Appalachian Citizens' Law Center

We Fight for Justice in the Coalfields

"Why Are They Not Being Punished?": A Legacy of Unaccountability in the Coalfields

Mine Safety

Last week a federal grand jury handed down a four-count criminal indictment against former coal company CEO Don Blankenship. In an editorial, the Lexington Herald-Leader writes, “Justice is being served in the preventable disaster that killed 29 coal miners at Massey Energy’s Upper Big Branch mine in West Virginia in 2010, thanks to the determined efforts of U.S. Attorney Booth Goodwin and his assistant Steven Ruby.”
The indictment is extraordinary because of how infrequently mine operators are held accountable for mine safety violations. For example, take a look at the recent National Public Radio/Mine Safety and Health News multi-part investigation into delinquent operators of U.S. coal mines. Among the report’s top findings:

  • 2,700 mining company owners failed to pay nearly $70 million in delinquent penalties.
  • The top nine delinquents owe more than $1 million each.
  • Mines that don’t pay their penalties are more dangerous than mines that do, with injury rates 50 percent higher.
  • Delinquent mines reported close to 4,000 injuries in the years they failed to pay, including accidents that killed 25 workers and left 58 others with permanent disabilities.
  • Delinquent mines continued to violate the law, with more than 130,000 violations, while they failed to pay mine safety fines.

NPR’s Howard Berkes examines the conditions that led up to the Kentucky Darby mine explosion that killed five miners in 2006. Darby’s co-owner and legally responsible corporate official, Ralph Napier Jr., and several of his partners still have not paid the $500,000 in penalties for the disaster. Napier controls eight other mines that have $2.4 million in delinquent fines.
Berkes interviewed Mary Middleton, widow to Roy Middleton, who was tragically killed at Darby.

“It’s like they died in vain, like their life didn’t matter,” Mary Middleton said.
 
“You get a speeding ticket … and you don’t pay and they’ll want to put you in jail,” Middleton added. “But this man — it’s people’s lives and injuries, and then they just keep letting him keep doing it and doing it.”
 
“Where’s the breaking point? “I know the Bible says vengeance is God’s, he will repay. But you think, ‘Why are they not being punished?'”

Citing the NPR investigation, the Louisville Courier-Journal points out that the state of Kentucky is responsible for the worst offenders of mine delinquency.

In 2012, Kentucky coal operators owed nearly $30 million to the federal government in uncollected fines for violations, some that resulted in death or disabling injury of miners, The Courier-Journal’s James R. Carroll reported. That’s 40 percent of the $73 million owed nationwide in 2012.

Berkes also spoke with Joe Main, head of the Mine Safety and Health Administration, who maintains that the agency lacks the authority to shut down delinquent coal mines. This is outrageous and highly unfortunate, because, as MSHA’s data shows, delinquent mines are more at risk of fatalities and injuries.
These troubling trends are not unique to mine safety. Indeed, violations which fail to result in fines will also not deter mines that break environmental protection regulations. This week environmental groups notified the Environmental Protection Agency and the Kentucky Division of Water that they intended to sue Frasure Creek Mining LLC, a Kentucky coal company, for violations of the Clean Water Act. The groups discovered that Frasure Creek had resumed submitting false discharge monitoring reports on the wastewater it discharges from mine sites. The Kentucky Energy and Environment Cabinet, which is responsible for enforcing the Clean Water Act in Kentucky, appears to have failed to notice that Frasure Creek discharge monitoring reports contained identical data from quarter to quarter.
This is even more infuriating considering that Frasure Creek was caught doing the exact same thing back in 2010. At that time, Kentucky state regulators sought enforcement only after environmental groups exposed Frasure Creek’s violations. Environmental groups intervened in the state’s enforcement, arguing that it was too lenient and would not deter Frasure Creek–or other companies–from future violations. With these new false reporting violations, it seems the environmental groups were correct. If the regulatory agency doesn’t enforce the law by assessing fines, the bad actors will get away with whatever they can.
Enacting legislation that would give the Mine Safety and Health Administration the authority to force mines to close six months after they fail to pay delinquent fines, and actually enforcing the Clean Water Act, could hold accountable the mine operators who violate state and federal regulations. However, as the Courier-Journal points out, “Denouncing the “war on coal” is more important than cracking down on scofflaw operators.” For now, we have to hope that the indictment of Blankenship will send a clear message to mine operators that sacrificing life and limb for profit has consequences.