Sludge Slinging

Sludge spills can be prevented with monitoring, maintenance, and enforcement, yet they continue on a regular basis. In the Ohio River watershed there have been 13 spills on the Little Coal River since 1997; 6 on the Big Coal River since 1987; 13 on the Big Sandy River since 1994; 4 on the Levisa Fork since 1972; 9 on the Tug Fork since 1972; and 3 on the Gauley River since 1970.

Whistleblowers who survive-the effective, legitimate ones like Spadaro-don't go just a little public. He is blowing his whistle as if his bird dogs were running deer.

The worst occurred on October 11, 2000, when Massey's Big Branch sludge reservoir in eastern Kentucky (designed by the same engineers who designed Brushy Fork) collapsed into the underground mine it straddled, blowing 310 million gallons of sludge out the side of the mountain and down 110 miles of the Big Sandy River system, obliterating riparian habitat; killing millions of turtles, snakes, frogs, salamanders, mussels, and fish, including imperiled paddlefish; polluting public water supplies; clogging water-treatment plants; flooding houses; and shutting down schools, restaurants, and laundries. The sludge spread over valleys like lava. Twigs stuck in it remained upright, moving along with the flow. It was the worst environmental disaster in the history of the eastern United States. The governor of Kentucky declared 10 counties a disaster area. Massey blamed God, claiming it was His “act.”

As a member of the team assigned to investigate the disaster, Spadaro accumulated compelling evidence that clears God and implicates both MSHA and Massey (a major GOP contributor). Moreover, an internal report vindicates his findings. At first the team made good progress. It interviewed almost 50 witnesses and plowed through boxes of documents. But things changed under George W. Bush. The new Secretary of Labor, Elaine Chao—wife of Senator Mitch McConnell (R-KY), among the Senate's top five recipients of coal-industry largesse—appointed former mining executive David Lauriski as MSHA's new director. Both his deputy directors are former mining executives. On the first day of the Bush administration, the leader of the investigation team was replaced by MSHA's Morgantown district manager, Tim Thompson. According to Spadaro, among the first words out of Thompson's mouth were: “We're gonna wind down this investigation.” And: “We're not going to allow any arrows to be pointed in the direction of MSHA.” Thompson, however, denies this, saying he “only wanted to move the investigation along.”

The team wanted to interview or reinterview at least 25 more people. “Thompson allowed us six more interviews,” says Spadaro. The team had already met with an MSHA engineer who in 1994 had inspected the Big Branch sludge reservoir and written a memo about its deplorable condition, including major fractures and major leaks. To avoid a “very possible” disaster, he made nine recommendations for remedial action, such as installing devices to monitor the quality and quantity of leaking water and reevaluating concrete seals separating abandoned and active sections of the underlying mine. After MSHA's chief of technical support, Mark Skiles, had read all agency documents related to the sludge reservoir, he wrote the following to Davitt McAteer, then MSHA's director, who had ordered the review: “I would conclude from this investigation that after the 1994 failure that [MSHA] did not follow [the 1994] recommendations.” Skiles's memo—undated but written on October 31, 2000, according to the Department of Labor's Inspector General—was a draft, intended only for internal use, but it got leaked to the press. Spadaro says his investigation team never saw the response—dated October 31, 2000—until May 2001, when it seemed to appear out of the ether.

“There wouldn't have been a spill if MSHA had followed those recommendations,” Spadaro told me. “Not only did they ignore them, they fabricated a response and backdated it to cover themselves.” He said he had recently turned over the proof to the proper authorities. When I asked who those authorities were, he said he'd been instructed not to say, but the previous day he'd canceled an appointment with me in order to help the U.S. attorney with the criminal grand jury investigation into the spill. When I phoned Lauriski's office to get the agency's side of the story about this and all other charges by Spadaro, I was referred to MSHA's assistant secretary for public affairs, Bob Zachariasiewicz, who declined to comment, although he went on and on about Spadaro's alleged transgressions.

Zachariasiewicz also refused to answer my questions about the Skiles memo. But if MSHA's response wasn't a backdated fake, all personnel involved in drafting it should get Bravo Awards for snapping out of their bureaucratic torpor and moving at a speed never before seen in federal government. In the space of a single workday MSHA supposedly faxed or otherwise delivered Skiles's three-page document with 20 pages of attachments from Arlington, Virginia, to the agency's Pikeville, Kentucky, district office; analyzed the contents; and hatched a five-page response, which painstakingly rebuts each point. Pikeville district manager Carl Boone, who was in the office in October but was transferred two months later, can't recall whether or not he wrote the response without “going through [his] files.” McAteer, who quit after Bush was elected but was on the job in October 2000, doesn't recall seeing it. The Inspector General reports that Celeste Monforton, then special assistant to the director, first saw an unsigned version of the response in April or May 2001 and questioned Bob Elam (the acting director after McAteer) about it, and that “later that same day, Elam provided Monforton with a signed copy.” Monforton informed me there had been pressure on Skiles to retract his memo.

The investigating team wanted to charge Massey with 10 federal violations. But MSHA issued two. Now, because the two were relatively weak, an administrative law judge has dropped one, and the federal fine has been reduced from $55,000 to $5,600—this for a spill of toxic waste about six times the volume of oil lost from the Exxon Valdez. “From January 2001 through October of 2001 there was constant intervention by top management in formulating the violations and the conclusions of the report,” says Spadaro, who sat in on meetings after he'd resigned from the team. “In determining responsibility and whether there was or was not negligence, the report failed.” So he refused to sign it and, on April 11, 2001, quit the team, stating in his letter of resignation that the investigation had found Massey to have “submitted incomplete and inaccurate information to [MSHA] over a number of years, but Mr. Thompson does not want to issue any violations to the company or to thoroughly discuss this shortcoming,” and expressing concern about a concerted effort “to leave unreported unexamined serious defects.” This kind of language did not go over well with MSHA brass.

Nor did the five complaints Spadaro filed with the Labor Department's Inspector General, nor the two whistleblower complaints he filed with the Office of Special Counsel. He charged that MSHA director David Lauriski and deputy director John Caylor had been passing out illegal sole-source, no-bid contracts to their friends. One contract, alleges Spadaro, went to one of Lauriski's pals for an academy course. “All district managers and other supervisors have been encouraged by Mr. Dave Lauriski . . . to attend these [$1,025 per person] classes,” Spadaro wrote. He told me that the government sometimes had to pay more than $40,000 per week. “The information was nowhere near as useful to mine inspectors as the accredited 25-week-long entry-level training courses we already offered.” In a memo to the Inspector General's office alleging other violations, Spadaro wrote: “Mr. Caylor threatened me and said that he would have me ‘taken out of here' if I interfered with the contracts.”

When I asked Monforton if she'd heard any talk from Bob Elam and others about punishing Spadaro for quitting the Big Branch investigation and for publicly criticizing MSHA, she said: “I can't recall their exact words, but there was definitely word in the air that they were going to get Jack for doing this.”