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Coal Slurry Spill Investigation Suppressed

Political Interference, Whistleblower Retaliation, and Lack of Transparency at the Mine Safety and Health Administration

In January 2001, incoming Bush administration political appointees pressured investigators at the Mine Safety and Health Administration (MSHA) to prematurely wrap up an ongoing investigation into the causes of the massive October 2000 coal slurry spill in Martin County, Kentucky.1,2 Mining engineer and whistleblower Jack Spadaro further alleged that Bush political appointees influenced the content of the final MSHA report and retaliated against him for going public with his claims.3 Additionally, MSHA withheld mine safety data from public view during the Bush administration, a policy reversal that undermined accountability and mine safety.

MSHA Initial Investigation of Coal Slurry Spill Begins

On October 11th, 2000, thick liquid coal processing waste contained in a Martin County Coal Corporation (MCCC) reservoir broke through the reservoir wall into an underground mine shaft, eventually dumping more than 300 million gallons of toxic sludge4 into the area’s rivers.5 Although there was no loss of human life, the spill resulted in the loss of aquatic life, stream degradation, property damage and drinking water contamination.6 MSHA, a branch of the Department of Labor (DOL) in charge of enforcing mine safety and health standards, opened an investigation into the incident.7

Spadaro, an engineer with experience in coal slurry spills and then the superintendent of MSHA’s training facility, was part of the MSHA team charged with investigating the accident. The investigation team began to discover that some federal regulators and MCCC employees knew beforehand that a coal slurry spill was possible.8

Following an earlier spill from the same Martin County reservoir in 1994, an MSHA engineer made nine recommendations to MCCC and MSHA regulators in a memorandum9 that was obtained by Salon through a Freedom of Information Act (FOIA) request. The memo indicated that MCCC should not be allowed to raise the level of the coal slurry reservoir without enacting the engineer’s recommendations.10

After the 2000 spill, MSHA’s engineering division head Mark Skiles wrote a memorandum (termed ‘the Skiles memo’) informing the spill investigation team that the local area MSHA office did not follow up on the 1994 recommended changes to the reservoir.11 According to Spadaro, MSHA district officials even allowed MCCC to increase the level of the reservoir by 80 feet12 after the 1994 incident without enforcing the needed changes.13 Based upon testimony from a consulting engineer, the investigation team also discovered that MCCC executives were aware of the continuing problems with the Martin County reservoir after the 1994 spill.14

Political Interference in the Accident Investigation

The investigation team was in the process of collecting evidence that could have led to multiple serious citations against MCCC and its parent company, Massey Energy, when the incoming Bush administration cut the investigation short in early 2001.15 Incoming Bush administration officials replaced Tony Oppegard with Tim Thompson as the Martin County spill investigation team leader.16

Thompson told the team to finish interviewing and begin drafting the report.17 The number of interviews the team had left to conduct was pared down from approximately thirty or forty to six.18 Before the change in leadership, the team was planning on citing MCCC for eight federal violations, with three classified as “willful and negligent.”19 MCCC was cited for only two violations in the final report, one of which was later dropped.20 The final $55,000 fine MCCC paid to the federal government paled in comparison to the $3.25 million in penalties in damages that the coal company paid to the state of Kentucky.21

The new head of MSHA, David Lauriski, was a former mining executive and other top appointees were connected to the mining industry as well.22 According to Spadaro, pressure from Bush’s political appointees resulted in a watered down final accident investigation report.23 Spadaro and some members of the investigation team, interviewed by Salon on condition of anonymity, also believe that MSHA officials attempted to influence and change the Skiles memo.24 Spadaro refused to sign the final report, resigned from the investigation team in April 2001, and filed multiple complaints with the DOL’s Office of Inspector General (OIG) stating that the Bush administration officials had interfered with the accident investigation.25

In response to Spadaro’s complaint, the OIG issued a report in 2002 concluding that “none of the allegations brought forward by Mr. Spadaro were substantiated.”26 Spadaro maintains that the report’s conclusion is false.27 A copy of the OIG report was obtained by Ellen Smith, owner and editor of the newsletter Mine Safety and Health News, through a FOIA request. Over fifty percent of the OIG report is redacted.28

Although entire pages are missing, the OIG report provides some insights into the accident investigation. At least one investigation team member initially did not want to sign the final report due to being “left out of conference calls concerning citations,” but during a conference call with Lauriski and others, the team member agreed to sign.29 The report recognizes that “the process of determining appropriate citations was contentious.”30 Further, the changes in the number of federal violations “were not reached unanimously, but a majority of participants did agree on each change to the list.”31

A particularly contentious citation that was not included in the final report involved an MCCC mapping discrepancy.32 MCCC allegedly misrepresented the thickness of a barrier wall between the impoundment and the abandoned mine shaft below in plans provided to MSHA for the re-opening of the impoundment after the 1994 spill.33 During the 2000 accident investigation the investigation team discovered that the barrier wall was much thinner than MSHA would have required.34 In an interview with Washington Monthly, an anonymous team member stated that Thompson’s fight against the inclusion of the mapping discrepancy citation “looked like he was trying to protect the coal company.”35

The OIG report goes on to describe how four team members met with Thompson to sign the final report. At first, Thompson only provided the signature page, and the four team members refused to sign without seeing the full report. The team members expressed concern that Lauriski and Thompson had denied them access to a shared computer drive containing information about the accident investigation. After a conference call with Lauriski, the team members were provided with a full copy of the report. They signed after making a few minor changes.36 One anonymous investigator stated that “I didn’t think it would be a good career move not to [sign].”37

Additionally, the OIG report discusses the “District Response” memo, a memo written by the district MSHA office in response to the Skiles memo’s allegations that the MSHA district office turned a blind eye to the MSHA engineer’s recommendations for the reservoir following the 1994 spill.38 The OIG report states that “the team members had concerns regarding the truthfulness... of the ‘District Response’ memo.”39 Both Spadaro and some members of the investigation team believe that the “District Response” memo was fictitious and back-dated to 2000.40 The OIG report only acknowledges the memo’s existence; the two pages following the initial description of the memo are redacted.41

Spadaro believes the investigation was suppressed for two main reasons. Bush’s nominee for Secretary of Labor was Elaine Chao. Her husband, Senator Mitch McConnell (R-KY), had just received a major campaign contribution through the Republican Senatorial Committee from Massey Energy.42 Spadaro alleges that Bush’s new political appointees were influencing the investigation in order to protect Massey Energy.43 Because the district MSHA office allegedly did not enforce the needed changes to the Martin County reservoir after the 1994 incident, top administrators within MSHA were also protecting MSHA from culpability.44

Whistleblower Retaliation

In October 2003, Spadaro was fired. After filing a complaint with a federal agency that handles whistleblower complaints, he was brought back, put on administrative leave, and then demoted. The government charged that he had abused his authority, misused government credit cards and failed to follow procedures.45 He believes these charges were in retaliation for speaking out against political interference within MSHA.46 Spadaro denied the charges and filed a lawsuit against the government. After being re-instated to his original position within MSHA, as a result of an agreement outside of court between lawyers, he eventually resigned.47

Linc Chapman, a Martin County resident interviewed by Washington Monthly, stated in reference to Spadaro, “Normally, I don’t like federal mining investigators. But it’s a shame that someone who stood up for what was right has to pay for it... He rocked the boat so they threw him overboard.”48

Lack of Transparency at MSHA: Mine Safety Data Withheld

In addition to accident investigation suppression and whistleblower retaliation at MSHA, mine inspection reports and notes were withheld from public view during the Bush administration. Beginning in 2004, the independent newsletter Mine Safety and Health News reported that MSHA reversed a longstanding policy of routinely releasing inspection notes and other information to the public.49

The newsletter links the lack of transparency at MSHA to an earlier memo by then Attorney General John Ashcroft50 to all federal agencies in 2001.51 The agencies were urged to restrict the release of information under the Freedom of Information Act whenever legally justifiable.52 (The Ashcroft memo, which reversed an earlier Clinton-era memo that instructed agencies to presume that information is releasable unless a specific reason exists, was itself overturned by Attorney General Eric Holder in March 2009.53)

In a January 2006 letter to then Secretary of Labor Elaine Chao, Representative Henry Waxman (D-CA) stated: "This unwarranted secrecy may protect the mining industry from embarrassing disclosures, but it undermines accountability and mine safety... The inspectors' reports and notes were particularly important. Not only were they used by mine safety organizations, mine workers, and the public to identify dangerous mines and practices, they were also useful to mine operators implementing needed improvements in mine safety."54

A report by the DOL’s Inspector General in 2006 found that MSHA missed legally required inspections at over 100 mines in 2006, in part due to lack of management emphasis on inspection completion.55,56 As mining accident deaths spiked upwards in 2005 and 2006, the cost of hidden and missing safety inspections became strikingly apparent.57

1. Office of Surface Mining. 2002. Report on the October 2000 Breakthrough at the Big Branch Slurry Impoundment. U.S. Department of Interior.
2. Babich, P. 2003. "Dirty Business". Salon, November 13.

3. Ibid.

4. Ibid.
5. Office of Surface Mining report. 2002.

6. Frazier, I. 2003. Coal Country. OnEarth, Spring.

7. United States Department of Labor Mine Safety and Health Administration. “MSHA’s Mission”.
8. Babich, P. 2003; Leung, R. 2004. A Toxic Cover-Up? Did Bush Administration Cover Up Environmental Disaster?. CBS News 60 Minutes, April 4.

9. Office of Inspector General (OIG). 2002. Martin County Coal Corporation Accident Investigation. U.S. Department of Labor, Office of Inspector General. December 9.
10. Babich 2003.
11. Ibid.
12. Spadaro, J. UCS interview, February 12, 2009.
13. Babich 2003.
14. Ibid.
15. Babich 2003; Leung 2004.
16. Spadaro interview 2009; Babich 2003.
17. OIG report 2002; Spadaro interview 2009.
18. Babich 2003; Spadaro interview 2009.
19. OIG report 2002.
20. Leung 2004; Spadaro interview 2009; OIG report 2002.
21. Babich 2003.
22. Ibid.
23. Spadaro interview 2009.
24. Babich 2003; Spadaro interview 2009.
25. Babich 2003; Leung 2004.
26. OIG report 2002.
27. Leung 2004.
28. Babich 2003; OIG report 2002.
29. OIG report 2002.
30. Ibid.
31. Ibid.
32. Ibid.
33. Bingham, C. 2005. Under Mined. Washington Monthly, January/February.
34. Bingham 2005; Babich 2003.
35. Bingham 2005.
36. OIG report 2002.
37. Bingham 2005.
38. Spadaro interview 2009.
39. OIG report 2002.
40. Babich 2003.
41. OIG report 2002.
42. Spadaro interview 2009; Dao, J. 2003. Mine safety official critical of policies faces firing. The New York Times, November 9.
43. Spadaro interview 2009.
44. Ibid.
45. Bingham 2005.
46. Babich 2003; Leung 2004.
47. Spadaro interview 2009.
48. Bingham 2005.
49. Smith, E. No date. Assault on freedom of information: The public has a right to know how decisions are made. Mine Safety and Health News.
50. Ibid.
51. United States Department of Justice (DOJ) FOIA Post. 2001. New Attorney General FOIA Memorandum Issued. U.S. DOJ Office of Information and Privacy.
52. DOJ FOIA Post 2001; Smith, E.
53. Holder, E. 2009. Memorandum for Heads of Executive Departments and Agencies, Subject: The Freedom of Information Act (FOIA). March 19.
54. Waxman, H. 2006. Letter to Secretary of Labor Elaine Chao, January 11. Representative Henry Waxman (D-CA) was chair of the House Oversight and Government Reform Committee.
55. Office of Inspector General (OIG). 2007. Underground Coal Mine Inspection Mandate Not Fulfilled Due to Resource Limitations and Lack of Management Emphasis. U.S. Department of Labor. November 16.
56. Hsu, S. 2007. Report faults mine safety: Agency missed inspections at 107 facilities last year. Washington Post, November 17.
57. Frank, T. 2007. Coal mine deaths spike upward. USA Today, January 1.

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