An Enduring Memorial for Slaughtered Miners: Criminal Liability for Reckless Owners

The catastrophe at Upper Big Branch that killed 29 miners evokes the disaster at Westray that killed 26 almost exactly 18 years earlier.

As at Upper Big Branch, a coal dust and methane explosion ripped through the Westray mine in Plymouth, Nova Scotia early in the morning. As at Upper Big Branch, rescuers discovered bodies, but toxic air forced them out before they could account for all missing miners. After five days, dangerous conditions permanently ended the search for the missing 11 at Westray. They're entombed in the hazardous workplace that took their lives, a mine like Upper Big Branch that had been cited for dust and methane violations.

Nova Scotia erected a memorial over the spot where the bodies of the 11 are believed to be, with plaques bearing the names of the miners killed. West Virginia no doubt will commemorate those killed at Massey Energy's Upper Big Branch.

But Canada did something more. It criminalized corporate disregard for worker safety. It's called the Westray Law.

America needs its own such statute - an Upper Big Branch Law - holding corporate managers and directors criminally accountable for ditching safety for dollars.

Fines and lawsuit settlements have proved ineffective in forcing the likes of Massey to reform. For example, In December of 2008, Massey paid $4.2 million in criminal fines and civil penalties because it had removed ventilation controls in its Aracoma mine, contributing to the deaths of two miners there on Jan. 19, 2006. To put the effect of that punishment in perspective, in that same year Massey paid its CEO, Don Blankenship, a salary more than twice that amount -- $11.2 million.

In the 12 months after the $4.2 million admonishment, Massey racked up twice as many violations at Upper Big Branch as it had in 2008. The violations included explosive coal dust and methane build-ups, and they were so serious that the Mine Safety and Health Administration (MSHA) designated Upper Big Branch in August of 2009 as a mine requiring increased scrutiny by inspectors. But it escaped those extra examinations because it appealed so many of its citations, according to U.S. Rep. George Miller, a California congressman who has worked for years to improve mine safety.

Just three days before the Upper Big Branch catastrophe, an explosion at the Tesoro refinery in Anacortes, Wash. killed six workers and severely burned a seventh. Like Massey, Tesoro had paid fines that proved ineffective in creating safe working conditions. Last year, Tesoro shelled out $12,500 for violations that included the most serious transgressions -- those with the potential to cause serious injury or death.

As it stands in America now, the captains of corporations believe the most important issue from industry is greenbacks. Blankenship made that clear to his managers in an October, 2005 memo commanding that they "run" or produce coal to the exclusion of everything else:

If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e. -- build overcasts, do construction jobs, or whatever) you need to ignore them and run coal. This memo is necessary only because we seem not to understand that coal pays the bills.

Blankenship also despises regulators and regulation, publicly deriding MSHA inspectors, declaring at a Labor Day rally last year:

"I also know Washington and state politicians have no idea how to improve miner safety. The very idea that they care more about coal-miner safety than we do is as silly as global warming.

Similarly, he condemns regulation and environmental activists on his Twitter account, a Bloomberg story noted.

At a July 11, 2008, deposition in a lawsuit over the two deaths at the Aracoma mine, Blankenship responded to accusations that he had a "personal drive for increasing company profits at all costs, including the safety of subsidiaries' associates."

Blankenship denied it:

As an accountant, I know that safety is an important cost control. So even if I were so calloused, which I am not, as to believe that safety should be sacrificed for production, I would understand that it doesn't make any sense because the accidents and so forth cause you to have more costs.

It's about the costs - not about causing heartache, widows and fatherless children.

The same was true at the Westray mine.

Nova Scotia empanelled a commission to investigate the Westray Mine catastrophe, and it issued a report in November, 1997 entitled, The Westray Story: A Predictable Path to Disaster. Repeatedly it condemns mine owner, Curragh Resources Inc., for elevating production over safety:

Indeed, management at Westray displayed a certain disdain for safety and appeared to regard safety-conscious workers as wimps in the organization.

The report says the mine blew up because mangers failed to keep workers safe, even if regulators' actions were inadequate:

The fundamental and basic responsibility for the safe operation of an underground coal mine, and indeed of any industrial undertaking, rests clearly with management ... Westray management, starting with the chief executive officer, was required by law, by good business practice, and by good conscience to design and operate the Westray mine safely. Westray management failed in this primary responsibility, and the significance of that failure cannot be mitigated or diluted simply because others were derelict in their responsibility.

The commission also wrote that the mine managers defied coal regulations:

Much has been said throughout this Inquiry about the inadequacy of the Coal Mines Regulation Act. As outdated and archaic as the present act is, it is painfully clear that this disaster would not have occurred if there had been compliance with the act.

Violations included managers allowing dangerous coal dust and methane to collect:

There is no question that management was aware that coal-dust accumulations underground at Westray were at hazardous levels ... There is no question that management knew that the levels of methane underground at Westray were hazardous.

And the report gets right to the point about why managers defied regulations: It was all about pushing production to increase profit. The report says:

Management avoided any safety ethic and apparently did so out of concern for production imperatives ... Methane detection equipment at Westray was illegally foiled in the interests of production.

Prosecutors criminally charged Westray mine managers, but the case failed. In response, the United Steelworkers, who were certified to represent the Westray miners after the explosion, began pressing for a new law that would make it easier for prosecutors to hold managers criminally accountable for recklessly endangering workers.

It took a decade and several attempts, but in 2003 Parliament passed the Westray bill unanimously. It imposes a duty on corporations to take reasonable steps to prevent bodily harm to workers. Managers found guilty in workplace deaths face unlimited fines and life sentences.

Since the law took effect in 2004 in Canada, thousands of workers have been killed on the job, but prosecutors have used the Westray Act to press charges against managers fewer than a half dozen times. It has hardly been abused.

In an economic climate that prizes profits over life, the law provides a vehicle to punish the reckless and provoke safety by the callous. In Canada, it sets priorities. People first, profits second. It is political enactment of what nineteenth century French inspector general of mines Frederick Le Play said: "The most important thing to come out of a mine is the miner."

Just one week after the Upper Big Branch disaster, S&P Equity Research upgraded its evaluation of Massey stock from hold to buy. S&P explained:

We believe that the financial impact of the Upper Big Branch mine tragedy to Massey Energy will be immaterial.

The deaths of 29 miners will be "immaterial" to Massey's bottom line. America needs an Upper Big Branch Law to make the lives of all workers matter to their employers.