West Virginia Lawyer Blog

Following the Upper Big Branch mine disaster, a panel of three mining experts will study ways to improve mine safety and oversee a $48 million foundation. The foundation was the result of a $209 million settlement entered into by Alpha Natural Resources, which purchased Massey Energy Company (original owner of Upper Big Branch) and the federal government.

The foundation, dubbed the Alpha Foundation for the Improvement of Mine Safety and Health, will be headed by Dr. David Wegman, a professor of work environment at University of Massachusetts Lowell; Michael Karmis, director of the Virginia Center for Coal and Energy Research at Virginia Tech; and Keith Heasley, a professor of mining engineering at West Virginia University.

Partially guided by findings from the Upper Big Branch investigation, the panel would consider research areas such as how to monitor gases in mines continuously, rather than periodic monitoring, which is the current method. The panel expects that most of the foundation money will be spent on research, as opposed to staffing or other overhead costs. Funds might be distributed over several years, with the foundation lasting five to eight years overall. That way, the panel members claim, the foundation is most likely to produce meaningful results, as the panel has time to consider several different approaches.

Mines in the United States are generally considered to be safer than mines in other countries, with lower rates of both injury and fatality. However, mining companies in the U.S. have been slow to adopt new technology for mining communication and mine worker tracking. We at the Wolfe Law Firm think that the foundation is a welcome development and hope that it leads to some important changes in the way mining companies operate.

However, mining companies don't need to wait for studies to come out, prescribing which technological changes to adapt, in order to produce meaningful safety results. One important first step is for mining companies to be honest in seeking out and fixing safety issues. This means keeping accurate log books and not pressuring workers to fill them out inaccurately -- as the Upper Big Branch managers shamefully did during the months leading to the accident. This also means allowing mine workers to be human beings, to take legally required rest breaks and not work back-breaking shifts. Finally, it means doing regular safety inspections of regularly used equipment and replacing equipment that is too old.

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In South Charleston, West Virginia, nine employees from an IHOP restaurant had to be taken to the hospital after inhaling a cloud of hazardous chemicals. The cloud was formed when one employee added the wrong type of chemical to a dishwasher used to clean restaurant hardware.

Two chemicals, a degreaser and a chlorine-based cleaner, were mixed together to create the hazardous cloud. The cloud soon filled the air, smelling strongly of bleach. It was large enough that restaurant diners were able to see it and knew that something was amiss. Restaurant workers then called 911 and evacuated diners to the outside parking lot. When emergency first responders arrived, they set up a staging area in a specific location where the wind was blowing the other way, so the cloud would not reach them.

The offending degreaser is known as Delimer, which contains phosphoric acid. The safety sheet accompanying Delimer warns against mixing it with "chlorinated detergents," or the result could be toxic fumes. Under federal law, employers are supposed to provide employees with safety sheets for any toxic substances used in the course of employment, as well as training on how to safely handle the materials. That may not have taken place at IHOP, given that employees allegedly used Delimer with chlorine bleach repeatedly.

It is more common than one would think for people in homes and businesses to mix bleach with other cleaning products. They do so in order to produce a chemical that cleans easier. But the result is a chlorine gas that, at the least, can irritate the eyes and affect breathing. At worst, in stronger doses, it can cause death from asphyxia or pulmonary edema, especially for people with previous respiratory ailments. Fortunately, although nine IHOP employees were taken to the hospital for treatment, none were seriously harmed. Emergency workers cautioned, though, that other symptoms could manifest later.

We at the Wolfe Law Firm have represented many employees who have suffered injuries while on the job. Most employers are required to carry workers compensation insurance; therefore, if an employee gets injured at work, he or she can collect a fixed amount of payments in place of wages until the employee is able to work again. This is true regardless of whether the employee's conduct was at fault. The main exception to this rule is if the employee was injured as a result of being intoxicated or on drugs. If an employer carries workers compensation, however, the employee cannot elect to file a lawsuit instead. The employee has no choice but to take the workers compensation payments.

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Will Governor Earl Ray Tomblin's proposal to have mine workers tested for drugs distract from other necessary mine safety repairs? That is what Independent Investigator Davitt McAteer and the United Mine Workers fear.

The drug testing element is part of an overall mine safety bill introduced by the governor. Governor Tomblin's bill is one of two being considered, with the other being introduced by House Speaker Rick Thompson. Both bills have provisions for criminal penalties and automatic shutdown of equipment if the methane levels are too high. However, they differ on other crucial elements. Governor Tomblin's bill features the industry-backed drug testing requirement, while Thompson's features more whistleblower protections and family involvement in investigations.

McAteer calls the drug testing provision a "distraction" and emphasizes that it was not what killed mine workers in the 2010 Upper Big Branch disaster. Autopsies of those killed in the disaster showed no illicit drugs in the mine workers' systems. Instead, the cause of death was decidedly due to Massey Energy's failure to follow safety rules governing mine ventilation and the cleanup of coal dust, which can be highly explosive. McAteer pointed out that nearly three-fourths of the mine workers killed in the Upper Big Branch explosion had black lung disease. A strict limit on the legal level of coal dust in underground mines would help prevent this. McAteer recommended legislation requiring mine companies to use coal-dust meters that would measure "explosibility" levels and also require companies to install ventilation monitors that would keep track of fresh-air flow underground. As part of the settlement, Alpha Natural Resources, which purchased Massey Energy Company, has agreed to implement these changes.

We at the Wolfe Law Firm believe that while worker behavior can be at fault for an accident, creating a safe workplace should be the priority -- especially in an industry as dangerous as coal mining. As McAteer noted, West Virginia is still a leader in mining fatalities. What would happen, though, if the law were passed and coal mine workers needed to be tested?

Most employers are required to carry workers compensation insurance. When you or your loved one is injured in a workplace accident, you would be eligible to receive workers compensation in place of wages during the recovery, even if your conduct contributed to the accident. However, there are exceptions. In many states, if drugs or intoxication contributed to the accident, the worker may be denied workers compensation. That is likely the reason mining companies are pushing to have mine workers tested -- because the company could argue that drugs or alcohol caused, or contributed to, the accident -- or that the worker should be de facto denied just for having had alcohol or used drugs. When that happens, it would be best to find a West Virginia personal injury attorney to explain your options.

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