Spadero, J

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=target mcconnell mafia
<a href="https://www.propublica.org/article/don-blankenship-mitch-mcconnell-feud-the-senator-aided-the-mining-executive">https://www.propublica.org/article/don-blankenship-mitch-mcconnell-feud-the-senator-aided-the-mining-executive</a>?utm_source=pardot&utm_medium=email&utm_campaign=dailynewsletter
Before the Blankenship-McConnell Feud, the Senator Aided the Mining Executive
Mitch McConnell helped Don Blankenship’s company avoid dire regulatory consequences for a disastrous spill in 2000.

by Alec MacGillis May 7, 1:02 p.m. EDT

Don Blankenship, left, and Mitch McConnell (Spencer Platt/Getty Images, Alex Wong/Getty Images)

As

the race for the West Virginia Republican Senate nomination hurtles

toward Tuesday’s primary, candidate Don Blankenship, the former coal

executive sentenced to a year in federal prison in connection with a

2010 mine explosion that killed 29 men, has unleashed blistering

invective against Senate Majority Leader Mitch McConnell and his wife,

Transportation Secretary Elaine Chao.

He has taken to

calling McConnell “Cocaine Mitch,” an allusion to drugs once found on a

ship owned by the shipping company owned by Chao’s father, whom

Blankenship calls a “wealthy China-person.” His ad hominem barrage,

provoked by McConnell’s well-funded effort to deny Blankenship the

nomination, culminated in an eye-popping TV ad in which Blankenship

charged that McConnell has “created millions of jobs for China-people”

and that McConnell’s “China family has given him tens of millions of

dollars.” The ad pledged to “ditch Cocaine Mitch for the sake of the

kids.”

What has gone overlooked amid this extraordinary clash, is

that 18 years ago, both McConnell and Chao effectively sprang to the

defense of Blankenship, sparing his company considerable cost and

consequences for a disaster that unfolded in their home state of

Kentucky in the middle of the night on Oct. 11, 2000. Here is how I

described the episode in my 2014 biography of McConnell:

Three hundred million gallons of coal slurry, the viscous mix of mud,

coal waste, and chemicals left as a by-product from purifying coal,

broke through the inadequate buffer that separated the 68-acre holding

pond of the Martin County Coal Corporation’s Big Branch Refuse

Impoundment from the surrounding mine. The dark sludge poured

through two miles of mine tunnels — a miner had left the area just

moments earlier — before oozing out of a mountainside opening into the

hilly landscape of eastern Kentucky. It found its way into two

tributaries of the Big Sandy River — first Coldwater Creek, and then,

after the pressure forced a break in the other side of the impoundment,

into Wolf Creek — filling them ever higher until it overran embankments,

spreading toward the homes lining the creek bottoms of Inez, the

500-person town that Lyndon Baines Johnson visited in 1964 to promote

his War on Poverty, and covering their yards with a vast moat of goop

that rose to six feet deep in places. Inez resident Mickey McCoy threw

golf-ball-size rocks into the blackened creeks and watched as they

refused to sink in the noxious pudding. “It was a slow-moving black

smothering,” he says. There was no immediate effort by the company to

alert the townspeople sleeping in the spill’s path — Abraham Lincoln

“Linc” Chapman didn’t know about the sludge until he encountered it

while heading up Coldwater Creek before daybreak to hunt deer. “It was a

lot of chaos,” he says. “If you never saw a slurry spill it’s hard to

describe it. It was like a lava flow coming down from the creek bed.”

The

spill, which was vastly larger in scale than the oil spill from the

Exxon Valdez, left a 70-mile path of destruction running all the way to

the Ohio River, killing 1.6 million fish and countless wildlife that got

stuck in the muck or drank from it, sweeping away roads and bridges,

and contaminating the water systems of more than 27,000 people.

Major

consequences loomed for the owner of the Martin County Coal Company:

mining giant Massey Energy, which was led by Blankenship. Among the

agencies that kicked into gear were the Mine Safety and Health

Administration, which had issued recommendations about strengthening the

holding pond walls in 1994 following a smaller spill.

A team of

investigators from MSHA was on its way to alleging eight separate

violations against Massey that could have resulted in hundreds of

thousands of dollars of fines and laid the legal basis for criminal

charges of willful negligence.
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But in the midst of their work, the presidency fell to George W. Bush following

the Florida recount and Supreme Court ruling in Bush v. Gore. “I don’t

think I have ever felt better, including my own election victories, than

the night of the Supreme Court decision,” McConnell said later.

The

day of Bush’s inauguration, the head of the MSHA investigative team,

Tony Oppegard, got a call from superiors alerting him that the Bush

administration was declining to approve the six-month extension that had

been arranged for him so he could finish the investigation. The person

who replaced Oppegard, Tim Thompson, arrived in Kentucky and told

Oppegard’s No. 2, Jack Spadaro, to scale back the investigation.

The team had 30 people left to interview, but the new manager told them

they had time for only six. “We were told, ‘Boys, you need to close out

your investigation,’” Spadaro told me in an interview for the book. “We

said, ‘No, we’re not done.’ He said, ‘You’re done.’”

MSHA,

which is part of the Labor Department, was overseen by the secretary of

labor: Chao, whom Bush nominated upon taking office. Chao, who had

previously led the Peace Corps and United Way, turned to her husband’s associates to fill out her office.

She hired as her chief of staff Steven Law, who had served six years as

McConnell’s chief of staff (and went on to co-found the super PAC

Crossroads GPS with Karl Rove.) She hired as her spokesman McConnell’s

former spokesman. And the new director for MSHA, a former Utah coal

operator named David Lauriski, hired as one of his top aides yet another

former McConnell staffer, Andrew Rajec, who began attending many of the

meetings of the Martin County investigators.

In my book, I described what happened next:

Thompson pushed to have the case against Massey reduced to just two

violations with a fine of $55,000 each, rather than the eight that

Spadaro and his fellow investigators believed were justified. One day in

April 2002, Thompson got a call from MSHA headquarters outside

Washington, D.C., after which, with the investigators watching, he

crossed out a section of the draft report that called MSHA to account

for its lax oversight.

    That was enough for Spadaro. Seeing

where things were heading, he tendered his resignation in a letter

published in the local papers. ‘I do not believe that the accident

investigation report, as it is being developed, will offer complete and

objective analysis of the accident and its causes,” he wrote. As word of

Spadaro’s protest spread, Elaine Chao dismissed it by telling a

reporter, “It’s time to call off the MSHA food fight over the Martin

County Coal Slurry investigation.”

Soon afterward, Spadaro

became the target of an internal audit. When he was called to MSHA

headquarters outside Washington, D.C., to be reprimanded, MSHA officials

went into his office in West Virginia to confiscate his files and hard

drive. They picked apart his family photos to search for

incriminating evidence he might have tucked inside the frames. A few

months later, he was fired. He challenged his termination and had it

reduced to administrative leave, but when the agency then demoted him

and ordered him to a post in Pittsburgh, he quit.

Meanwhile, the

investigation sputtered to a close. In April 2002, MSHA cited Martin

County Coal with just the two violations — and its case for those was so

halfhearted that one was later dismissed by an administrative law judge

and the other reduced to a mere $5,600 fine.

What was

particularly striking about the light approach taken by Chao’s Labor

Department was that it would have been easy for the Bush administration

to use the disaster as a political weapon against its predecessors — to

blame the disaster on the lax oversight by Bill Clinton’s MSHA. Taking a

stronger stand on the spill would’ve been a way to stand up on behalf

of the people of eastern Kentucky — her husband’s constituents.

But

that also would’ve meant coming down hard on an industry that had, by

2000, swung firmly behind the Republican Party and McConnell in

particular. Over McConnell’s career, his fifth-biggest source of

campaign contributions was Peabody Energy, the largest coal company in

the world. Between 1997 and 2000, when he led the National Republican

Senatorial Committee, the coal industry gave $584,000 to the group,

making it one of the group’s staunchest supporters.

And

Massey? It hadn’t given the NRSC anything. That is, not until 2002,

when the investigation was still pending. That year, it cut a $100,000

check to the group.

As

Spadaro saw it, it was pretty plain what had happened: “It was Mitch

McConnell who fired Jack Spadaro,” he told me. “I’ve been around a long

time and I swear this was one of the most outrageous things I’ve ever

seen. It was one of the most blatant circumventions of the law and it

was all orchestrated by Mitch McConnell’s people.” (McConnell’s office

did not respond to requests for comment, nor did Chao’s office or

Blankenship’s campaign.)

Fast forward to 2018. Massey

Energy no longer exists, having been subsumed by Alpha Natural

Resources. West Virginia has become a stronghold of Trump country, not

least because of his outspoken support for the coal industry — he won

the state by a whopping 42 percentage points. Blankenship is seeking

with his campaign to tap into the same iconoclastic fervor that drove

Trump. But McConnell calculates that even in West Virginia, the party’s

best odds for knocking off Democratic Sen. Joe Manchin in November do

not lie with someone who not long ago was behind bars in connection with

the deaths of 29 West Virginians — and whose primary residence is a $2.4 million villa with palm trees and an infinity pool near Las Vegas.

And

guess what one of the top targets has been for the barrage of attack

ads against Blankenship by the McConnell-allied group, Mountain Families

PAC? One 30-second spot in frequent circulation says Massey Energy

pumped “toxic coal slurry” into local drinking water. The narrator asks,

“Isn’t there enough toxic sludge in Washington?”

<a href="http://www.jackspadaro.com/news_media.html">http://www.jackspadaro.com/news_media.html</a>

<img src="http://www.jackspadaro.com/images/spacer.gif" alt="spacer gif" width="1" height="20" border="0" />Press Releases

May 14th, First West Virginia Labor History Association Film Festival with special guests Davitt McAteer and Jack Spadaro
posted on:     April 22, 2005    10:10 pm ET

[Charleston, WV] The West Virginia Labor History Association will be

sponsoring the First West Virginia Labor History Film Festival on

Saturday, May 14th, at 7 PM. The event is taking place in cooperation

with The South Charleston Museum at the La Belle Theater. Davitt

McAteer and Jack Spadaro will be the special guests. Mr. McAteer will

introduce the film he produced and directed, Monongah, 1907. Jack

Spadaro will introduce a film made by Robert Salyer of Appalshop -

Sludge, which will have its official world premiere in Whitesburg,

Kentucky in June. Mr. Spadaro is profiled in the film which is about

the Martin County, Kentucky sludge spill in 2000. Dr. Fred Barkey, the

president of the West Virginia Labor History Association, will introduce

the two speakers and give a brief history of the association.

Admission is free.

Mr. McAteer, a 1970 graduate of the West Virginia University College of

Law, is the Vice President of Sponsored Programs Wheeling Jesuit

University, Legal Counsel to Wheeling Jesuit University, and Director of

the Coal Impoundment Project for Wheeling Jesuit University. In the

1970s, he worked on two major pieces of federal legislation -- the

Surface Mine Control and Reclamation Act and the Federal Mine Safety

& Health Act. From February 1994 until December 2000, he served as

Assistant Secretary of Labor under President Bill Clinton. As Assistant

Secretary of Labor, he directed and managed the Mines Safety and Health

Administration division of the United States Department of Labor. In

1986 he produced and directed Monongah, 1907, a 29 minute documentary on

the history of U.S. laws protecting coal miners, using the Monongah, a

1907 disaster where 362 miners. The film was made as a result of

Research for a book he wrote titled "Coal Mine Health and Safety - The

Case of West Virginia" (1973). He is writing a book on the Monongah

mining disaster that he hopes to complete in the near future.

Jack Spadaro was the director of the National Mine Health and Safety

Academy. Mr. Spadaro began his career as a mining engineer shortly

before the Buffalo Creek Disaster on February 26, 1972. During the next

34 years he worked in various capacities in the industry, working on

coal waste dam safety and regulating strip mining. He was appointed by

Davitt McAteer to be the director of the world-famous mine safety

academy. In 2000 Mr. Spadaro was removed from office, resulting in his

forced retirement on October 1, 2004. Sixty Minutes, the New York

Times, and many print and other media organizations claimed that Mr.

Spadaro was a "casualty" of the Bush Administration's war on

environmental regulations.

<strike>The Ohio Valley Environmental Coalition and other

environmentalist fought hard to keep Mr. Spadaro in his position, and

one support rally is shown in the film Sludge.</strike>

Mr. Spadaro was named the WV Mountaineer of the Year 2003 by Graffiti

magazine and received the $ 5,000 Jenco Award in 2004 from the Jenco

Foundation, based in Athens, Ohio. This foundation was created by

Beirut hostage Terry Anderson in honor of his friend, Father Jenco, who

was active in helping Appalachians.

==

A government whistle-blower says the <a href="http://www.sourcewatch.org/index.php?title=Bush_administration" title="Bush administration">Bush administration</a>

covered up the reasons for a toxic coal slurry spill in Appalachia that

ranks among the worst environmental disasters in U.S. history. <a href="http://www.cbsnews.com/stories/2004/04/01/60minutes/main609889.shtml" class="external autonumber" title="http://www.cbsnews.com/stories/2004/04/01/60minutes/main609889.shtml" rel="nofollow">[6]</a>

<dl><dd><a href="http://www.sourcewatch.org/index.php?title=Jack_Spadaro&action=edit&redlink=1" class="new" title="Jack Spadaro (page does not exist)">Jack Spadaro</a> tells Correspondent Bob Simon that political appointees in the <a href="http://www.sourcewatch.org/index.php?title=Department_of_Labor" title="Department of Labor" class="mw-redirect">Department of Labor</a> whitewashed a report that said an energy company that had contributed to the <a href="http://www.sourcewatch.org/index.php?title=Republican_Party" title="Republican Party" class="mw-redirect">Republican Party</a> was responsible for the 300-million gallon spill.</dd></dl>

<dl><dd>Simon's report will be broadcast on 60 Minutes, Sunday, April 4, at 7 p.m. ET/PT. Spadaro was until recently the head of the <a href="http://www.sourcewatch.org/index.php?title=National_Mine_Health_and_Safety_Academy&action=edit&redlink=1" class="new" title="National Mine Health and Safety Academy (page does not exist)">National Mine Health and Safety Academy</a> and played a key role in investigating the spill, which was 25 times the size of the <a href="http://www.sourcewatch.org/index.php?title=Exxon_Valdez_disaster&action=edit&redlink=1" class="new" title="Exxon Valdez disaster (page does not exist)">Exxon Valdez disaster</a> in Alaska.</dd></dl>

<dl><dd>"It polluted 100 miles of streams, killing everything in the streams, all the way to the Ohio River," says Spadaro of the October 2000 spill that affected West Virginia and Eastern Kentucky.</dd></dl>

<dl><dd>"The Bush administration

came in and the scope of our investigation was considerably shortened. I

had never seen something so corrupt and lawless in my entire

career...interference with a federal investigation of the most serious

environmental disaster in the history of the Eastern United States."</dd></dl>

<dl><dd>Spadaro says his investigation found <a href="http://www.sourcewatch.org/index.php?title=Massey_Energy" title="Massey Energy">Massey Energy</a>,

the owner of the impoundment containing the viscous and toxic liquid,

knew the containment was weak, and in fact, had leaked once before. The

company was going to be cited for serious violations that could have

resulted in large fines and criminal charges, Spadaro says.</dd></dl>http://grist.org/article/jack-spadaro-needs-to-rescue-msha-and-osm2/Jack

Spadaro is a singular figure in the mining world. With nearly 40 years

of experience as a mine safety engineer and expert, Spadaro is one of

those very rare government regulators who is revered alike by miners and

coalfield citizens for his meticulous commitment to safety, health and

environmental standards in the coalfields.

On

the heels of last December’s TVA coal ash pond disaster, and the EPA’s

recent decision to review mountaintop removal policies more closely,

which has set off a flurry of miscommunication in the mining industry,

Spadaro’s legendary expertise and clarity could not be more needed in

the transitioning corridors in Washington, DC.

Whether

it is a high level appointment at MSHA or the Office of Surface Mining,

the Obama administration could use someone with Spadaro’s integrity to

rebuild the public trust in our regulatory agencies; that mining

companies and the agencies responsible for enforcing mine health and

safety and environmental laws must carry out their proscribed duties and

be held accountable when they fail to do so.

“Jack

Spadaro always put the safety of the communities first,” says Teri

Blanton, with the Kentuckians for the Commonwealth. “He is one of my

heroes. He carefully documented a disturbing history of violations

leading up to, and following, the Martin County Coal sludge disaster.

When the Bush administration pressured him to ignore the violations and

sign a watered down report, he refused to back down, and it eventually

cost him his job. I can’t imagine a greater sacrifice to make in the

name of public service.”

During

the draconian era of the Bush administration, Spadaro’s

incorruptibility forced him out of his job at MSHA, where he served as

the Superintendent at the National Mine Health and Safety Academy, and

investigated the Martin County, Kentucky coal slurry breakage in the

fall of 2000 under the Assistant Secretary of Labor. One of the worst

environmental catastrophes in the US until the recent TVA coal ash pond

disaster, the Martin County spill at the Massey Energy site dumped over

300 million tons of toxic sludge into 100 miles of streams,

contaminating the water supplies for 27,000 people, and wiping out 1.6.

million fish. When Spadaro blew the whistle on the subsequent downplayed

investigation reports and watered-down enforcement actions by the

incoming Bush administration appointees, he found himself locked out of

his office. In the end, Massey was cited for two minor violations and

fined $110,000.

As

independent journalist Beth Wellington reported, House Committee on

Education and the Workforce members, including Representatives George

Miller, D-CA, Robert Andrews, D-NJ and Major Owens, D-NY, wrote to

Secretary of Labor Elaine Chao about the machinations behind the 2002

attack on Spadaro’s crusade for safety and enforcement:

“Obviously

Mr. Spadaro’s status as a whistleblower–questioning the conduct of the

Martin County Coal investigation and the Department’s use of no-bid

contracts with friends and associates of Department officials–raises a

very serious concern about the nature of the current disciplinary

investigation against him.”

Since

2004, Spadaro has served as an independent mine safety & health and

environmental expert. In accepting the Jenco Foundation Award for his

long-time commitment to the Appalachian region in 2004, Spadaro looked

back at his career beginnings:

“My

own job began in November 1968 at the Farmington Mine near Fairmont,

West Virginia, where 78 miners died in a methane gas explosion. I had

worked the summer before the explosion in that mine as an engineer

trainee, so the deaths of those men was a devastating experience for me.

In response to that disaster, Congress enacted the Coal Mine Health and

Safety Act of 1969, which became the foundation for mine worker health

and safety for the next 35 years. I did dedicate my life at that time to

doing anything that I could in my career to improve working conditions

and living conditions for miners and their families in the Appalachian

coalfields.

“Later,

in 1972, I went to Buffalo Creek in Logan County, West Virginia where a

coal waste dam had failed around breakfast time on February 26. The dam

failure sent 132 million gallons of black sludge down the narrow

valley, killing 125 men, women and children and destroying homes in 17

communities. Some communities were literally swept away, never to be

rebuilt. I spent the spring and summer of 1972 interviewing survivors

and writing an engineering report regarding the cause of the dam

failure. I’ll never forget the faces or the voices of those people and

the suffering they endured.”

In

2006, Spadaro received the Hugh Hefner First Amendment Award for his

significant contributions to the protection and enhancement of

constitutional rights. Here’s a clip from that award:

the Obama administration begins to make its high level appointments at

MSHA and OSM, let’s hope Jack Spadaro will be there to usher in a new

era in the coalfields.==

Elaine Chao, Secretary of Labor

A

former director of five different companies, including Dole Food and

Clorox, and an executive at Bank of America, Chao used to work for the

Heritage Foundation where she helped the think tank denounce affirmative

action. She was a Bush “Pioneer” in 2000, bundling over $100,000

Under Chao, the Labor Department reversed OSHA rules protecting workers

from repetitive stress and tried to get Congress to eliminate overtime

protection for millions of workers,

---1972

buff ck coal slurry dam collapse killed 120 ppl. 2000 Massey 300 m

gallon, biggest disaster in East US; 60 poisons, 100 mi of river ; of

650, 1/2 dangerous ; 122 study thwarted by admin: chao heritage, hubby got 100K from massey. chao appt coal exec to head MSHA

(#2 amax mine, dep ast amax and peabody. sludge study boss fired on

inaug day ; 8 crim cts -->2 weakest, one tossed by admin judge so

5600$ fine for billions in damage 123. 8 member team peress ti sign off,

one w/ wife w cancer, Spadaro invstigator lured to DC for mtg, his

office searched (frames pix of family) changed locks"Gestope'd me" 123

OSC invest whtleblower; demotred and reassigned

1972 buff ck coal slurry dam collapse lilled 120 ppl. 2000 Massey 300 m gallon,

biggest disaster in East US; 60 poisons, 100 mi of river ; of 650, 1/2 dangerous ;

122 study thwarted by admin: chao heritage, hubby got 100K from massey. chao appt

coal exec to head MSHA (#2 amax mine, dep ast amax and peabody. sludge study boss

fired on inaug day ; 8 crim cts -->2 weakest, one tossed by admin judge so 5600$

fine for billions in damage 123. 8 member team pressurred to sign off, one w/ wife w

cancer, Spadaro investigator lured to DC for mtg, his office searched (frames pix

of family) changed locks "Gestope'd me" 123  OSC invest whistleblower; demoted and

reassigned

....

===<a href="http://www.ucsusa.org/our-work/center-science-and-democracy/promoting-scientific-integrity/coal-slurry-spill.html">http://www.ucsusa.org/our-work/center-science-and-democracy/promoting-scientific-integrity/coal-slurry-spill.html</a><ol id="crumbs" class="clearfix"><li class="crumb crumb-first"><a href="http://www.ucsusa.org/our-work/center-science-and-democracy">Center for Science and Democracy</a></li><li class="crumb crumb-last"><a href="http://www.ucsusa.org/our-work/center-science-and-democracy/promoting-scientific-integrity">Promoting Scientific Integrity</a></li></ol><div class="field field-name-title field-type-ds field-label-hidden view-mode-full"><div class="field-items"><div class="field-item even"><h1>Coal Slurry Spill Investigation Suppressed</h1></div></div></div><div class="field field-name-field-title-sub field-type-text field-label-hidden view-mode-full"><div class="field-items"><div class="field-item even">Political interference, whistleblower retaliation, and lack of transparency at the Mine Safety and Health Administration</div></div></div><div class="field field-name-init-toc field-type-ds field-label-hidden view-mode-full"><div class="field-items"><div class="field-item even">

</div></div></div> NOTE: The following is one of <a href="http://www.ucsusa.org/node/4730">a series of case studies</a>

produced by the Union of Concerned Scientists' Scientific Integrity

Program between 2004 and 2010 to document the abuses highlighted in our

2004 report, <a href="http://www.ucsusa.org/node/4127">Scientific Integrity in Policy Making</a>.

<hr />

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.

<h3>MSHA Initial Investigation of Coal Slurry Spill Begins</h3>

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

<h3>Political Interference in the Accident Investigation</h3>

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

<h3>Whistleblower Retaliation</h3>

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

<h3>Lack of Transparency at MSHA: Mine Safety Data Withheld</h3>

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===

    </font><table width="1222" height="10725" cellspacing="0" cellpadding="3" border="0" align="center"><tbody><tr><td colspan="2" class="showdate"><font size="4" face="Times New Roman">January/February 2005<br /></font></td></tr><tr><td colspan="2"> <font size="4" face="Times New Roman"><span class="storyhead"><b>"Under

Mined - When a flood of toxic mining sludge wreaked havoc in

Appalachia, how did the White House respond? By letting the coal company

off the hook and firing the whistleblower."

By Clara Bingham

<a class="type1" href="http://www.jackspadaro.com/news_articles/2005/01_02_05/wamthly01_02_05.pdf">[print as .pdf 148K]</a>

    </td></tr><tr><td valign="top"><font size="4" face="Times New Roman">

On Oct. 11, 2000, in Inez, Ky., a town of 500 in the heart of the

state's coal fields, a coal-waste reservoir the size of 306 Olympic-size

swimming pools sprang a leak. Within six hours, 300 million gallons of

thick sludge had flooded out of the Big Branch Refuse Impoundment, a

hilltop facility owned by Martin County Coal, and into two tributaries

of the Big Sandy River, which courses along the Kentucky-West Virginia

border before emptying into the Ohio River.

The gooey mixture of black water and coal tailings traveled

downstream through Coldwater and Wolf creeks, and later through the

river's main stem, Tug Fork. Ten days later, an inky plume appeared in

the Ohio River. On its 75-mile path of destruction, the sludge

obliterated wildlife, killed 1.6 million fish, ransacked property,

washed away roads and bridges, and contaminated the water systems of

27,623 people. Incredibly, no lives were lost. Even so, the EPA declared

the spill the largest environmental catastrophe in the history of the

southeastern United States. In fact, the Inez disaster was almost 30

times larger than the infamous Exxon Valdez tanker spill, which dumped

11 million gallons of oil into Alaska's Prince William Sound.

The company that owned the waste impoundment, a subsidiary of

Massey Energy, the fourth largest coal producer in America, claimed that

the flood was caused by an "act of God." Jack Spadaro, superintendent

of the National Mine Health and Safety Academy, a training facility for

the Mine Safety and Health Administration (MSHA) based in Beckley, W.

Va., was part of the team assembled by MSHA to investigate. Working with

eight colleagues from MSHA, an arm of the Department of Labor that

regulates the coal industry, Spadaro began interviewing engineers,

miners, and mine company officials to determine what had caused the

impoundment to break. The investigation, which began on the eve of the

2000 presidential election, had within a month begun to collect evidence

that Spadaro's team believed could prove negligence on the part of

Martin County Coal.

But on Jan. 18, 2001, two days before President Bush's

inauguration, Spadaro and his team were abruptly assigned a new boss to

lead the investigation: Tim Thompson. A career MSHA official, Thompson

had not participated in any of the investigation's interviews. However,

he was known to be a political insider, according to two of the probe's

staffers. Tim was a good soldier, said one long-time MSHA employee. "He

would take orders. He was cooperative with headquarters to a fault."

(MSHA officials declined to be interviewed for this story, citing agency

policy not to discuss personnel issues with members of the press).

Immediately after taking charge, Thompson told Spadaro's team that they

had one week to conclude the investigation. The announcement came as a

shock. Spadaro and his colleagues still had more than 30 witnesses to

interview, and they had counted on having four or five more months to

complete their work.

Even after the investigation was shut down by Thompson, Spadaro

continued to fight the administration for three years - a bullheaded

crusade that made him an Appalachian folk hero, but eventually got him

thrown off the case, reassigned, and may have ultimately helped get him

fired. As Spadaro later told The Washington Monthly, from the initial

months of the investigation, he had felt that his superiors at MSHA were

covering up "the fact that Massey had known for the past six years that

there was a potential for the breakthrough in the impoundment." The

slurry spill and the controversy surrounding Spadaro's aborted

investigation has sparked several media probes, most prominently by

Salon and "60 Minutes." But a further investigation by The Washington

Monthly sheds new light on several aspects of the case, revealing Massey

Energy's financial ties to the Bush administration, the efforts of MSHA

officials to quash a media inquiry into the case, and the extent of the

retaliation against Spadaro.

The government's file on the Martin County impoundment break has

now been closed, and Massey Energy has paid only minimal fines to the

federal government. MSHA declined to pursue the most serious charges of

negligence that Spadaro's investigation developed, or to fix the lax

systems of oversight that led Spadaro to blame the agency itself for

contributing to the disaster. And though it has left the whistleblower

weary, retired, and bitter, Spadaro's struggle reveals the rough

realities faced by regulators fighting a favored industry under the Bush

administration.

Coal Creek corruption

Martin County Coal's Big Branch Refuse Impoundment, a huge

reservoir of liquid waste from a nearby coal-cleaning plant, sits out of

sight of neighboring houses. It is used to gather slurry - a mixture of

mud, coal waste, water, and cleaning chemicals that is a byproduct of

the process of washing coal - which is dumped into large holding ponds

held back by dams. The steep mountainous terrain in Appalachia has

always made the region vulnerable to floods caused by logging, erosion

caused by coal mining, or leaks in slurry ponds.

At 3:00 a.m. on Oct. 11, 2000, pressure from the full impoundment

caused the barrier wall between the slurry pond and the underground

mine to collapse. Sludge inundated the underground mine below and flowed

out into Coldwater and Wolf creeks.

At 5 a.m. on Oct. 11, 2000, Inez resident Abraham Lincoln "Linc"

Chapman, up early to bow-hunt for deer, was driving his Chevrolet

pick-up truck alongside Coldwater Creek. As he passed the entrance to

the Big Branch Refuse Impoundment, a security guard waved him down. When

he stopped, the guard informed him that he couldn't go any further up

the road. Chapman then noticed that a tide of thick black sludge had

risen to the level of a little wooden bridge over the creek.

Chapman asked the guard whether he had notified people

downstream. The guard had not - he had no idea how much more sludge was

coming. Chapman drove downstream to his house, which sits on a narrow

two-acre strip of land bordering the creek. In Appalachia, the rare

pieces of flat land, usually adjoining a creek or a river, are called

bottoms. Chapman calls his land a "corn bottom" because it was where his

family farmed corn when he was a boy.

Chapman took a flashlight to the creek, which coursed five yards

from his back door. He watched with his wife and two children as the

black sludge comin' real slow, just like lava, began to reach the top of

the bank. The sludge in the creek kept rising all day and into the

night until it reached five feet above water level and overflowed into

Chapman's yard. By the next morning, Chapman realized that there was no

water left in the creek, "it was just solid slurry." Chapman watched the

seven-acre yard of his neighbor slowly fill with the sludge, like dough

poured into a baking pan.

Chapman had long been aware that living directly below a

coal-waste impoundment was risky. In fact, if the break hadn't been

preceded by weeks of drought, and if the slurry had leaked into only one

stream instead of two, the velocity of the flood could have been

violent enough to kill hundreds of people living along heavily-populated

Coldwater Creek.

For the next three months, the Chapmans and their neighbors

endured the mining company's clean-up operation. Huge bulldozers and

shovels scooped the sludge out of the creek and their front yards,

tearing gas lines and knocking down trees. Chapman put his spacious

5,500-square-foot house on the market a few months after the flood

because his 9-year-old daughter Paige didn't want to live there anymore.

She complained of recurring nightmares that the house was buried in

coal sludge and refused to sleep in her room on the ground floor. Two

years later, when there were still no offers on the house, Chapman took

it off the market. "This area used to be the most sought after property

in Martin County - it used to be the most expensive real estate, but now

no one wants it," Chapman says.

Today, although Chapman's neighbors' front yards are green again,

and clear water flows through Coldwater Creek, there are still no fish

in sight. "We had frogs, turtles, muskrats, minks, Kentucky spotted

bass, channel cat fish, big mouth bass, mud cat, minnows, creek chubs

that we used for bait," recalls Chapman, an avid hunter and fisherman.

When Chapman digs a stick into the creek bed, it emerges covered in

gummy, black coal sludge, which is buried an inch below the brown silt

of the creek bed.

Massey Energy maintains that the slurry is no more toxic "than

the dirt outside one's home." But Chapman, who once worked for coal

mines, believes otherwise. He cites the presence of such toxins as

mercury, arsenic, lead, and iron in the sludge. "We know better than to

drink the water, but we have no choice but to bathe in it." The town

water, treated at a nearby processing plant is sanctioned as drinkable,

even though in 2001, an EPA study detected up to 30 times the normal

levels of arsenic and mercury in the Inez community's groundwater

supply.

Massey's miasma

In the course of the investigation, which also included reviewing

piles of engineering reports, Spadaro was haunted by his memories of an

earlier catastrophe, now infamous in coal country, known as the Buffalo

Creek Disaster. In 1972, Spadaro, then a research engineer for the West

Virginia School of Mines, had been dispatched to investigate a coal

slurry spill in Buffalo Creek, W. Va. A break in the coal waste dam

there had caused a 20-foot column of black sludge to hurdle down through

Buffalo Creek's narrow hollow, twisting and crushing homes, leaving

4,000 people without shelter, and killing 125.

The Pittston Mining company, which like Massey claimed its mishap

had been caused by an an "act of God," was later found liable for the

break in the dam, but escaped major sanctions. After Buffalo Creek,

Spadaro had spent six months interviewing company employees and flood

survivors, and watching bodies being picked out of the rubble. The

experience has stayed with him. "Memories of those conversations are

still with me," he said recently. "Buffalo Creek wasn't necessary. The

neglect, the disregard...of the mine operators caused it."

In the Martin County Coal flood, Spadaro began to suspect a

similar pattern of neglect. By April 2001, his team of MHSA

investigators had drafted most of its report and was debating where to

lay blame. The engineers believed it was appropriate to levy eight

different citations against Massey Energy, but Thompson disputed all but

one of those charges. One particularly fierce debate ensued over a

charge related to the thickness of the barrier wall. After a smaller,

but still significant leak in the Big Branch Impoundment in 1994, Massey

had been required to submit an application for a permit to reopen the

impoundment. The company presented MSHA with a map that showed a 70-foot

barrier wall between the impoundment and the abandoned underground mine

beneath the slurry reservoir.

But after the 2001 flood, the investigation hired an independent

contractor to confirm the thickness of the barrier wall. Drilling

revealed that in some spots the wall was only 15 feet deep. If this had

been known earlier, Massey would never have gained a permit to reopen

the impoundment. Massey denies that it misled regulators. However,

Spadaro strongly suspects that Massey knew how thin the wall was. His

team was just beginning to conduct interviews with miners who had worked

in the area where the walls were particularly thin before the

investigation was cut short.

Several of the engineers on the investigation team argued that

Massey should be cited for misrepresentation. The coal company officials

could then have been prosecuted for knowing violations of federal mine

health and safety laws, which bring steep fines. The discrepancies

between the map of the barrier wall on Massey's permit application and

the actual dimensions of the wall as measured by an independent

contractor was the strongest piece of evidence the investigators felt

they had against the company because the discrepancy could be proven and

documented. When Thompson fought bitterly against including a citation

for the mapping discrepancy, some members of the investigative team

became suspicious of his motives. "It looked like he was trying to

protect the coal company," said one team member who asked for anonymity.

"It looked like pure politics."

Frustrated by what he described as Thompson's "badgering" of his

fellow team members, Spadaro asked everyone but Thompson to leave the

room. He then blew up at Thompson, accusing him of undermining the

credibility of the investigation, and threatened to leave the team.

Another section of the investigators' report that Thompson

disputed concerned oversight. Spadaro's team had found a memo written

after the 1994 leak by an MSHA employee named Larry Wilson. Wilson had

made nine recommendations for fixing flaws in the impoundment, pointing

out that the seals between the impoundment and the underground mine were

inadequate, and that the company maps that showed the proximity of the

mine to the impoundment were inaccurate. Major safety improvements were

needed, Wilson had concluded: "If the water in the impoundment broke

through and these seals were inundated, it is very possible that they

would fail and a loss of life could occur." Six years later, Spadaro's

team could find no evidence that Massey Energy had addressed MSHA's

recommendations. Furthermore, the investigators discovered that MSHA had

never followed up with Massey to check on the implementation of those

recommendations.

Spadaro saw MSHA's failure as evidence that the regulatory system

was badly broken. But he believed that neither the Bush

administration's MSHA nor the coal companies were interested in reform.

Approximately 225 coal-waste impoundments sit precariously over

abandoned mines. Making them safe would involve tightening regulations

and closing loopholes. Proposed alternative methods for disposing of the

coal waste are unlikely to be adopted because they would cost the coal

industry more. Preventative measures, such as drilling to measure the

true thickness of a barrier wall between an impoundment and an

underground mine, would also be costly.

According to an official internal report, on the same day that

Spadaro took Thompson to task for undermining the investigation's

credibility, Thompson received a call from his superiors at MSHA

headquarters in Arlington, Va. After Thompson hung up the phone, the

team of investigators assembled in his office watched as their boss

crossed out a section of the report that criticized MSHA for its lack of

oversight. Dumbfounded and angry, Spadaro packed up his papers and left

the room: "I went to my office, and wrote my letter of resignation

[from the investigation]."

Who's the boss

In Thompson, Spadaro had confronted one face of a new regulatory

bureaucracy that had fundamentally shifted its approach to mine

oversight in the four months since the new administration had taken

office. George W. Bush had won the presidency in part thanks to an upset

victory in West Virginia (with help from the coal industry), and his

administration had begun to set new pro-coal policies in motion. In his

first few months on the job, Bush unveiled an energy plan that promoted

the use of coal, backed off his campaign pledge to cut coal-related

carbon-dioxide emissions, and loosened restrictions on coal mining's

most environmentally destructive practice - mountaintop remova - which

tears off huge masses of rock in order to mine valuable low-sulfur

underground coal seams. Coal companies prefer this method because it can

be done cheaply, relying on heavy machinery and using only minimum

man-power. In 10 years, environmentalists predict that an area

equivalent to the state of Delaware - 2,200 square miles - will have

been cut off the mountains of Appalachia. Coal had done well under

President Clinton - it was his administration that began to soften the

mountaintop removal regulations, and his MSHA that had been lax in

checking up on the Big Branch Impoundment wall. But coal executives,

threatened by Vice President All Gore's green background and his pledge

to increase taxes on fossil fuels, thought they could get a better deal

with the Republicans - when they raised a record $3.8 million dollars

for the 2000 federal election, 88 percent went to the GOOP. At the

annual meeting of the West Virginia Coal Association a few months after

Bush's inauguration, the group's director told 150 industry executives,

"You did everything you could to elect a Republican president. [Now] you

are already seeing in his actions the payback."

Massey Energy, Martin County Coal's parent company, gained a

front-row seat to the new Bush administration when it invited Jams H.

"Buck" Harless to join its board in 2001. Harless, a West Virginia coal

and timber baron, had raised $275,000 for Bush's 2000 campaign, given

$5,000 for the Florida recount, and contributed $100,000 to the

president's inaugural fund. Bush nicknamed Harless "Big Buck" and

invited him to join the administration's transition task force on

energy. "We were looking for friends, and we found one in George W.

Bush," Harless told The Wall Street Journal.

Bush also demonstrated his friendship to industry leaders when he

awarded the top job at MSHA to an executive with Utah's Energy West

Mining Company, David Lauriski, whose top two deputies would also be

recruited from mining companies. The woman who would become their boss,

Secretary of Labor Elaine Chao, is the wife of Kentucky's Republican

senator Mitch McConnell, a long time political ally of coal companies.

Chao soon hired several of McConnell's Senate staffers to work in top

positions at the Department of Labor. According to Common Cause, from

1997 to 2000 - when McConnell was chairman of the National Republican

Senatorial Committee - the coal industry gave $584,000 to the NRSC. In

2002, while the company was still under investigation, Massey Energy

would give the committee a first-time donation of $100,000, although by

then McConnell was no longer the chairman. McConnell left his

fingerprints on his wife's agency despite their insistence that there

was no conflict of interest. Chao's chief of staff, Stephen Law, was one

of McConnell's top aides and Stuart Roy, Chao's spokesman, was formerly

McConnell's press secretary. Another former McConnell staffer, Andrew

Rajec, was hired to work as a special assistant at MSHA, where he

attended several meetings on the Martin County report. In 2002, a

Kentucky mine owner named Bob Murray threatened to have some MSHA

inspectors fired because they had cited his mines for failing to comply

with regulations. "Mitch McConnell calls me one of the five finest men

in America," Murray told the inspectors, according to local press

accounts. "And the last time I checked, he was sleeping with your boss."

Signed, sealed, and delivered

Spadaro realized that the industry-friendly climate at MSHA meant

that his findings on the Martin County flood were not going to be heard

- which meant, he believed, that the only way to find justice was to go

public. On April 11, 2001, the Charleston Gazette and the Lexington

Herald-Leader ran stories about Spadaro's resignation from the

investigation. They quoted him calling the report a whitewash. "I do not

believe," Spadaro wrote in his resignation letter, which the newspapers

published, "that the accident investigation report, as it is now being

developed, will offer complete and objective analysis of the accident

and its causes." Spadaro's decision to go public struck his colleagues

as suicidal, and no one else followed him.

The next week, Secretary Chao responded to the press reports

about the internal war at MSHA by telling a reporter: "It's time to call

off the MSHA food fight over the Martin County Coal Slurry

investigation." Chao requested that the Department's Inspector General

review Spadaro's complaints, but her characterization of the

investigation controversy as a "food fight" was not well received by the

local press. A Louisville Courier-Journal editorial accused Chao of

trivializing the Martin County catastrophe and its victims: "If water

supplies had been ruined in a bunch of eastern seaboard suburbs, instead

of in mountain hollows, would she have dared to be so flip?"

Even with Spadaro off the case, Thompson continued to run into

problems with the investigative team. When he assigned four of its

engineers to draft a list of violations, they presented him with eight,

of which Thompson would only agree to two. For the next several months,

Thompson stopped meeting with the investigators altogether and didn't

give them access to information about the report's progress until it was

completed and ready to be signed.

In October 2001, Thompson asked the seven remaining team members

to sign the report without seeing the final draft. According to two of

the probe's staffers and an internal report, when Thompson asked them to

sign it blind, four in the office refused. After a conference call with

David Lauriski, MSHA's top official in Washington, the four dissenting

team members were given permission to read the report, but only to check

for typographical errors. When the engineers reviewed the final drafts,

they saw that Massey Energy had only been cited for two relatively weak

violations - the charge that it had provided inaccurate maps did not

make the shortlist. After Lauriski told them that it would be good for

the agency if they signed the report, all of the investigators complied.

"I didn't think it would be a good career move not to [sign],: one of

them told me. (Lauriski declined to be interviewed for this story,

citing MSHA policy).

In April 2002, MSHA levied $110,000 in fines upon Massey Energy -

$55,000 (the maximum fee allowable) for each of two violations for an

unwarrantable failure to prevent the spill. (A Kentucky administrative

law judge would later reverse one of the charges, proving how weak it

was, and reduce its fine from $55,000 to $5,600.) Had all the violations

Spadaro's team found been included in the final report, Massey would

have been subject to far heavier fines, increased legal liability, and

possible criminal penalties. And MSHA would have produced a report that

blamed itself for failing to adequately police the industry - an

embarrassment for an administration that was fighting to loosen

restrictions on coal companies.

Of coal and cronyism

Spadaro returned to his day-to-day government job as

superintendent of the National Mine Health and Safety Academy. But after

Martin County, he had begun to see himself as a whistleblower on a

mission to draw attention to the corruptions of the Mine Health and

Safety Administration. First, he continued to press the Martin County

case, charging, in his conversations with reporters and in the letters

he sent to the Department of Labor's Inspector General, that MHSA had

covered up Massey's transgressions. Then in May 2002, Spadaro launched

another sequence of letters to the IG claiming that two independent

contractors had been hired by the academy without any competitive bid

process. The contractors, who taught educational training programs for

mining inspectors, were close friends and old business associates of

Lauriski and his two deputy assistant secretaries, John Caylor and John

Correll. Spadaro followed up on his two May letters to the Inspector

General with another one in August in which he said that, on August 1,

Caylor had threatened to fire him if he didn't stop raising questions

about the no-bid contracts.

Just one month after Caylor's threat, Spadaro's government credit

card and travel records were audited. It turned out that between

November 2001 and July 2002, he had used his government credit card to

take out 13 cash advances when he needed money to entertain dignitaries

and students at the academy. The processing fees for those 13 cash

advances totaled $22.60. Spadaro paid his bills on time. In October

2002, Spadaro was told that his abuse of the credit card was a "serious

offense." One year later, he was informed that he would be suspended for

three days for the crime of making cash advances when he wasn't on

official government travel.

Ellen Smith, the editor of Mine Safety and Health News, an

independent newsletter that covers MSHA, stumbled onto the story. Smith,

who knows far more about this small, obscure agency than any other

journalist, had been looking through the department's employee credit

card violation records, which she had obtained under the Freedom of

Information Act. She was working on a story about employees who did not

pay their credit card bills, and found Spadaro's name on the very bottom

of the list of 50 offenders. "Jack Spadaro's name was on that list, but

it was for such a miniscule amount of charges, and he had always paid

them back," said Smith. "He wasn't the kind of person I was targeting in

my story. I was targeting people who didn't pay back." Then Smith

discovered that Spadaro, unlike many of the more serious offenders, was

being disciplined for his credit-card offenses. "After I started asking

questions about Jack, they asked me to package up all of the FOIA

information they had sent me and send it back to them so they could

sanitize it." Smith consulted a lawyer first and refused to return the

files. Fearful that the government might try to confiscate the material,

she made a copy and gave it to a friend to keep safely.

On Oct. 28, 2002, Smith published an article claiming that

Spadaro had been unfairly targeted for his credit-card problems because

senior agency officials had tabbed him as a troublemaker since the

Martin County fiasco. Smith showed that 50 MSHA employees had charged a

total of $51,001 on their government credit cards which they never paid

back. One employee even charged $2,000 on his card at Value City

Furniture. Spadaro's case was so minor in comparison to the others that,

Smith wrote, "it appears as though the alleged 'credit card offenses'

might be an attempt to get rid of a whistleblower."

Smith continued to write about several of Spadaro's complaints -

the Martin County flood report, the sole-source contracting, and an

ignored sexual-harassment case at the academy. After she had published

three stories based on Spadaro's information, Lauriski paid Smith a home

visit. The assistant secretary for MSHA and one of his deputies

traveled all the way from Washington to the little town of Mendon,

outside Rochester, N.Y., for an "off-the-record" discussion about

Smith's newsletter. One of the items on Lauriski's agenda was Spadaro.

"They brought two letters from people at the academy who had complaints

about Jack and crossed out their names,' said Smith. "At MSHA there are

always complaints. If two is best you can do out of the whole academy,

that's pretty weak. They just kept on saying to me there are things

[about Jack] that you don't know. We can't tell you because it's a

personnel issue. It's a privacy thing. They kept saying, 'you aren't

accurate here or there,' and I said 'show me' and they wouldn't so I

said, 'then you can't tell me I'm not accurate.'"

Bond, Sam Bond

In the winter of 2003, two reports came just short of vindicating

Spadaro. In January, an internal MSHA review admitted that the agency's

oversight of the Martin County slurry impoundment had been lax, but did

not lay blame for the flood on the agency. Then, on Feb. 19, 2003, the

Labor Department's Inspector General released its report on the Martin

County investigation. The IG confirmed some of Spadaro's allegations:

that MSHA officials had backed off six out of eight citations against

Massey Energy, that investigators were denied access to the files, and

that several members of the investigative team had initially refused to

sign the report because they were prohibited from reading it. The IG

even reported that Spadaro "may have" been subjected to retaliation by

higher ups, but concluded that the Martin County report was fair and

accurate, and that Spadaro had not substantiated his charges that it was

a whitewash.

But the IG chose to invoke exceptions in the federal open-records

law and censored almost half of the 26-page document (a step very

rarely taken), leaving more questions than answers. The credibility of

the report's conclusion that there had been no cover-up was therefore

hindered by its own cover-up. A scathing editorial in the Louisville

Courier-Journal accused the IG of withholding important information:

"Public confidence in MSHA won't be bolstered by a report that's full of

black lines where information should be."

On June 4, 2003, Spadaro drove up to MSHA headquarters in

Arlington, Va., for a routine administrative meeting. When the meeting

ended, he was told to report to his boss, Jeff Duncan, the director of

Education Policy and Development. It was getting dark and Spadaro

remembers that no lights were on in Duncan's office. When Spadaro walked

in, he noticed that Duncan had company - a woman from the personnel

office and a lawyer from the Department of Labor. Both of these

strangers sat quietly.

"I need to talk to you about Sam Bond," said Duncan. Bond was an

MSHA mine inspector who had developed multiple sclerosis and could no

longer work in the field. For the past three years, he had been teaching

a course at the academy and living there during the week free of

charge.

"Who gave you the authority to let him stay at the academy for free?" Duncan asked.

"You did, Jeff," Spadaro said, a little thrown.

Then Duncan handed Spadaro a letter and told him that he had been

placed on administrative leave. He was being investigated for abuse of

authority and was forbidden to return to his office or to contact any of

the employees at the academy. Spadaro was stunned. He had never been

warned about Sam Bond. Instead of being disciplined for helping the

disabled inspector, Spadaro expected to be commended for finding a way

to keep Bond working. To Spadaro, the accusation seemed beyond absurd.

Without another word, he stood up and left the room.

When Spadaro called his secretary at the academy to give her the

news, she told him that three MSHA officials were already in his office,

putting files into boxes and confiscating his computer's hard drive.

They had even dismantled the photos of his wife and daughter on his desk

to search for any incriminating documents that might lie inside the

frames. When they had asked to have the locks on Spadaro's office door

changed, the maintenance staff refused. The MSHA officials had to find a

locksmith in the yellow pages.

Worn-down whistleblower

On Oct. 2, 2003, Jack Spadaro was fired. A 10-page memo written

by Frank Schwamberger, deputy director of education policy and

development at MSHA, listed a series of cases where Spadaro had

allegedly abused authority and failed to follow official procedures and

instructions. It detailed complaints from academy employees who were

upset about being forced to move from one office space to another,

employees upset over having to change the scope of their jobs, and, in

one case, being denied a promotion. The memo also detailed the $22.60 in

cash advance fees on Spadaro's government credit card. Spadaro fought

back by filing a grievance with the Office of Special Counsel (OSC), a

federal agency that handles whistle-blower complaints, and four months

later, his status was switched back from termination to administrative

leave.

Spadaro also hired a West Virginia lawyer and filed suit against

MSHA for retaliating against him. In February 2004, he was told that he

would be transferred to the Agency's Pittsburgh MSHA office and demoted.

He appealed the demotion and transfer on the grounds that it was in

retaliation for his whistle-blowing. The OSC ruled that he would have to

work in Pittsburgh while he was waiting for his appeal to be processed.

Rather than move to Pittsburgh, Spadaro decided to give up the

fight. On Oct. 1 - just two months shy of his 28th anniversary as a

federal government employee - he resigned. A serious case of high blood

pressure, lawyer's fees of over $20,000, and frustration with how long

it was taking for his appeal to be decided by the Merit Systems

Protection Board contributed to Spadaro's decision to throw in the

towel. "I'm just very tired of fighting," he said. "I've been fighting

this administration since early 2001. I want a little peace for a

while."

His three-year-fight against the Bush administration may have

cost him his job, but it also made him a folk hero in Kentucky coal

country. "Normally, I don't like federal mining investigators," Linc

Chapman told me. "But it's a shame that some one who stood up for what

was right has to pay for it. Everyone here [in Inez] is like me. They

think Jack got a raw deal. He rocked the boat so they threw him

overboard."

Clara Bingham is the author of Women on the Hill and co-author of Class Action.

© Copyright 2005 <a href="http://www.washingtonmonthly.com/" target="new_window">The Washington Monthly</a></td></tr></tbody></table>==
(CBS) A government whistle-blower says the <a href="http://www.sourcewatch.org/index.php?title=Bush_administration" title="Bush administration">Bush administration</a> covered up the reasons for a toxic coal slurry spill in Appalachia that ranks among the worst environmental disasters in U.S. history. <a href="http://www.cbsnews.com/stories/2004/04/01/60minutes/main609889.shtml" class="external autonumber" title="http://www.cbsnews.com/stories/2004/04/01/60minutes/main609889.shtml" rel="nofollow">[6]</a>

<dl>

<dd><a href="http://www.sourcewatch.org/index.php?title=Jack_Spadaro&action=edit&redlink=1" class="new" title="Jack Spadaro (page does not exist)">Jack Spadaro</a> tells Correspondent Bob Simon that political appointees in the <a href="http://www.sourcewatch.org/index.php?title=Department_of_Labor" title="Department of Labor" class="mw-redirect">Department of Labor</a> whitewashed a report that said an energy company that had contributed to the <a href="http://www.sourcewatch.org/index.php?title=Republican_Party" title="Republican Party" class="mw-redirect">Republican Party</a> was responsible for the 300-million gallon spill.</dd>

</dl>

<dl>

<dd>Simon's report will be broadcast on 60 Minutes, Sunday, April 4, at 7 p.m. ET/PT. Spadaro was until recently the head of the <a href="http://www.sourcewatch.org/index.php?title=National_Mine_Health_and_Safety_Academy&action=edit&redlink=1" class="new" title="National Mine Health and Safety Academy (page does not exist)">National Mine Health and Safety Academy</a> and played a key role in investigating the spill, which was 25 times the size of the <a href="http://www.sourcewatch.org/index.php?title=Exxon_Valdez_disaster&action=edit&redlink=1" class="new" title="Exxon Valdez disaster (page does not exist)">Exxon Valdez disaster</a> in Alaska.</dd>

</dl>

<dl>

<dd>"It polluted 100 miles of streams, killing everything in the streams, all the way to the Ohio River," says Spadaro of the October 2000 spill that affected West Virginia and Eastern Kentucky.</dd>

</dl>

<dl>

<dd>"The Bush administration came in and the scope of our investigation was considerably shortened. I had never seen something so corrupt and lawless in my entire career...interference with a federal investigation of the most serious environmental disaster in the history of the Eastern United States."</dd>

</dl>

<dl>

<dd>Spadaro says his investigation found <a href="http://www.sourcewatch.org/index.php?title=Massey_Energy" title="Massey Energy">Massey Energy</a>, the owner of the impoundment containing the viscous and toxic liquid, knew the containment was weak, and in fact, had leaked once before. The company was going to be cited for serious violations that could have resulted in large fines and criminal charges, Spadaro says.</dd>

</dl>