The Good, the Bad, and the Ugly – A Personal Reflection on Thirty Years of Mine Safety and Health Regulation in the U.S.A.; and a Look Ahead to the Twenty-first Century
September 28, 1998
Author: Edward M. Green.
This paper examines thirty years of mine safety and health regulation in the United States from the perspective of the author, who has been both a federal regulator and a long-time representative of the U.S. mining industry in Washington, D.C. Reasons for the development of federal mine safety and health laws are discussed. The author then turns to the future, providing recommendations for improvement in mine safety and health which have application in the U.S. as well as any other mining nation around the globe.
Shortly after the turn of the century, the American philosopher and poet, George Santayanna wrote: "Those who cannot remember the past are condemned to repeat it." As we reach the end of this century and contemplate the imminent arrival of a new millennium, it is a good time to reflect briefly on the past as we consider the future.
First let me thank Pat Gilroy and Mike Gouws for inviting me to speak to you today about the mine safety and health experience in the United States. I believe my experience with this topic is rather unique. Why? Probably because I’m the only lawyer in the U.S. who has been both a federal mine safety and health regulator as well as a long-time representative of the U.S. mining industry in Washington, D.C. Thus, my perspectives are "from both sides of the fence."
In what some of my industry friends call my "misspent youth," I began working in the field of mine safety and health in 1970 shortly after enactment of a truly revolutionary law called the Federal Coal Mine Health and Safety Act of 1969. Although I was a very young junior attorney in the U.S. Department of the Interior’s Office of the Solicitor at the time, nevertheless I was quickly thrown into the breach to assist our Bureau of Mines in the drafting of mandatory coal mine health and safety standards and other regulations to implement the new 1969 Act, many of which are still on the books today.
Beginning in 1973, for almost a three-year hiatus, I served a tour of duty as counsel for surface coal mining reclamation to the Secretary of the Interior. But in early 1976, I returned to the mine safety and health arena when the Administrator of the Mining Enforcement and Safety Administration ("MESA") asked me to serve as his assistant. MESA had been carved out of the Bureau of Mines in 1973 (as a separate agency within the Interior Department) in response to accusations by organized labor and some members of Congress that an inherent conflict of interest between mineral production and the safety and health of miners existed in the Bureau of Mines.
In 1977, I left the employ of government and went to work for the American Mining Congress where, over the next 16 years, I became the association’s general counsel and secretary. Finally, in 1993 I joined the Washington, D.C., law firm of Crowell & Moring LLP where a number of us are honored to participate in one of the leading mine safety, health and environmental regulatory law practices in America. Thus, since 1970, much of my public and private sector career has been devoted to mine safety and health law and policy.
I share this summary of what could be called a "chequered" career because the rest of my presentation is based on personal experiences which have always been interesting to me – oftentimes exhilarating – and, on occasion, somewhat dangerous. With apologies to Clint Eastwood, I’ve seen and been a part of "The Good, the Bad, and the Ugly" in the area of mine safety and health in the U.S. for the past 30 years.
3. THE FORMATIVE YEARS
The story of modern mine safety and health law in the United States began on November 20, 1968, when a methane explosion at Consolidation Coal Company’s No. 9 mine in Farmington, West Virginia, killed 78 men. Their bodies were never recovered – the mine was sealed several days after the explosion – and they remain entombed to this day.
This disaster resulted in an extraordinary outpouring of public sentiment for new and tougher federal regulation of coal mine health and safety, and on December 3, 1969 (after overwhelming votes of support in the U.S. Senate and House of Representatives), the new legislation was signed into law by President Richard Nixon. As one of the primary authors of the new law, U.S. Senator Jacob Javits of New York wryly noted: "Dead miners have always been the most powerful influence in securing passage of mining legislation."
The methane explosion at Consol’s No. 9 Mine, however, was not the only impetus for the new law. Public awareness also focused on the ravages of coal workers’ pneumoconiosis, a "dreadful disease [which] cause[d] many years of breathlessness and ultimately, death," and which "afflicted 100,000 of the Nation’s active and retired coal miners."
These events were part of a highly intense chapter of the American experience -- our searingly divisive involvement in Vietnam and the civil rights struggles of African-Americans, especially in our southern states and a number of big cities, including Washington, D.C. itself. In a time of dramatic civil unrest and questioning of American institutions, Secretary of the Interior Stewart Udall perhaps expressed it best when he said in December, 1968, as he convened a national conference on mine safety and health:
The tragedy that occurred at Farmington, W.Va., last month is the catalyst that has brought us together. What we say and do here, however, must be in a larger context than that of a coal mine disaster. Our deliberations must embrace all of the measures and all of the responsibilities that have to be adopted and assumed if we hope ever to banish death and disease from our coal mines. And this we must do. For let me assure you, the people of this country no longer will accept the disgraceful health and safety record that has characterized this major industry.
At that same conference, Consolidation Coal Company president John Corcoran endorsed Secretary Udall’s statement, saying:
There can be no question that the health and safety of employees in the coal mining industry must be given the first priority. On humanitarian grounds alone this should be self-evident. If this is not enough, enlightened self-interest will lead us to the same inescapable conclusion. Our trained and experienced employees constitute our most valuable resource, and the protection of their health and safety is an absolute prerequisite to the successful and continued operation of our business. . . . In the regulatory area, we favor and will support any meaningful and constructive changes in laws and regulations that will improve coal mine safety.
It’s interesting to reflect (30 years later) on how close were the views of Messrs. Udall and Corcoran.
What did the new Act do? It required compliance with detailed safety and health standards and mandated frequent federal inspections of coal mines to enforce them. Upon finding a violative condition in a coal mine, federal inspectors were required to issue a notice of violation or, in appropriate circumstances, an order of withdrawal. Orders of withdrawal were also authorized for imminently dangerous conditions, failure to correct a violation, and to remedy any violation caused by the unwarrantable failure of an operator to comply with the Act. Civil penalties of up to $10,000 per violation were mandatory, and criminal sanctions were in the new law too. To encourage their participation in maintaining safe and healthful working conditions, miners were given specific rights; discrimination against miners for exercising those rights was prohibited and punishable by civil penalty. The 1969 Act also provided compensation from a special trust fund financed by a fee on coal production for miners suffering from pneumoconiosis.
So the Bureau of Mines coal mine safety and health experts and their lawyers had their hands full. Looking back on those days, the fact that I had never been underground or seen anything other than pictures of mines until well into my first year at work seemed no impediment at the time. Even though I was going through on-the-job training, the Bureau experts, many of whom were world-class, knew what they were about. In our meetings, they talked about ventilation, roof control, fire prevention, rock dust, permissible electric face equipment, respirable coal dust and all other sorts of topics then mysterious and exotic to me. My job was to listen to their discussions, review their drafts and turn it all into regulatory language.
One of the nicest compliments I ever received was given to me in those days by the Bureau’s senior electrical expert who told me after we finished writing some of the mandatory safety standards for the use of electricity in underground coal mines that he was amazed at how quickly lawyers grasped complex technical issues and put them in writing. I dared not tell him how dangerous I was simply changing a light bulb. On the other hand, I also remember the Bureau’s mine safety and health chief grumbling that "those damn lawyers can write regulations on how to get to the moon, but that doesn’t mean we can actually do it!"
The tasks of implementing the 1969 Act during the early 1970’s were truly prodigious. However, I, and many others, were imbued with the notion of public service instilled in us by John F. Kennedy’s call to national service and Lyndon Johnson’s "Great Society." It seemed then as if "good government" could solve all of America’s ills. However, in spite of our efforts, as well as the hard work of most miners and operators to understand and comply with the new law, tragedies continued in those early years --
And then all in 1972 –
at least 125 souls swept away and drowned when a coal mine refuse pile ruptured at Buffalo Creek, West Virginia;
nine miners killed at Blacksville No. 1 Coal Mine in West Virginia when they were trapped inby a fire caused by machinery powered by electrical trolley wires;
and the Sunshine Mine fire in Kellogg, Idaho which took 91 lives.
Each of these disasters were hammer blows to all in the mining community working so hard to improve safety. In spite of the best efforts of most people – something was clearly not working.
When Bob Barrett, the administrator of MESA asked me to become his assistant in early 1976, I jumped at the opportunity. Barrett was a remarkable man – a born politician – a coal miner’s coal miner – and, most importantly, a charismatic and natural leader. He had bipartisan support in the Congress, broad respect from most segments of industry and labor, and he made decisions using as his polar star the simple principle of "doing the right thing." Not for him the careful tap dancing of many in government who by attempting to satisfy everyone, end up satisfying no one.
Bob contributed greatly to the mine safety and health effort – and he would have accomplished more had not the twin methane explosions at the Scotia Mine in Ovenfork, Kentucky, occurred so early on his watch and consumed him so.
4. THE SCOTIA EXPLOSIONS
I remember Scotia well. That disaster was the most intense personal crucible of my life.
According to the official report of investigation:
Two gas and coal dust explosions, the first at approximately 11:45 a.m., March 9, 1976, and the second at approximately 11:30 p.m., March 11, 1976, occurred in the 2 Southeast Main area of the Scotia Mine, Scotia Coal Company, Ovenfork, Letcher County, Kentucky. All 15 men working in the 2 Southeast Main area at the time of the first explosion died as a result of the explosion. Ninety-one men in other parts of the mine at that time reached the surface without mishap. At the time of the second explosion, 13 men were underground near the entrance of 2 Southeast Main; 11 died as a result of the explosion and 2 repairmen working a short distance outby escaped without injury.
* * *
MESA investigators believe that the first explosion originated near No. 31 crosscut in 2 Southeast Main when a mixture of methane and air was ignited by an electric arc or spark from a battery-powered locomotive.
* * *
MESA investigators believe that the second explosion originated near the entrance of or in 2 Left section off 2 Southeast Main when a methane-air mixture was ignited by one of five possible sources: an electric arc or spark from a battery-equipped deluge system; three battery-equipped telephones; scoop batteries; residual fires; or a frictional spark from a fall of mine roof on a roof-bolting machine.
The bodies of the 15 miners killed in the first explosion were recovered from the mine in the early morning hours of March 10, but after discovering the bodies of the 11 men killed in the second explosion at mid-day on March 12, the rescue teams were ordered to return to the surface without recovering the bodies because of the possibility of another explosion.
Several days after the second explosion, after determining that high temperatures and potentially explosive levels of methane were present in key areas, a decision was made to seal the Scotia Mine, at least temporarily.
As I’m sure any of you who have been involved in a mine disaster know, these somewhat dispassionate words don’t even begin to describe the tragedy of the deaths of 26 men, including three federal coal mine inspectors who died in the second explosion. Nor do these words show the grief of the families of the dead – the anguish of friends – the heroic efforts of the ten mine rescue teams and others involved in the recovery effort – the callous behavior of some management representatives – and the cynicism of some United Mine Workers of American (UMWA) operatives, as well as certain elected legislators and executive branch officials.
Let me share some personal memories of those days.
In April, 1976, the Interior Secretary appointed a panel, chaired by Bob Barrett, to conduct public hearings as part of the investigation to determine the causes of the explosions. I was the secretary to the panel which met for a total of nine days in the small eastern Kentucky town of Whitesburg, the county seat of Letcher County.
I remember arriving in Whitesburg on April 5, the first day of the hearings. The streets of town were filled with people. The atmosphere was almost festive – but there was an undertone of anger and hostility – almost palpable in its effect.
The hearings were held in the unairconditioned county courthouse – and it was a warm April that spring in eastern Kentucky. The courtroom was packed with people. We had reserved the first several rows of seats for the families of the dead miners – and they filled the pew-like benches – somber as mourners at a funeral.
Our first witness was a Scotia fireboss who we already knew had failed to conduct the preshift inspection at the site of the first explosion early on the morning of March 9. He was a large, red-faced fellow and somehow, as soon as the panel began questioning him, he lost his voice – all he could do was cough. After about 15-20 minutes of this, it became apparent that we were getting nowhere with him so he was excused.
The next witness was Gordon Bonnyman, president of the Blue Diamond Coal Company which owned Scotia Coal Company and the Scotia Mine. Bonnyman was tanned and slim – a well-dressed patrician who spoke softly but clearly in the lilting accent of his native Knoxville, Tennessee – also the home of Blue Diamond Coal Co. He too was singularly uncommunicative regarding events at the Scotia Mine. After all, he had hardly anything to do, he said, with the Scotia Coal Co. – and even less to do with the Scotia Mine. Knoxville, Tennessee, and Ovenfork, Kentucky might as well have been on separate planets.
By the time Mr. Bonnyman stepped down from the witness chair, the courtroom was ready to explode. I saw the bright young radical staff members of the UMWA in the audience darting about talking excitedly with the families. Between them they were busily writing on the 3 x 5 inch index cards we had earlier handed out so questions could be asked by the public. One of my jobs was to collect these cards – and as I did so, I discovered that all of them (about two or three dozen) contained exactly the same question: "what are Bob Barrett and the U.S. Government doing to convict Gordon Bonnyman of first-degree murder?"
When I showed these to Bob, he gaveled the hearing to a recess and told me to ask the county judge if we could use his chambers to meet privately with the families. Then, in the most extraordinary meeting in which I have ever been involved, Bob and I, alone, met for an hour or so (it seemed like an eternity) with dozens of family members, all of us jammed together in the judge’s hot and humid chambers. The families were mad as hell! They yelled – they cried – we just listened.
After they had exhausted themselves, Bob began to speak to them quietly. He told them he too was a coal miner from a coal mining family in western Pennsylvania. He knew firsthand, he said, about sudden death in the mines – had seen it growing up when his grandfather and uncle were killed in accidents underground – had seen it as a man who had spent almost all of his career as a federal coal mine inspector. Bob promised the families that, as head of MESA, he would do everything within his power to see that justice was done for the dead and the living.
The anger deflated like a burst balloon. There was more crying – but this time there were tears of relief – handshakes from the men – hugs from the women, especially from the widows. From that moment on, the families became fast friends of Bob Barrett, and he and they communicated often throughout the remainder of the long ordeal of Scotia.
Just a few other flashbacks.
Eastern Kentucky was not then and is not now a strong bastion of the UMWA. I remember Arnold Miller, the reform-minded president of the UMWA, standing by himself on a street corner in Whitesburg after the first day of the hearings was over, as people (without so much as a glance) streamed past him out of the courthouse on their way home. He was dressed casually in an open sport coat with a .38 caliber pistol stuck into the waistband of his slacks. After all, it had only been a year or so since Miller’s predecessor, Tony Boyle, had hired assassins who murdered a Boyle rival and family members in their beds.
Re-entry and recovery of the Scotia mine began in July. I remember arriving at the mine in mid-November when the bodies of the 11 men killed in the second blast were reached and recovered. The part of the property where the office, maintenance shops, fan housing, main entry openings, and bath house were located looked like a frontier fort – surrounded by a high, strong stockade fence with security men clad in black fatigues and jump boots, and armed with M-16 rifles patrolling on elevated walkways just inside the perimeter of the walls. It was literally an armed camp.
I went underground to the explosion sites with a party shortly after the remaining bodies were brought out of the mine. I remember how eerily quiet it was – almost sepulchral. I’m no miner – whenever I go underground, I walk where the real miners walk. The atmosphere down there was so surreal, however, that I wandered away from my party for a moment before being gently taken by my elbow by a senior MESA inspector who quietly but firmly told me I was standing under unsupported roof – embarrassing and just a tad scary.
Not surprisingly, the Scotia disaster led to increased cries to transfer the mine health and safety program from the allegedly pro-industry Interior Department to a sympathetic Department of Labor. Legislation to accomplish this – to toughen the 1969 Act – and to bring metal and nonmetallic mines under the same law as coal mines – was introduced and vigorously debated in 1976. The bills were opposed by the Administration of President Gerald Ford, and the transfer legislation died when Congress adjourned late that year.
The die had been cast, however, because while campaigning in Appalachia in the summer of 1976, Jimmy Carter promised to sign into law new mine safety and health legislation if elected president. He was, and he did – and, for a variety of reasons, I decided that it was time to leave the employ of Uncle Sam.
By the way, it saddens me to this day that Bob Barrett was not able to achieve the justice he had pledged to the families. Scotia became a political football. Judicial proceedings were tied up in the courts for years. Even release of MESA’s Report of Investigation was blocked from release by court order until 1993, over 16 years after the explosions.
5. PROGRESS ACHIEVED AND OUTLOOK FOR THE FUTURE
My purpose in relaying what may seem to some of you ancient history is straightforward.
First, those difficult early years of the 70s were followed by one of the most remarkable industrial success stories imaginable. The safety achievements made within the U.S. mining industry between then and now are, simply put, unparalleled. The key to this progress, in my opinion, is the growth of an outstanding corps of safety and health professionals in the industry over the past 30 years. As this group has matured in both experience and stature, fatalities and injuries have dropped.
Without taking anything away from the many dedicated safety and health professionals in government and labor – I want to take my hat off to those gentlemen and now, more and more, the ladies in the industry who have worked so hard, under sometimes adverse circumstances, to achieve so much.
Having said this, none of us can afford to rest on our laurels because our business as safety and health professionals is, literally, a matter of life and death. And that brings me to the second reason for sharing some of my memories with you. The experiences I mentioned have been, in significant respects, the experiences of many industry, government, and labor safety and health professionals of my generation. I do not presume to speak for any of them because each has his or her own memories and perspectives. The historic context is the same, however, for us all.
The time has come, however, as we approach the new millenium – indeed the time is already past for some of us – to turn over to a new generation the improvement of mine safety and health in the United States . And as the baton of leadership is passed, we must remember from where we have come and where we should go.
Let me suggest a new benchmark for looking forward:
Enforcement is not an end in itself, and the successful enforcement of the Mine Act must be measured by a continuing decline in preventable harm to miners. Our long term goal must be to ensure that, without exception, an individual can devote a lifetime to a mining career and emerge healthy and unharmed.
These are not my words, but rather those of J. Davitt McAteer, the current Assistant Secretary of Labor for MSHA. They are good words, but the requirements and mandates of the 1977 Mine Act (still the law of the land today), not to mention the institutional methods of all parties (government, labor, and industry), make those words easier said than done.
As I look ahead, there may be some fine-tuning of our mine safety and health law, but I do not think that the law will change fundamentally in the foreseeable future. I do believe, however, that by constantly communicating among ourselves (and with the American public), industry, government and labor can reach new and improved levels of safety and health. What is required is hard work and honest leadership on all three sides of the equation. We must remember that while our interests may differ in some respects, we have much more in common than we realize on first blush – and when it comes to safety, all of us have the same goals.
There are no silver bullets, but here are a few suggestions for continuing progress which are not only applicable to the U.S. effort, but also, I suspect, in other mining countries.
First, operators expect MSHA to enforce the law, but they have every reason to demand it be enforced fairly, with their substantive and procedural rights accommodated and protected. Too often that is not the case, as MSHA frequently changes it rules and policies without adequate public input. MSHA needs to get back on track here if the regulated industry is to have confidence in the regulators.
Second, just as MSHA needs to implement enforcement with a purpose, instead of an attitude, the agency must ensure that its regulations have a purpose – and that purpose must be to prevent accidents and reduce injuries. MSHA’s regulations must be based on the most objective analysis of available data and plain, old practical experience, and the use of the best scientific and other analytical tools available, including risk analysis. Too often the Agency misses the mark in this area, seeming to force data into whatever predetermined regulatory goal the Agency seeks. In addition, all too often MSHA seems to be focused on insisting upon rigid, rote compliance with its rulebook. There is much more to safety than formalistic compliance, and the time has come for MSHA to create incentives for more creative and tailored approaches to accident prevention.
Third, the Agency needs to make better use of its limited resources. For example, MSHA should analyze the vast body of data it has collected under its accident, injury and illness reporting regulations to identify the relationships between that data, MSHA’s safety and health standards, and the Agency’s inspection and enforcement activities. Furthermore, although the law requires mandatory inspections of each underground mine in its entirety, at least four times a year, and at least two times a year at each surface mine in its entirety, there is no statutory definition of what is meant by an "inspection of a mine in its entirety." I believe that it is possible to develop an inspection scheme, consistent with law, that distinguishes between mines with good safety records and those operations with poor compliance. MSHA’s inspectorate should spend most of its time at those operations with poor safety and health performance records.
Last, but by no means least, MSHA should improve the professional development of its managers and inspectors. MSHA is, on the whole, a solid organization. However, it is crucially important to adequately train new generations of inspectors and managers to ensure that seasoned personnel retain or acquire necessary skills.
In short, a fundamental lesson to be learned from the past 30 years of the American experience in mine safety and health is that the role of government is an essential part of the solution, but it is not the sole factor. Safety and health professionals, company management, miners – all of us who are on the firing line every day in this never ending battle to save life and limb – are the essence of the solution. I learned a long time ago, as a young federal lawyer, that the government’s definition of "fairness and due process" is "never being arbitrary and capricious at the same time." We all need to work hard at preventing the unfettered boot of government from stifling innovative ideas and new solutions.
By making the above suggestions for MSHA, I do not mean to let industry and labor off the hook. When I left the government in 1977, I quickly learned the truth of what I had already sensed – that most mining people in industry and in labor are honest, sincere, and committed to the safety and health of miners. Case in point – Al Overton, long-time president of the American Mining Congress – my boss, friend, and mentor – always kept the safety and health of miners at the forefront of his thinking.
Industry tends to hide its light under a bushel basket. It is we, however, who must take the lead in fostering a cooperative dialogue with MSHA and labor. We must be proactive in this area and not be afraid to be bold in serving the cause of safety and health. This does not mean we roll over, but industry cannot afford to alienate either government or labor – and we must have the help of both if we are to succeed on virtually any front.
Equally important to continuing progress, all parties need to reach an improved level of trust with one another. Even when we speak the same language, we oftentimes misapprehend what we say to one another. Mutual understanding, respect, and necessary trust can only be reached by constant communication among us. It is we who must take the lead here too – not leave a stone unturned in the effort to resolve our problems through a balanced consensus.
In the last year or two, I see improvement in this dialogue. We must keep at it, remembering that none of us has a monopoly on the right solution to problems. Having said that, however, the U.S. legal system provides for redress of grievances and disputes in the courts and in the Congress. Those avenues, properly used, can resolve differences when consensus cannot otherwise be achieved.
The U.S. effort has come a long way in the past 30 years, but there is so much yet to do. In particular, recently and for the foreseeable future MSHA, the industry, and labor must deal more effectively with miner health issues such as exposure to respirable dusts, other air contaminants, and occupational noise exposures. Here some progress is being made which may be the first swell of a sea change in the way we do business. I speak here of the cooperative, constructive discussions underway among all parties to address concerns regarding the exposure of coal miners to respirable dust. MSHA’s decision to "address the conditions under which respirators could be used as a supplemental means for attaining compliance" is a step in the right direction. This coupled with the development of personal, real time dust monitors will significantly reduce miners’ exposure to respirable coal dust.
But let us not play the fool. There are bad guys out there. I leave it to each of you to sort out who in industry, government, and labor are the good, the bad, and the ugly. With that knowledge in hand, we must redouble our efforts to win over the bad and prevent the ugly.
To conclude, in March, 1969, President Nixon said in his message to the Congress calling for a new coal mine health and safety law:
Death in the mines can be as sudden as an explosion or a collapse of roof and ribs, or it comes insidiously from pneumoconiosis, or black lung disease.
It is our job and that of the generations who follow us to take the lead in making that statement a faint echo in our memories.