Thursday, April 8, 2010

For the Chance to Go Down to the Sound Tonight And Walk On Water

We live in a free nation. A republic whose very existence was the result of the blood, sweat and tears of countless men and women who believed that life, liberty and happiness were all things worth pursuing. Thus, you are free to espouse your own personal beliefs. And you are free to disagree with those I espouse if you choose to do so. I can act in kind.

As of mid-Wednesday afternoon - approximately forty-eight hours after the explosion that killed twenty-five West Virginia coal miners occurred, that state's Governor and the families of the four as-of-yet unaccounted miners continued to hope against hope for a happy ending. In a situation where they appear to have had their lives ripped to shreds by a tragedy whose roots may or may not be found in the bastardized business practices of their loved ones' employer, they are choosing to believe in the possibility of the impossible. And unless and until they are presented with evidence sufficient to convince them to stop embracing that possibility, I hope their resolve remains strong. Strong enough to sustain them. They are willing to wait for a miracle. No one can possibly challenge their decision to do so.

You believe what you want to believe and I shall be free to do likewise. I believe that there are scant few truly unavoidable occurrences that happen in this world on a day in, day out basis. And the more I read about the people who own and operate Massey Energy, the more it seems as if Monday's events were the result of a marriage made in hell: the tempestuousness of nature and the callousness of man.

According to the Associated Press and MSNBC, in January 2010 Massey Energy was cited by regulators at its Upper Big Branch Mine for having significant safety issues, including one that - while corrected almost immediately after being called on the regulatory carpet for it - had gone known but unacted upon for three weeks prior to the regulators' arrival. How important can it possibly be to ensure that the system you have in place for your miners - the one designed to pump fresh air to them in the event of an emergency - actually is operating correctly so that the fresh air is actually being pumped into the mine and now out of it? If you lack the moral fortitude to recognize that as a rhetorical question then I know not whether to weep for you or to invite you to contact HR at Massey Energy. You just might be their kind of folk.

As a lawyer you can imagine how it warms the cockles of the little briquette masquerading as my heart to see the passion Massey Energy brings to bear in one aspect of its operation: appealing penalties and fines assessed against it by the Federal Government. MSNBC reports that, "Massey Energy Co., which owns the Upper Big Branch mine, the site of Monday's explosion, is still contesting more than a third of all its violations there since 2007. In the past year, federal inspectors have proposed more than $1 million in fines for violations at the mine in Montcoal, W.Va. Only 16 percent have been paid. Among the violations that have been appealed are the company's two largest fines on record, assessed in January for problems with the mine's ventilation systems." While it is unclear whether Massey added to its auspicious collection of citations on Monday before or after the explosion occurred at the Upper Big Branch Mine, Federal regulators did indeed tag the company for two more violations on Monday, including one involving inadequate maps of escape routes from the Upper Big Branch mine. Underground coal mines are required to have maps detailing escape routes, oxygen caches, and refuge chambers.

Again, if one who knows squat about coal mines such as Yours Truly is able to recognize the importance of an item such as a well-mapped escape route then one would suspect that those in the business of making money off of the owning and operating of a coal mine would be kind of, sort of familiar with the importance as well; right? For Christ's sake, if you are traveling on I-95 between Florida and New Jersey and at the end of a day's driving you pull off of the highway and into a motel or hotel for the night, you can damn well be assured of the fact that the joint into which you have spilled yourself - be it a Motel 6 or a Four Seasons - will have a map on the back of your door detailing your emergency escape route. If hoteliers consider it essential, then one presumes mine operators recognize its importance as well. Right? Apparently not.

This is America so you are free to ascribe this company's material breach of its responsibility to the people who work for it in its mine and the families whose very lives are dependent upon its mine to whatever makes you least uncomfortable: ignorance, inadvertence, stupidity, carelessness, etc. Me? I believe it is likely not ascribable to any of those. Nope. In the land where coal is king, the almighty dollar is the fuel that powers the kingdom. Somewhere, someplace in the bowels of the Massey offices I suspect there is an actuarial study or ten that the Company commissioned for the purpose of running the numbers on the cost of compliance/correction against the cost of rolling the dice (a/k/a the expense of litigation and the associated payouts in terms of verdicts and/or settlements.)

Human beings are animals. Animals are creatures of habit. From time immemorial those in a position to take advantage of those unable to protect themselves have done so. The story's always the same. And not just in the coal mines of Appalachia. It just happens to be where this week's demonstration of the timeless lesson is playing itself out. The boys from Massey did not invent the game. This week they just happen to be the ones in possession of the ball.

For the people whose loved ones have died this week - and for those families who still do not know whether they too belong in that number - they care about something significantly more important than the seemingly egregious business practices of a coal mining company. They hurt because a most terrible loss has been visited upon them. And while there may be a day in which it does not ache to simply inhale and exhale, that day is not today and it does not appear to be tomorrow either. So, they wait and they hope. They hope and they wait. In a life that has given them too few options thus far, they find themselves again without any.

-AK

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