Whistleblower should not be punished in Kentucky mine safety-violations case, state panel rules

Lexington Herald-Leader, March 14. 2013
by Bill Estep
A state panel decided Thursday not to punish a Harlan County coal miner who provided information on safety violations at an underground mine that led to federal criminal convictions against the company and three supervisors.
 
Attorneys for Mackie Bailey had said it was not fair for the state to seek to penalize Bailey when he was the one who blew the whistle on the violations.
 
Bailey, 41, said he felt vindicated by Thursday’s decision.
 
“It turned out real good,” Bailey said. “You shouldn’t punish somebody for trying to do the right thing.”
 
Bailey worked at the Manalapan Mining Co.’s P-1 mine near Pathfork, in Harlan County, in the first half of 2011.
 
Bailey operated a machine that installed bolts in the mine roof to keep it from falling. The machine has a bar that the operator is supposed to place against the roof of the mine as a temporary support to prevent roof falls while installing the permanent bolts.
 
As employees advanced the mine into the mountain in June 2011, however, they hit a spot where the roof rose so high that the temporary support bar wouldn’t reach it, according to Bailey and court records. That meant the miners using the machine were exposed to unsupported sections of rock, a serious violation that can lead to deadly roof falls.
 
Bailey said he told supervisors about the problem but was directed to keep working. One supervisor threatened to fire him in late June 2011 when he refused to bolt a section of the mine, Bailey said. The next day, David Partin, 49, of Pineville, was killed when a section of rock nearly 7 feet long and 3 feet wide collapsed on him at the mine, according to a federal investigation.
 
Through his attorney, Tony Oppegard, Bailey then reported the problem with the roof-bolting machine to Tracy Stumbo, chief accident investigator for the Kentucky Office of Mine Safety and Licensing.
 
Bailey said he had not reported problems to authorities earlier for fear of losing his job. Federal prosecutors ultimately took over the case.
 
A federal grand jury indicted mine foreman Bryant Massingale; superintendent Joseph Miniard; operations manager Jefferson Davis; and Manalapan on charges of violating safety rules. All pleaded guilty and are awaiting sentencing.
 
The state Office of Mine Safety and Licensing charged Bailey with taking part in a violation he reported; he was charged along with the four men charged in federal court and other Manalapan employees. The office sought to place Bailey’s miner certification on probation for a year, but he contested that.
 
The three-member Mine Safety Review Commission heard the case Thursday.
 
Stumbo, the state’s investigator, testified that he would not have known about the violation if Bailey had not disclosed it, and that he did not think Bailey should be punished, Oppegard said.
 
And Assistant U.S. Attorney Patrick H. Molloy testified that Bailey was a key witness in the federal prosecution of Manalapan and its supervisors, said Oppegard, who represented Bailey with Wes Addington of the Appalachian Citizens’ Law Center.
 
Oppegard said he argued that penalizing Bailey would discourage other miners from reporting safety problems, when the state should instead be encouraging miners to come forward.
 
The review commission ruled that Bailey committed a violation — which he did not contest — but that there would be no penalty, Oppegard said. Bailey said the panel also commended him for what he did.