Massey CEO defends safety record in first Capitol Hill grilling since accident

Massey Energy CEO Don Blankenship on Thursday denied placing profits above safety as he faced his first Capitol Hill hearing since last month’s explosion at the coal giant’s Upper Big Branch mine in West Virginia that killed 29 workers.

“We never have, and we never will,” states his testimony submitted to a panel of the Senate Appropriations Committee.

“From the day I became a member of Massey’s leadership team 20 years ago, I have made safety my number one priority,” Blankenship states in remarks prepared for the hearing, which is about federal resources needed to improve mine safety.

{mosads}But the top federal mine safety official highlighted a history of problems at the Upper Big Branch mine, and vowed to investigate claims that workers at the mine who reported hazards to the company or regulators risked losing their jobs.

Assistant Secretary of Labor for Mine Safety and Health Joseph Main, in his prepared testimony, stated that federal safety citations issued at the mine “have not only been more numerous than average, they have also been more serious.”

Main said that in recent years the Mine Safety and Health Administration (MSHA) had found an increasing number of “significant and substantial” violations.

In particular, he noted the number of so-called withdrawal orders for repeated actions that violate safety and health rules, noting the mine’s rate for such violations was 19 times the national average last year.

Blankenship nonetheless defended his company’s overall safety record as among the industry’s best, even as he acknowledged the mine received 47 serious safety citations during a seven-month period in 2009.

Although he noted that federal regulators issued 47 “D” orders, the most serious safety violation, at the Upper Big Branch mine between April and October 2009, he said the company responded by forming a special committee to address the problems. The number of violations was reduced by 80 percent, he said.

An MSHA inspection completed days prior to the April 5 blast found the mine to be in “good condition,” Blankenship said.

Other witnesses, however, also accused Massey’s management of being lax in ensuring the safety of its mine. The Senate Appropriations Labor, Health, and Human Services, Education and Related Agencies Subcommittee held the hearing Thursday afternoon.

Cecil Roberts, president of the United Mine Workers of America, said in prepared testimony that the number of citations issued at the Upper Big Branch mine “far exceed industry norms.”

In total, the mine received 515 citations in 2009 and 124 so far this year. Roberts said 39 percent of the citations issued in 2009 were for violations that can contribute to mine fires, explosions and the “deaths of coal miners.”

One topic receiving scrutiny on Capitol Hill is the rising backlog of appeals companies have sought to challenge MSHA citations.

In his testimony, Blankenship described Massey’s relationship with its chief regulator as sometimes contentious, and seemed to suggest that a change MSHA required to the ventilation system at the Upper Big Branch mine could have contributed to the blast.

Blankenship said Massey appealed “many” of the citations it has received, but indicated the number gives a distorted view of the company’s commitment to safety. He said federal law requires that the problem be fixed before the equipment or area of the mine in question can operate again.

“We do appeal many of the citations, not to avoid correcting a problem, but because we disagree with the inspector’s judgment or because we believe that a proposed penalty is unfair,” Blankenship said.

Massey’s rate of appeals is “consistent” with the industry average, and final penalties imposed are nearly 40 percent lower than what MSHA proposed, a “sure sign that our appeals are not frivolous,” according to Blankenship.

As he defended his company’s safety record, Blankenship also sought to pressure MSHA to open its investigation of the blast to the public, and his written testimony at times underscored an often contentious nature of the relationship between the agency and Massey.

He noted a disagreement between Massey engineers and MSHA regulators over an order to change the mine’s ventilation system. Blankenship said Massey employees feared the changes could bring less fresh air into the mine, a serious safety hazard, but made the required fixes at MSHA’s insistence.

He indicated that the changes may have played a role in the accident.

“We do not know whether the ventilation system played a role in the explosion, and we do not know whether the modifications to that system demanded by MSHA played a role in the explosion,” Blankenship said.

A build-up of methane gas is thought to have been a leading factor in the deadly blast. Mine companies are required to shut down operations if methane levels reach a certain point.

Blankenship called on MSHA to open its investigation to the public. “We do not think that MSHA should be able to investigate itself behind closed doors,” he told the committee.

Main, in his prepared testimony, detailed various mine safety reforms that the Obama administration is seeking.

They include enhanced whistleblower protections and changes to the process for placing mines in a “pattern of violations” status, which companies often avoid by contesting large numbers of citations. Establishing such a pattern enables regulators to take tougher steps to require that mine operators improve unsafe conditions.

While Main noted the administration is pursuing some reforms under its existing powers, he also called on Congress to act.

“We look forward to working with Congress to change the incentives for mine operators to contest violations, such as requiring mine operators to put significant penalty amounts in escrow or to impose pre-judgment interest on penalties,” his prepared testimony states.

Main also said more resources are needed to reduce the backlog of cases for appealed violations.

Main noted that as of May 5, there were roughly 16,000 cases representing 89,000 violations before the Federal Mine Safety and Health Review Commission, and that the average case takes more than 600 days to resolve from the time a violation is issued.

In addition, Main said that regulators need “flexibility to ratchet up the power of our enforcement tools when we are dealing with the worst of the worst.”

“Stronger civil and criminal penalties are needed to make sure that mine operators are not allowed to knowingly or persistently put the lives of miners at risk. These penalties should extend to individuals at all levels of management who make decisions about the safety of miners,” he said.