CHARLESTON, W.Va. -- Parts or all of Massey Energy's Upper Big Branch Mine were ordered closed more than 60 times in 2009 and 2010, and the mine was repeatedly cited in recent months for allowing potentially explosive coal dust to accumulate, according to newly released government documents.
But despite what regulators concede were serious and growing problems, the U.S. Mine Safety and Health Administration never took stepped-up action to cite the Upper Big Branch Mine for a "pattern of violations," according to the documents.
Mine safety advocates this week were outraged at the results: A massive explosion Monday afternoon that left at least 25 miners dead in the worst U.S. coal mining disaster in a quarter century.
"We are not talking about parking tickets here," said Pat McGinley, a West Virginia University law professor and coal industry expert. "When a mine's ventilation system isn't working properly or there is an unacceptable accumulation of coal dust even for an hour, miners lives are put at risk."
Massey Energy CEO Don Blankenship has defended his company and the Upper Big Branch Mine, saying "Any suspicion that the mine was improperly operated or illegally operated or anything like that would be unfounded."
And on Thursday, MSHA officials began to defend their agency's performance. MSHA distributed talking points to congressional representatives. Top agency deputy Greg Wagner called the Gazette to respond after the paper posted an online story about the large number of withdrawal orders at the Upper Big Branch Mine, and MSHA's failure to step up enforcement with a "pattern of violations" order against the mine.
"We issued citations for every hazard we identified," Wagner said. "We held the operator accountable for correcting the problems that were cited.
"The problem we continue to have is that MSHA isn't responsible for the <t40>...<t$> we can't be in the mine all the time in every place in the mine," Wagner said. "The mine operator under the act has responsibility to maintain an environment free of recognized hazards."
Wagner was upset with a story that detailed a report prepared this week for Sen. Robert C. Byrd, D-W.Va., in which MSHA officials revealed that they had issued 54 withdrawal orders to the mine in 2009 and another seven such orders so far in 2010.
"That's way off the charts," said Tony Oppegard, a former MSHA staffer and longtime mine safety lawyer in Kentucky. "I've never heard of that amount of withdrawal orders in that short of a period of time."
Under federal law, MSHA generally does not have broad authority to simply close a troubled coal mine, unless it seeks a federal court injunction to stop anything its inspectors believe "constitutes a continuing hazard to the health and safety of miners."
But, on its own authority and without going to court, MSHA can issue what the law calls "withdrawal orders" that force all miners to be removed from areas until significant hazards are eliminated.
In the case of the Upper Big Branch Mine, most of the withdrawal orders -- 48 in 2009 and six during the first three months of this year -- were issued when inspectors found Massey subsidiary Performance Coal exhibited an "unwarrantable failure" to comply with federal health and safety standards.
One of the most series withdrawal orders was issued in December 2009 under a section of federal law that allows inspectors to respond to "imminent danger" that "could reasonably be expected to cause death or serious physical harm."
The withdrawal orders likely covered only portions of the sprawling Raleigh County mine, but the MSHA document does not specify that. The document does not detail the exact violations that led to the withdrawal orders, how long the closures lasted or how promptly Massey fixed the cited problems.
But the withdrawals did include four orders in 2009 and one so far this year where inspectors took action because of Massey's "failure to abate" previously issued problems.
The MSHA document indicates that the Upper Big Branch Mine qualified in November 2007 for being cited for a "pattern of violations," which would result in withdrawal orders for all subsequent serious violations until the mine has a full inspection with no serious citations.
MSHA issued a warning letter to the company in December 2007, advising Massey that it was in danger of being cited for a violation pattern.
Under federal law, operators must be cited and enforcement escalated if an operator "has a pattern of violations of mandatory health or safety standards <t40>...<t$> which are of such nature as could have significantly and substantially contributed to the cause and effect of coal" health and safety hazards.
But, according to the document prepared for Byrd, MSHA let the company avoid that because it "successfully reduced its rate" of serious violations.
MSHA also reviewed the Upper Big Branch Mine for a potential pattern of violations in October 2009 and concluded the company did not meet the criteria for such a designation.
In a phone interview, Wagner was not able to explain that decision.