The West Virginia Mining Disaster: A Matter of Workplace Safety

Michael Lipsky worked at the Ford Foundation in 1965 and again in 1991 to 2003 in Governance and Public Policy. by Michael Lipsky Twenty nine people died in the Upper Big Branch coal mine last Monday. As the story shifts from the rescue operation to settling on the cause of the fatal explosion, for the moment coal mine safety has the public's attention. But we run the risk that it will be treated like the story of the girl who fell down the well, wedged in but for a time still alive--of great human interest but soon to pass from view as attention is absorbed by something else. Mining is a notoriously unsafe occupation. The Upper Big Branch mine where the deaths occurred recorded 48 serious safety violations in 2009 and 10 so far this year. Since the beginning of 2009 parts of the mine have had to be evacuated 64 times. However, it is possible to run coal mines relatively safely, while remaining economically competitive. A large mine in Utah had only one such violation over the past 15 years, and a mine in Alabama with three times as many workers underground had only two such violations. The critical safety requirement is to monitor every part of the mine for the buildup of potentially explosive methane gas and coal dust. As a result of improved technology and productivity changes that have reduced the national mining workforce, coal mine fatalities last year declined to 18, a number smaller than the fatalities at Upper Big Branch this week. There will never be risk-free underground mining, but there can be mining that operates consistently on the highest safety standards. No less an interested party than Cecil Roberts, President of the United Mine Workers of America, agrees: “Mine safety laws and regulations have progressed to the point where, when followed and properly enforced, they should prevent disasters like this one at Upper Big Branch from happening.” Coal mining is safer than it was in the past, and it is safer in union mines than in non-union mines. In union mines workers may be more willing to walk out if conditions are unsafe, and unions are prepared to invest their own resources to make sure conditions underground are acceptable. Like other industrial workforces, union mining as a proportion of all mining has declined in recent years. Massey mines--no surprise--are non-union. There is a temptation to buy into the headlines of the moment and conceptualize the struggle for safety in the mines as a problem of the coal companies versus the miners. The Massey Company defends its safety record, and industry spokesmen remind us that we depend on coal in the United States to keep the lights on. We need to resist this simplification and recognize the current crisis as a test of our capacity as a nation to protect people who cannot be expected to protect themselves from severe risk. Of the many places where public protections have been put into place in the last century--food production, environmental conservation, building codes, consumer products, etc.--a special place must be reserved for workplace safety. This is because workers as individuals have very little power relative to employers. People need jobs and, as long experience has shown, will work in unsafe conditions if the alternative is to be jobless. When unions are weak or under attack and cannot use collective action to force or negotiate concessions from employers, when jobs are scarce and unevenly distributed across the landscape, people are willing to put themselves in jeopardy. The world over, people one by one will not insist on workplace safety if the alternative is no livelihood. It is a reasonably settled matter that a democratic and prosperous society can and should insist on safe working conditions. Indeed, despite impressions to the contrary reflecting the fact that so many people died in the mine this week, Americans have been engaged over the last decades to make mining safer. In the past five years mining regulations have been strengthened and the inspection workforce has increased, although more needs to be done. The 40 year old Mine Safety and Health Administration remains weak. Stronger approaches to mine safety, as encompassed by legislation passed by the House of Representatives in 2007, would have provided greater enforcement powers. (The Bush Administration opposed the bill, which died in the Senate in that year.) Conditions that lead to the slow death of black lung disease were substantially arrested and incidence of the condition declined substantially after Federal legislation was passed in 1969. It is again on the rise, for reasons that are debated. In short, mine safety regulation remains contested, but American consideration of mine safety has not been dormant. There is something cinematic about the emerging portrait of Massey Energy, the parent company of the Upper Big Branch mine. For one thing, in terms of safety the company is a bad actor. Massey has consistently ranked below average in the industry on measures of workplace safety. Three miners died at Upper Big Branch only 12 years ago. The mine has a worse than average record in recent years according the standard statistic used to measure such things--time lost on the job due to work-site accidents. Moreover, Massey Energy fits the portrait of an enterprise that views safety regulations as strategic hurdles to overcome, rather than as signals to help insure safety on the job. Accounts have emerged that indicate the company sometimes continued to operate while remedying hazardous conditions, instead of suspending operations while the remedial work was done. The company has challenged at least $1.3 million in penalties since 1995. It is still contesting 352 alleged violations, some dating from 2007. Contesting serious violations means that the company has a better official safety profile than would otherwise be the case. Without being able to establish on the official record a pattern of severe violations--a designation that could 'trigger' higher sanctions--the MSHA has declined to order the forced suspension of operations which might have saved lives. The unapologetic face of Massey Energy, its chief executive Don Blankenship, is well-known not only for defending the company's safety record but also for opposing public initiatives to improve mine safety. He has been a major force in West Virginia politics. He has used his resources to try to change the composition of the legislature to Republican control, and is perhaps most famous for virtually buying a seat on the state Supreme Court by successfully bankrolling a challenger to a sitting judge who was known to disagree with his views. He is outspoken in asserting that worker safety rules stifle business interests. The way forward does not seem difficult to project. Rigorous enforcement of existing safety standards is called for, with particular attention to mines with histories of consistent violations. The standards that trigger these violations--for example, more than two percent methane concentration--are not ambiguous. With modern equipment properly placed, anyone--worker or mine operator--should be able to tell when a facility is unsafe, needs to be evacuated, and engineered to return to compliance. Consistent violators should be required to suspend operations until violations are remedied. The failed 2007 mine safety legislation called for an ombudsman for mine safety, so that workers who worry that they are being exposed to unsafe conditions would have an outlet that did not expose them to retaliation. That idea should be revived. The office of ombudsman might develop innovative ways to inform the public about safety in the industry. For example, with proper authority it could be authorized to require public utilities to report on the safety records of the companies from which it buys coal. Certification issues abound in such a proposal, just as they do in determining 'fair trade coffee' and 'organic produce.' Nonetheless, such initiatives keep the issue of the conditions of production in front of the consumer. In the absence of public awareness and ongoing, engaged concern, regulatory protections over time tend to be undermined, and investment in their enforcement allowed to fall short of what's needed. This is why, ultimately, the issue comes down to whether the West Virginia miners, when all the publicity has died down, will be treated as a small segment of an unsafe industry in a backward part of the country that most people haven't thought about since John Denver died. Or whether they will be regarded as members of a valued fragment of our American workforce who need and deserve the protections at work that are their birthright. As a society we know how to protect people from hazards they can't protect themselves from. We establish building codes for schools, businesses and public places. We take unsafe vehicles off the road and keep unsafe airplanes out of the sky. These and so many of our regulatory laws, often hard-won and resisted at first by business interests, involve tradeoffs between economic concerns and the needs of public safety. Miners' advocates should be willing to embrace a debate over whether infinitesimally higher prices for electricity are an acceptable tradeoff for greater safety.