” threats to the health and safety of miners. While investigators suspect that lightning triggered the explosion, questions remain about whether the mine’s owner, International Coal Group (ICG), as well as government inspectors, failed to take steps that could have prevented the
ensuing disaster.

The explosion occurred in an area where mining had stopped because of cave-ins. Following industry practice, the company had sealed off the area. But instead of building the seals with concrete blocks, ICG had used lightweight foam bricks because they were cheaper and easier to lift. The seals were not “explosion proof,” as the law required them to be, and so they failed to contain the blast and shield the miners from danger. Inspectors had examined the seals and approved them.

Still, the accident might not have proved fatal had the Bush administration not stood in the way of a number of efforts to improve mine safety. First, according to McCloy, at least four of the twelve trapped miners did not have working self-contained self-rescuers (SCSRs)—personal oxygen tanks worn on miners’ belts—to allow them to navigate the smoke-filled passages underground. One of the more than twelve mine-safety proposals that Lauriski blocked in December 2001 would have required mine operators to provide more and better SCSRs. Second, rescue operations at Sago were delayed because not enough rescue teams were available. Again, Lauriski had blocked a proposal requiring more teams to be on hand. Finally, the miners might have found their way out if their phone connection with rescuers had not been cut. But Lauriski’s agency had refused to require a readily available text-messaging device that would have allowed the miners to maintain contact.

Soon after the disaster, the widows of Sago and Jim Walter miners joined in demanding that Congress improve mining safety. Legislation sponsored by West Virginia’s congressional delegation was introduced in February but stalled until May 20, when five miners died in an accident at the Darby mine in Kentucky. On June 15, President Bush signed the Mine Improvement and New Emergency Response Act.

The law requires mine operators to supply miners with more oxygen underground and to create more and better-trained rescue teams, and it increases fines for certain safety violations. But these provisions are all versions of doing slightly more of the same—of “staying the course,” to use a phrase favored by the administration. What was needed, according to mine-safety experts, were rules that would prevent accidents in the first place, not just help miners escape once fires or explosions occur. Rules like strict limits on coal dust, a highly combustible material that has caused numerous deadly accidents and given miners black lung; or a ban on putting flammable conveyor belts in tunnels used to supply fresh air underground, because the belts can easily catch fire and spread flames and toxic gases toward miners, as occurred at the Aracoma mine earlier this year; or minimum penalties of $10,000 for each safety violation, an amount that would make mining companies pay attention.

Further evidence that Bush never intended to shift course emerged in late October, when he used a recess appointment to put former coal-company manager Richard Stickler into the MSHA job that Lauriski had vacated nearly two years before. Twice the Senate had sent Stickler’s nomination back to the White House, citing opposition by the United Mine Workers and a poor safety record at mining companies Stickler had run. Stickler has promised reforms, including tougher inspections and steeper fines. If he doesn’t deliver, the new Democratic Congress may force his replacement when the recess appointment expires at the end of 2007.

On the anniversary of the Jim Walter disaster, several hundred miners and their families gathered outside a small white church in Brookwood, Alabama. The church—the last building remaining from the original company town—sits next to the coal mounds towering above the No. 5 mine. A stone monument lists the names of the thirteen miners who died five years ago. Thirteen evergreen trees grow behind it.

Darryl Dewberry, vice president of Alabama’s United Mine Workers District 20, spoke to the crowd that day, evoking the horrible memories of September 23, 2001. His words are as appropriate today as they were then. “The legacy of Brookwood remains unfinished,” he said.

   

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Ken Ward Jr., a reporter at the Charleston (W. Va.) Gazette, spent six months in 2006 studying coal mine safety as an Alicia Patterson Fellow.  
 
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