- Citing Repeated Presentation of False Information By DEP to BEP and JSCENR BOWKER ASSOCIATES HAS CALLED FOR A STOP THE CLOCK ON CONTINUED REVIEW OF THE DRAFT MINING RULE
- Maine’s Statute & It’s Draft Implementing Rules Score Poorly on Catastrophic Failure Risk Assessment
- Maine’s Pristine Public Lands In Statutory Limbo: Large Scale Metallic Mining On Public Lands Presently Authorized Under Relaxed Environmental Law
- SAMARCO PANEL ATTRIBUTES PRIMARY CAUSE OF FAILURE TO INEFFECTIVE SEPARATION OF SLIMES AND SANDS AND INADEQUATE DRAINAGE OF SANDS
- Share Holder Litigation Puts Spotlight On Environmental Risk
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Citing Repeated Presentation of False Information By DEP to BEP and JSCENR BOWKER ASSOCIATES HAS CALLED FOR A STOP THE CLOCK ON CONTINUED REVIEW OF THE DRAFT MINING RULE
FOR IMMEDIATE RELEASE: September 16, 2016 CONTACT: Lindsay Newland Bowker, Managing Director, Bowker Associates, Science & Research In The Public Interest 207 367 5145 firstname.lastname@example.org
The following letter was sent by Bowker Associates Managing Director, Lindsay Newland Bowker to DEP Policy Director Jeff Crawford who, along with former Deputy Commissioner Heather Parent, had falsely testified to the BEP and the legislative committee of jurisdiction that above ground tailings facilities are temporary structures removed at closure. Such facilities are the leading cause of mine failure at a catastrophic level and such failures occur predominantly during operations and arise primarily from deviation from best knowledge, best practice and best known technology for the geology, climate, geochemistry of the deposit. Both Mr. Crawford and former Deputy Commissioner Heather Parent were advised immediately after their testimony last session (on the original version of LD750) of the error in their advice and its enormous consequence. They were specifically apprised in writing that such facilities are permanent and key to environmental risk management and public liability risk management. Mr. Crawford repeated the false information in his briefing to the BEP on August 18th.
This letter to DEP Policy Director Crawford, copied to LURC Executive Director Livesay, DEP Commissioner Paul Mercer and DEP Deputy Commissioner Melanie Loyzim, State Attorney General Janet Mills and JSCENR Co-Chair Dr. Tom Saviello allows that the adherence to this misinformation may have been a matter of inexcusable lack of due diligence as the facts of the permanence and vulnerability of tailings impoundments are extremely well known,well documented and undisputed. Michigans statutes and rules have been much used as a reference by DEP and JSCENR and were the basis of draft rues prepared for DEP by North Jackson, an obscure minor mining subcontractor in Michigan. Those Michigan rules stipulate that all tailings impoundments are to be removed at closure. That is not practice, however. Indeed there is no known incident in history where dismantling and removal of a tailings facility is a planned event. That Michigan directive, which occurs in the context of a mandate for return at closure to pre mining state and pre mining ecosystem function, presents nearly insurmountable technical and economic and environmental issues.
Although Maine has a similar statutory mandate on return to pre mining condition and function the DEP rule itself lacks this specific mandate on tailings impoundment removal at closure .DEP Policy Director Crawford continues to assert it as an ordinary assumed general practice, which it most definitely is not.
The letter urges that DEP stop repeating this false information, makes in writing corrections and apologies to JSCENR and the present and former BEP explaining how senior DEP officials came to have such a fundamentally importantly wrong concept of tailings management. It further urges DEP to stop the clock, withdraw the rule from further consideration and exercise due diligence by retaining an independent multi faceted expert panel to lay down the basics of modern metallic mining statutory and regulatory frameworks from which further informed action can be considered by all stakeholders.
In private correspondence initiated with us by JSCENR Co-Chair Dr. Tom Saviello, Bowker Associates laid out a specific panel and specific work products. Prospective panel member,s all globally revered and respected in their separate disciplines, had agreed to serve and make room in their schedules to deliver a timely work product. Many weeks before DEP announced its new draft rule, Dr. Saviello wrote that he had presented the concept to DEP and received no response.
Dear Mr. Crawford:
On three occasions briefing the BEP and the JSCENR you have stated incorrectly that tailings impoundments are removed at closure. Deputy Commissioner Loyzims predecessor Heather Parent made this same false statement to JSCENR in the course of the public hearing on the original version of LD750. There is, of course, no transcript of the JSCENR proceedings but as you know we have all of your testimony and Ms. Parents on video so there is an exact record of what you have repeatedly and falsely advised the BEP and the JSCENR.
I see now where you and former Deputy Commissioner Parent may have come by this wrong and crucially consequential impression. In a recent review of the Michigan statute and rules ( in connection with our risk assessment of catastrophic failure for mining legal frameworks), I notice for the first time that Michigan stipulates that all structures including tailings impoundments must be removed at closure . This language is in the context of a similar but much clearer closure standard than is given in Maine’s Statute. Michigan’s standard, like New Mexico’s , is that the site must be returned to its pre mining state with pre mining function of its eco system.
Without this specific clarity in rule or statute that tailings impoundments must be removed at closure, that is not the norm or practice nor are we aware of any case in history where a tailings facility has been removed at closure. Indeed that mandate in Michigan is problematic technically, operationally and environmentally because tailings have different texture and geochemical properties than what once was solid rock. It is widely recognized and understood that an earthen tailings impoundment or any deposition of tailings during operations is permament and that the placement during operations is the permanent placement.
In emergency situations or discovered instability of an existing operating impoundment, tailings have been removed and re deposited elsewhere. In general, however, the deposition and management of tailings should be to a standard that is structurally sound into perpetuity. The tailings themselves should be dry enough and remain dry enough to be structurally sound as a mass in all phases of operation and at closure.
Your misunderstanding on this important and universally recognized fact about tailings impoundments perhaps explains the complete absence of mandates and guidance in the rule on sound design, risk management and oversight of tailings impoundments which are the single largest origin of catastrophic failure. The overwhelming majority of such catastrophic failures occur during operations, not post closure or in stand by and the overwhelming majority of catastrophic tailings failures are man made resulting from deviations from best knowledge, best practice, and best technology for design and management.
It is possible to have a site with no tailings through off site processing of all ore as at Flambeau in Wisconsin where a small open pit was reclosed and recapped at closure with stockpiled spills and overburden.
That of course reduces risks of environmental harm and loss considerably and greatly simplifies the return of a mine site to its pre mining state as mandated in our statute ( that, by the way, would not include mowing into perpetuity in a wilderness area).
The Mt Polley Dam Review Committee, charged with examining the causes of failure of the August 2014 failure in British Columbia, declared slurry deposition “an out moded technology” advocating that the standard for all land based tailings be that they have their own structural integrity rather than relying on the wall of the impoundment. Pre processing methods like filter press pioneered at Greens Creek in Alaska, Paste Thickening or dry stack can attain this inependent structural integrity if managed properly and if the tailings output is viable for these technologies ( which is often not the case). Economically marginal mine plans and expansions, however, cannot afford these technologies and that is a central policy issue any modern legal framework for mining must examine closely and address. In the creation of this statute and these rules that due diligence has not occurred.
Mr. Crawford, having stumbled on this phrase in the Michigan rules with which I know both the DEP and the JSCENR are very familiar, I now see that your misinformation to BEP and JSCENR ( and former Deputy Commissioner Parent’s as well) was a lack of basic due diligence and not an intentional misrepresentation. The facts I lay out above are so plain and so universally known and undisputed that there is still grave fault on DEP’s part on “due diligence” but I am satisfied that the misinformation derives only from that lack of even basic due diligence.
In the workings of law in any state, the agency charged with implementing a statute and writing its rules is presumed to have superor knowledge and indeed that is essential. Applying that to the high envionemntal liability, high public liability risk where that superior knowledge clearly does not exist and has not been sought is extremely dangerous.
I urge you to immediately rectify your past and very recent mis advice to the JSCRENR and the BEP present and past by a formal letter correcting your mis advice and explaining how you came by that understanding that tailings impoundments are temporary structures used only in the course of operations and then removed.
In light of the gravity of consequence of this lack of due diligence on the part of DEP to the major public liability environmental security risks of metallic mining in a high Sulphur high arsenic VMS deposit I request that DEP stop the clock and withdraw the rule from further consideration while DEP seeks better guidance through the convening of a multi expert technical panel to lay out for all of us the essential foundations of law and policy on metallic mining in volcanogenic massive sulfides, the secnd highest geological risk group of all metallic mining. I had previously named for JSCENR Co-Chair Dr. Tom Saviello a specific panel composition and all but one, although always fully committed for months ahead had agreed to serve, provided the committee is coordinated by a person independent of DEP JSCENR and all lobbyists who has recognized competence. The work product Bowker Associates had suggested in private correspondence with Dr. Saviello, nitated by him, was a very short piece on essential foundations and mandates which could then be presented to all, DEP, BEP, JSCENR and the public and from which a meaningful workable and effective complete legal fraeowrk could be created, again wth continuing guidance by the expert panel. Dr. Savilllo indicated to me ( and others) in private correspondence that he agreed with this approach, had presented it to DEP and had received no reply. If that is so, DEP’s actions exceed a failure of due diligence.
Samarco Mine Disaster – UN Experts Welcome Settlement Suspension and Call for a Timely & Equitable Resolution
The following text, in English and in Portuguese is as issued by the UN Special Procedures, Human Rights. They have been actively engaged and independently investigating and monitoring on the ground in Brazil since immediately after the disaster in November 2015. The press release speaks to the recent action overturning the court ratification of the settlement agreement which left all control of settlement with the miner although retaining a government oversight committee with no clear mandates or funding for exercise of the broad mandate given. Bowker Associates has posted favorably on other aspects of the agreement as a spring board for pre planning recovery and settlement in the event of disaster but has called from the beginning for an independent claims management litigation support entity to do outreach, formulate and present claims and track them to conclusion. Bowker Associates has also called for an independent team of architects and planners to work with the displaced of Bento on the master plan for the new Bento and its resettlement.
Contact: Lindsay Newland Bowker, Managing Director Bowker Associates Science & Research In The Public Interest
207 367 5145 email@example.com
GENEVA (5 July 2016) – A group of United Nations human rights experts today commended the decision of the Brazilian Superior Court of Justice to suspend the settlement reached between the Government of Brazil and Samarco Mining S.A., and its parent companies Vale S.A. and BHP Billiton Brazil Ltda in response to what has been described as the worst socio-environmental disaster in the country’s history.
“The agreed settlement ignored the victims’ human rights, and its suspension on 1 July is a perfect opportunity to perform a thorough human rights-based review of the remedies and compensations due to the victims with transparency and public participation” the experts said. “We urge the Brazilian Government to seize it in order to address timely and adequately persisting human rights concerns.”
In November 2015, the collapse of a tailing dam in Mariana in the state of Minas Gerais released about 50 million tonnes of iron ore waste, exacerbating the levels of several toxic substances, over approximately 700km of several rivers including the vital River Doce. Nineteen people were killed as a direct result of the collapse.
The lives of 6 million people were severely affected, as many homes and villages were buried or destroyed, and, essential sources of water were contaminated. Sources of food and water for indigenous peoples and local communities were greatly compromised. > > “The Executive powers and companies appeared to have, in their haste, ignored the rights of the victims to information, participation and an effective remedy, and to provide assurance of accountability. For the victims, this adds insult to injury,” said the UN Special Rapporteur on human rights and hazardous substances and wastes, Baskut Tuncak. “They appeared willing to forgo the rights of all victims in an effort to sweep this disaster under the rug.”
The UN experts noted that Brazil’s public prosecutor estimated the cost of damages at 25 times greater than the amount guaranteed in the initial settlement, and cautioned that the settlement agreement was negotiated at record speed comparing with other environmental disasters of this magnitude, during a tumultuous period for the Government of Brazil, which is mired in a political crisis and allegations of mass corruption.
“The eventual costs of providing full reparation and compensation to all victims will be colossal, and might be the greatest for water and sanitation,” warned the UN Special Rapporteur on the human right to safe drinking water and sanitation, Léo Heller.
The suspended settlement provided for the establishment of a private foundation to undertake several reparatory and compensatory programmes over the next 15 years. In that regard, the UN experts raised alarm about “the abysmal lack of transparency and participation of victims in the negotiation process of the settlement agreement,” and noted that the agreement was not made available to the general public.
They also expressed serious concerns regarding the governance bodies to be established by the agreement, which would leave little or no room for effective participation of public authorities and the affected communities in the design and execution of the environmental, social and economic programmes.
If settled, the mining company would have the power to decide on the indemnities to be given to the affected populations without any possibility of such decisions being subjected to questioning or appeal. Moreover, the agreement did not project sufficient mechanisms to ensure the participation of all affected communities in the implementation of the foundation. > > “Seizing the opportunity of the suspension, the agreement’s terms must provide adequate safeguards to make sure there will be sufficient funds for all projects. The allocation of funds must be reviewed and decided in accordance with democratic principles and must be applied observing human rights principles,” they stressed. > > The experts’ call has also been endorsed by the UN Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, and the current Chair of the UN Working Group on Business and Human Rights, Pavel Sulyandziga.
Léo Heller, Baskut Tuncak, Victoria Tauli-Corpuz and Pavel Sulyandziga are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity. Learn more, log on to: > > Water and sanitation: http://www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx > Hazardous wastes: http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx > Indigenous peoples: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx > Business and human rights: www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx > > UN Human Rights, country page – Brazil: http://www.ohchr.org/EN/Countries/LACRegion/Pages/BRIndex.aspx > > For enquiries and media requests, please contact Melinda Ching Simon (+41 22 917 9113 / firstname.lastname@example.org) or Patricia Varela (+41 22 928 9234 / email@example.com) or write to firstname.lastname@example.org > > For media inquiries related to other UN independent experts: > Xabier Celaya, UN Human Rights – Media Unit (+ 41 22 917 9383 / email@example.com) > > For your news websites and social media: Multimedia content & key messages relating to our news releases are available on UN Human Rights social media channels, listed below. Please tag us using the proper handles: > Twitter: @UNHumanRights > Facebook: unitednationshumanrights > Instagram: unitednationshumanrights > Google+: unitednationshumanrights > Youtube: unohchr > _________________________________ > > NOTA À IMPRENSA > > Desastre mineiro no Brasil: Especialistas da ONU saúdam suspensão de acordo e pedem uma resolução oportuna > > > GENEBRA (5 de julho de 2016) – Um grupo de especialistas em direitos humanos das Nações Unidas elogiou hoje a decisão do Supremo Tribunal Federal brasileiro de suspender o acordo alcançado entre o governo do Brasil e a Samarco Mineração S.A., junto com suas empresas controladoras Vale S.A. e BHP Billition Brasil Ltda., em resposta ao que tem sido descrito como o maior desastre socioambiental na história do país. > > “O acordo ignorava os direitos humanos das vítimas, e sua suspensão em 1° de julho é uma oportunidade perfeita para realizar uma completa revisão baseada em direitos humanos das devidas reparações e compensações para as vítimas, com transparência e participação pública”, afirmaram os especialistas. “Pedimos que o governo a aproveite, a fim de abordar de forma oportuna e adequada as persistentes preocupações de direitos humanos”. > > Em novembro de 2015, o rompimento de uma barragem em Mariana, no estado de Minas Gerais, liberou cerca de 50 milhões de toneladas de rejeito de minério de ferro, supostamente aumentando os níveis de múltiplas substâncias tóxicas em um curso de aproximadamente 700 km de vários rios, incluindo o vital rio Doce. Dezenove pessoas morreram diretamente por causa do colapso. > > As vidas de seis milhões de pessoas foram severamente afetadas, enquanto muitas casas e aldeias foram enterradas ou destruídas, e fontes essencias de água foram contaminadas. Fontes de alimento e água para povos indígenas e comunidades locais ficaram seriamente comprometidas. > > “Os poderes executivos e as empresas parecem ter, com sua pressa, ignorado os direitos das vítimas à informação, participação e a uma reparação efetiva, bem como a entregar garantias de prestação de contas. Para as vítimas, isso agrava ainda mais a situação”, disse o Relator Especial da ONU sobre direitos humanos e substâncias e resíduos perigosos, Baskut Tuncak. “Eles pareciam dispostos a dispensar os direitos das vítimas em um esforço por varrer esse desastre debaixo do tapete”. > > Os peritos da ONU observaram que o Ministério Público do Brasil estimou que os custos dos danos são 25 vezes maiores que a quantia considerada no acordo inicial, e alertaram que o acordo foi negociado a velocidade recorde em comparação com outros desastres desta magnitude, durante um tumultuado período para o governo do Brasil, atolado em uma crise política e alegações de corrupção em massa. > > “Os eventuais custos de fornecer total reparação e compensação para todas as vítimas será colossal, e podem ser os maiores em termos de água e saneamento”, alertou o Relator Especial da ONU sobre o direito humano à água potável e saneamento, Léo Heller. > > O acordo > > O acordo suspenso previa o estabelecimento de uma fundação privada para executar vários programas de reparação e compensação nos próximos 15 anos. Nesse sentido, os especialistas da ONU expressaram preocupação sobre a “deplorável falta de transparência e de participação das vítimas no processo de negociação do acordo”, e notaram que o acordo não foi disponibilizado para o público geral. > > Eles expressaram também grave preocupação com os órgãos de governança a serem estabelecidos pelo acordo, que deixariam pouca ou nenhuma margem para a efetiva participação das autoridades públicas e das comunidades afetadas no planejamento e execução dos programas ambientais, sociais e econômicos. > > Se for estabelecido, a empresa mineira teria o poder de decidir sobre as indenizações a serem entregues para as populações afetadas sem possibilidade nenhuma de que essas decisões fossem questionadas ou recorridas. Além disso, o acordo não projetava mecanismos suficientes para garantir a participação de todas as comunidades afetadas na implementação da fundação. > > “Aproveitando a oportunidade da suspensão, os termos do acordo devem fornecer salvaguardas adequadas para garantir que existirão recursos suficientes para todos os projetos. A alocação desses recursos deve ser revisada e decidida conforme princípios democráticos e deve ser aplicada observando os princípios de direitos humanos”, enfatizaram. > > O apelo dos peritos também foi respaldado pela Relatora Especial da ONU sobre os direitos dos povos indígenas, Victoria Tauli-Corpuz, e o atual Presidente do Grupo de Trabalho da ONU sobre empresas e direitos humanos, Pavel Sulyandziga. > > FIM > > Léo Heller, Baskut Tuncak e Victoria Tauli-Corpuz e Pavel Sulyandziga fazem parte do que se conhece como os Procedimentos Especiais do Conselho de Direitos Humanos. Procedimentos Especiais, o maior órgão de especialistas independentes no sistema de direitos humanos das Nações Unidas, é o nome atribuído aos mecanismos de investigação e monitoramento independentes do Conselho, que trabalham sobre situações específicas de cada país ou questões temáticas em todas as partes do mundo. Os especialistas dos Procedimentos Especiais trabalham a título voluntário; eles não são funcionários da ONU e não recebem um salário pelo seu trabalho. São independentes de qualquer governo ou organização e prestam serviços em caráter individual. Saiba mais (em inglês): > > Água e saneamento: http://www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx > Resíduos perigosos: http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx > Povos indígenas: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx > Empresas e direitos humanos: www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx > > ONU Direitos Humanos, página de país – Brasil: http://www.ohchr.org/EN/Countries/LACRegion/Pages/BRIndex.aspx > > Para mais informações ou pedidos de imprensa, entre em contato com Melinda Ching Simon (+41 22 917 9113 / firstname.lastname@example.org) ou Patricia Varela (+41 22 928 9234 / email@example.com) ou escreva para firstname.lastname@example.org > > Para consultas de mídia relacionadas com outros especialistas independendentes da ONU: > Xabier Celaya, ONU Direitos Humanos – Unidade de Mídia (+ 41 22 917 9383 / email@example.com) > > Para usar nos seus sites de notícias e redes sociais: conteúdo multimídia e mensagens-chave sobre os nossos comunicados de imprensa estão disponíveis nas plataformas de redes sociais da ONU Direitos Humanos, listados abaixo. 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The following statement summarizing their visit and investigation of the Samarco failure immediately after it occurred puts the above concern in context We had added emphasis to what those statements which align most closely with our own analysis of how public liability and non remediable loss form and evolve.
With regard to awareness about business and human rights issues, our general impression is that mainstream business enterprises, both private and State-owned, and business associations remain largely unaware of the United Nations Guiding Principles. Companies report that they have received little guidance from the Government about the actions they are expected to take in line with the Guiding Principles.
Certain CEOs may know about the requirements placed on business by the Guiding Principles but this is often not translated into middle management activities. Our expectation is that the human rights dimension should be integrated not only at the policy level but also at the sites/operations level, including in a company’s value chains.
In relation to the companies that are aware of the Guiding Principles, the Working Group observed that they primarily understand human rights risks as being about risks to the company, rather than the risks faced by vulnerable rights holders. If companies focus on the question of human rights risks to a specific project, rather than using a holistic approach, then there is a risk that human rights concerns will be traded off and side-lined, to the detriment of affected communities.
Brazil has a number of State Owned Enterprises (SOEs) that have a particular responsibility to protect against adverse human rights impacts. Also, the State’s own human rights obligations come into play when SOEs take decisions that impact human rights. Earlier this year, the Government organised an event in which Brazilian SOEs committed to uphold the OECD Guidelines for Multinational Enterprises which explicitly promote the Guiding Principles. Furthermore, CNI (the National Confederation of Industry in Brazil) is a signatory to the Bahrain Declaration made during the 2015 first Annual Global Employers’ Summit in Bahrain which calls for the implementation of the Guiding Principles. We are not yet seeing the above commitments being reflected sufficiently in the day to day practice of SOEs, or companies in which the State holds a significant share-holding, or other economic entities under the control of the State, such as development banks, and in the business relationships that flow from these entities.
There appears to be little instruction coming from the Government, both at the Federal and State level, in relation to the human rights impact of companies and SOEs in particular. It seems that the Government grants a licence for a large infrastructure project and then provides little oversight or regulation of the project. The lack of State presence is problematic. While companies can be privatised, States cannot outsource their duty to protect human rights. States never lose the obligations they hold and human rights impacts must be properly overseen by the State on an on-going basis. The State can have a small presence in the operation of economic activities but it has to have a strong presence in overseeing and enforcing human rights.
Brazil’s Folha reported yesterday that the indictment list has been expanded to include a principal Vale engineer who doctored records about the extent of Vale’s co-use of the Fundao.
According to Deputy Roger Lima de Moura, responsible for verification, Vale contributed to the breakup because its depositions constituted 27% of the total as of the time of failure .. Vale had earlier admitted to its unauthorized use of the Fundao for its own tailings from its own immediately adjacent mine but had provided falsified records to authorities claiming its use was no more than 5%..
The indictment of the Vale engineer also stated the composition of tailings Vale deposited in the Fundao had been falsely reported..
Moura said that the main causes of the failure were drainage problems, use of low-quality material for the construction of the dam, poor monitoring and lack of control of the amount of tailings deposited.
The investigation, according to the delegate, also concludes that the location where the dam was breached –” called “retreat of the left jamb“ “– was a modification to the original design ( not approved or initiated by the dam designer. and that from 2012 when De Avila was dismissed there was no qualified engineer in charge.
The Federal Police also pointed out that Samarco decreased its investment in “Geotechnical work”by 29%2012-2015, while increasing investments in production, which in turn increased tailings volume generated.
Although not mentioned in this additional indictment of engineer Vale had commissioned its own assessment of the major expansion referred to in the police report and was aware that there was insufficient capacity in the Fundao to accommodate the additional tailings of the expansion and no room on site for an expansion and nevertheless continued its own depositions.
Brazilian Federal Prosecutors File Suit Against Vale, BHP and Samarco for $US43.55 Billion Demanding Immediate Provision of $US2.8 Billion
May 4, 2016 2pm EST USA
Lindsay Newland Bowker firstname.lastname@example.org
RIO DE JANEIRO—Brazilian federal prosecutors filed a civil lawsuit on Tuesday demanding that Samarco, BHP, and Vale , the mining companies responsible under Brazilian law for a cataasrophic dam failure on November 5, 2015 payt up to 155 billion reais ($43.55 billion) for cleanup and remediation.
The 359-page lawsuit brought by independent federal prosecutors was the result of a six-month investigation . Importantly, it also is against state and federal governments. Prosecutors accused the state of Minas Gerais, where the dam collapsed in November 2015, of negligence in its monitoring of the build up of waste and water sludge at the Samrco mine. Every mine failure is ultimately a failed public private partnership in which miner and permit authority are co -responsible.
If upheld by a judge, the lawsuit would require Brazil’s Vale SA, Anglo-Australian miner BHP Billiton Ltd., and their joint-venture Samarco Mineração to make an initial deposit of 7.7 billion reais to an independent fund responsible for cleaning up the fallout from the Fundão tailings dam collapse on Nov. 5. The accident, the worst environmental tailings disaster in recorded history, released an avalanche of 60 million cubic meters of tailings and waters that killed 19 people, destroyed villages and polluted more than 400 miles of rivers before spewing into the Atlantic Ocean weeks later. The huge plume of suspended wastes has not dispersed as anticipated and has returned to the bay where phyto plankton species, the foundations of ocean health, have changed dramatically.
Shares in BHP Billiton fell more than 6% in early trading in London.
Prosecutors filing this suit were not signatories to, and did not approve, the settlement agreement announced between the mining companies and Brazil’s government in early March. That deal, the final of which has not been made publicly available, provides specific minimum payments totaling 9.46 billion reais through 2030 via a foundation run mostly by their own appointees. The settlement, however, at least in a draft dated days before the final, recognized that actual liabilities could exceed the $us 5.2 billion tentatively estimated as total damages early on after the man made catastrophe.
Shares of both Vale & BHP , after plunging in the wake of the disaster, had rebounded on news of the settlement . Vale’s stock more than doubled between early February and late April, aided by a rally in iron-ore prices.
However, BHP’s shares slumped 9.5% on Wednesday, underperforming rival iron-ore miner Rio Tinto Ltd. and Australia’s benchmark share index. BHP’s stock is also weighed by weakening global oil prices, which are down more than 5% from their 2016 highs reached last week.
Prosecutors announcing their action, criticized the deal for not involving victims in negotiations, for failing to establish legal mechanisms to ensure that the mining companies would meet their obligations, and for ignoring the government’s responsibility for the disaster.
“Input from the public prosecutors’ office was not considered by the negotiating parties,” the lawsuit said, adding that the government and companies appeared to be in a hurry to get a deal signed. “This resulted in a settlement that was incomplete, precarious and partial.”
Both the settlement and the prosecutors actions are governed by Brazilian law which provides strict liability and joint and several liability among owners and their co owned operating subsidiary Samarco. Neither has any bearing on criminal actions pending against Samarco Officials and their consultant VOGBR who certified the dam as safe t officials in July 2015. Neither the agreement nor the prosecutorial action supercedes or overrides any claims individuals or businesses may assert .
The Brazilian Federal prosecutors amount is not based on any revised estimate of actual total costs for recovery and compensation specific to the Fundao/Santorem damages but on reference to the BP Gulf disaster as a “comparable”
“Based on preliminary studies, the human, economic and socio-environmental impacts caused by the break of the Fundão dam are at least equivalent to those verified in the Gulf of Mexico,” federal prosecutors said in a news release. “It doesn’t seem technically or morally credible that…the human, cultural or environmental value of Brazil should be inferior to that of other countries.”
The $US45B is just a place holder and perhaps more realistic than the initial estimate of $US5.2B ( which is not the ceiling in the settlement agreement either although referenced. The draft settlement agreement recognizes that the full loss is non estimable and a good deal of it beyond any concepts of “replacement value” or “replaceable”).
The timing of the settlement announcement was to buoy, Vale and BHP and give some hope to Samarco debt and bond holders. At least its anticipation and announcement had that effect in financial markets who seem to need to believe that all three companies can survive this economically.
It is certainly a plus for the Public interest that the prosecutors, in taking this action, have spoken to the lack of transparency thus far and to the likelihood of unfair settlement processes if the process is in Samarco’s control with no informed ( independent) control and direction.
Dislocation and resettlement are almost routine in mining. It is thought of in the same vein as displacements that occur for large important public works projects, including urban renewal projects. Mining thinks of itself and has historically been regulated as if it were an “important public works” machinery.
The subtleties of loss and evaluation of loss in the case of the this largest tailings failure in recorded history of the world, are not within the capacity or culture of Samarco or any miner to assess. They have a legal and moral duty to pay for whatever it costs but they have no capacity to actually envision or actualize a fair recovery from the disaster they have caused in their any deviations from best knowledge, best science, best practice at the Fundao.
The prosecutor has not specifically acknowledged that or shown a full undertstanding of that in this important action in the public interest but through the recognition of the need for transparency and community involvement it may lead to that.
It seems very clear the politics of the settlement agreement were not ever going to lead to that.
Sadly, this news this morning from the Solomon’s, underscores the universality of the issues of disenfranchisement and lack of accountability to fundamental community needs and values that is indemic to the “social license to operate” as defined and promulgated by the mining cartel but also, as in this case, adopted by local communities and indigenous peoples themselves. In this case, the mine owners are disgruntled landowners, a collective of 17 tribes of indigenous peoples who owned the land of the mine site, who foolishly orchestrated a sort of hostile takeover of the never profitable Gold Ridge Mine. Local control motivated by profits and a piece of the pie without adequate technical knowledge and adequate capital is as dangerous and as disenfranchising to surrounding community as operation by any miner
All mines require adequate capital, excellence in techincal and scientific knowledge, and a standard of deisgn and operation that is accountable in the first instance to environmental security and preservation of community. Local control and local input must be about securing this for every mine that is allowed to operate and expand.
This 20 million cubic meter 50 m high TSF has hovered on the brink of collapse for almost two years. Landowners sought what St Barbara had been denied before it was locked out: permission to dewater at a very high rate of release and without treatment. Because of downstream community and environmental issues UNESCO stepped in at the request of the Solomon Island Government ( SIG) with its own independent technically expert team and established standards on a safe rate of release and a requirement for treatment. Local government had been prepared to and actually did grant an untreated release at unsafe levels far in excess of what UNESCO advised: 12,000 cubic meters per day vs 3, 572 cubic meters per day.
SIG & landowner/mine owners opted to await the installation of the water treatment which only went on line March 29th . By then overflow conditions had already been reached. Apparently also beginning that date an emergency untreated release was authorized but in fact it is literally overflowing the crest of spillway with no means of control or diversion so it cannot be properly called an “authorized release”. All that , from UNESCO report ’til March 29th, took a long time and the dam was in a crisis when all these discussions began ( as at Mt. Polley). Nothing was ordered by SIG or initiated by the 17 tribes who now own the mine to catch and hold any overflow even though it has been known for some time that an overtopping was likely. Local control has not brought increased levels of accountability to environmental security or to the safety and preservation of downstream communities.
Like so many other mines that have failed at a catastrophic level this deposit was never properly assessed in the first instance. Flow sheets, and tinkerings with them over several turnovers in ownership, all propped up by the World Bank, IFC and the Australian Export Credit Agency never found a flow sheet that could profitably mine this anomalous deposit. Recovery rates at each new expansion or tinkering got lower and lower from only 86% at outset to 69% when last operated. The latest tinker and expansion had already been initiated and miners already knew it had failed again when they went looking for some hapless buyer that they found in St. Barbara, after quite a time. (there was no long line of eager offerors). St. Barbara has since admitted they did no independent assessment pre acquisition but relied on the representation of Australian Government.
Very shortly after St. Barbara’s ill advised acquisition, the rapid rate of deposition to the TSF, well beyond what facility designers had prescribed (it was filled to near max in a much shorter time than was planned life of mine) had pushed it to the verge of crisis. This is the story behind almost all catastrophic tailings failures. Bad practice and/or miner incompetence. Important to note that according to Golder , serving as ad IFC , the TSF was not built according to the state of the art plans submitted to all by Ross Mining, the original developer. Critical aspects of the drainage system were never put in place. No as built drawings of the TSF have been presented in Golder’s work for IFC or by UNESCO.
St. Barbara went back to Australia leaving no personnel to manage the mine or reduce the threat level when local government refused to allow them a huge discharge of untreated water to avert collapse. (Such a release was not allowed under the terms of the IFC financing ) St. Barbara refused to install the promised water treatment facility which was destroyed during their absence their site was taken over by artisan miners. Government refused the security and protection St Barbara expected as a condition of returning in any way. (Throughout the life of the mine, miners and the Australian Government have “papered over” the fundamental issues of technical incompetence that plagued this mine as a matter only of political risk and social unrest, of unpredictable fluctuations in commodity prices, and a disorganized and incompetent local government.)
Local government locked St. Barbara out and local landowners who were owed much money under prior agreements took control and ownership including responsibility for all liabilities. SIG had refused to do so. They naively assumed , as many citizens do, that all mines are cash in the ground and that there would be a long list of interested parties to co venture with landowners in the reopening and operation of the mine.
After quite awhile the only partner to step forward, AXF, a conglomerate of extremely wealthy Chinese individuals, has no experience whatsoever in mining ( they are in the entertainment and commercial property development business…not clear what motivated AXF but Bowker Associates is investigating whether again tinkering by the Australian Government, perhaps in connection with qualifying for investor immigration requirements that trades presence and investment of foreign entities for investment in desired or high risk projects ). AXF created a separate entity for this partnership which was executed in December 2015. AXF, like the hapless landowners, probably didn’t even know what questions to ask before it signed on.
So this apparently out of control dewatering, as it seems to the excluded and most directly threatened Guadalcanal community downstream, has no mining competent persons involved locally to assess and oversee and accomplish a safe dewatering. ( At least no contracts with competent engineers and scientists have been announced). There is no one of competence to speak to the concerns of the Guadalcanal community; no one of competence to give any meaningful assurances at all.
Speaking concerns is not enough to solve the complex complex problems of mining necessary to satisfactory levels of environmental and community security. Concerns, when addressed to the absence of competence can’t possibly bring fruitful or timely solutions. To be effective on mining threats, spoken concerns must come with that competence and demand that that competence be provided as part of the operating and oversight of the mine.
This applies as well to concerns about fair and equitable implementation of the Samarco settlement and to the nature of mobilization required to bring that about.
It illustrates that local control, especially without adequate capital for management and adequate technical know how is not inherently a positive and where a serious danger is present, as at this mine, puts the entire downstream at risk with no means of mitigating the danger.
April 8, 2016 Additional Press & Video http://www.sbs.com.au/news/article/2016/04/08/major-tailings-dam-spill-solomon-islands-disaster-gold-mine
Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681
Danger of continuing uncontrolled release recognized..dwnstream 8,000 warned but not offered any assistance . Naezan and the coalition of 17 tribes who own the mine, whose management of it has fallen well below international standards for responsible management, had initially denied that the release was uncontrolled and that it was harmful fully aware of the UNESCO findings and warning that the maximum safe daily release of untreated waters is around 3,500 cubic meters per day. The uncontrolled , uncontrollable release has greatly exceeded that. Naezan acknowledged 95,00o cubic meters over the dam without treatment since March 29th as of last Friday.April 7th. That is an untreated release rate more 3 times the safe rate known to SIG and Naezan’s coalition. SIG, fully aware of the UNESCO advice which they themselves sought, had nevertheless issued a permit to Naezan’s coalition for an untreated daily release of 12,000 cubic meters.
The Naezan group’s new partner, AXF, an entertaninment/commercial property conglomerate of wealthy Chinese investors with no mining experience whatsoever has been silent but according to Naezan have had management control since December. No deep pocket there though as they created a separate company for the partnership and Australian/Solomon Islands law does not have cut through provisions and strict liability as Brazil.
All are mum on cyanide also noted in the UNESCO report . The initial plan for the mine which started in 1998 and as approved by IFC and the Australian export credit called for cyanide removal at the end for the water only but not the tailings themselves. In a report by Golder for IFC they noted in 2011 this practice was below acceptable acceptable international standards and that the tailings should be treated before deposition and the waters treated before release.. That was the purpose of the water treatment plant. No action was ever taken to remove the cyanide from the tailings before deposition. ( The plan had been to close the wrongly built TSF and build a new one)
April 15 In a vague statement Solomons’ Island Environment Minister says Spill over under control and only treated waters being released now
No details were made available on how much water actually escaped and/or were pumped nder the permit for unteated release;, what the current level of water in the dam is; whether the treated waters are being held for monitoring and testing prior to release as advised by UNESCO to the Solomon Islands Government or whether the rate of treated release is otherwise at the rate advised by UNESCO to the Solomon Islands Government.
Should this TSF fail, based on modeling of past failures, this 20 million cubic meter 50 m high facility could easily spill 10 million cubic meters of arsenic and cyanide tainted tailings propelling them with that nearly 1 million cubic meters of waters and the wall of the dam itself into the settlement of the 8,000 downstream. If that should happen it would be the 3rd TSF failure in 30 months exceeding 10 million cubic meters. It would be only the 6th release of tis size ever in recorded history.
Even with Samarco’s man made catastrophe and its horrific images so fresh and current in global awareness, this long unfolding catastrophe has received no notice outside of regional and local press.
“Former Massey Energy Co. CEO Don Blankenship was sentenced Wednesday to a year in federal prison and ordered to pay a $250,000 fine for his role in the Upper Big Branch mine explosion in West Virginia that killed 29 miners in 2010.
“Mr. Blankenship was acquitted of all felony charges, but convicted of a misdemeanor conspiracy charge in December for willfully violating U.S. mine health and safety standards and received the maximum sentence and fine applicable under his conviction, according to news releases.
“This sentence is a victory for workers and workplace safety,” Acting United States Attorney Carol Casto for the Southern District of West Virginia said in a statement. “It lets companies and their executives know that you can’t take chances with the lives of coal miners and get away with it. Putting the former chief executive officer of a major corporation in prison sends a message that violating mine safety laws is a serious crime, and those who break those laws will be held accountable.”
Upper Big Branch Lost Worker Memorial
During the trial, more than two dozen witnesses, including coal miners who worked at Upper Big Branch, testified about unsafe working conditions at the mine, violations of U.S. Mine Safety and Health Administration regulations and organized efforts to obstruct and interfere with MSHA inspectors, according to the government’s release.
Mr. Blankenship’s motion to stay his sentence pending appeal was denied by the judge, who ruled he will self-report once the Bureau of Prisons determines where he will serve his sentence, according to a government spokesperson.
An attorney for Mr. Blankenship could not be immediately reached for comment.”
Criminal charges for homicide against Samarco Execs, including their former President, and one consultant VOGBR, have also been made but not yet heard. Heruculano Mine partners were recently indicted for murder for deaths in the 2014 tailings dam failure.
In a recent industry update the Insurance Information Institute reported
- Mining accounted for 7 of 147 man made disasters known to insurers in 2014( 5%)
- The 7 manmade* mining disasters in 2014 known to insurer resulted in 400 death but involved an insured loss amount of only $100 million indicating not the consequence of of loss but the very low presence of insurance and risk management outside of Property ($625 billion in insured assets) Business Interruption and Political Risk.
(*”manmade disaster” means arising from human activity and includes causes other than those originating from the insured miner’s operations)
In their 2016 Mining Market Outllook report global brokerage house Marsh & McClennan provides extensive stats and analysis showing that as risks have grown and the value of insured assets has grown, more and more insurers have reduced limits of coverage ( ie bought less coverage even though for property at least limits are generous and cheap.
In the worlds most costly and damaging mine failures, the Marsh report notes the values the total damages was extremely low. They made specific note of both Mt. Polley and Samarco.. Even for all those Tailings facilities rated “Extreme Hazard”,usually meaning that human settlements would be completely lost as happened at Samarco, permitting regulations and statutes rarely require adequate third party liability limits.
The government has assessed damages against Samarco of $(us)5.2 billion. Samarco self reported that they had only about $600 million available for compensation from insurance almost all of that for their own proper ty damages and their Business Interruption. Under applicable liability applies and the settlement agreement, which flows the dictates f law, does not limit liability to that amount but sets minimums for each year to serve as benchmarks for minimum compliance ( falling below these minimums would consitute non compliance and subject Samarco, Vale & BHP to very costly daily penalties) and further action under environmental crimes law.
The Upper Big Branch Mine disaster occurred on April 5, 2010 roughly 1,000 feet (300 m) underground in Raleigh County, West Virginia at Massey Energy‘s Upper Big Branch coal mine located in Montcoal. Twenty-nine out of thirty-one miners at the site were killed. The coal dust explosion occurred at 3:27 pm. The accident was the worst in the United States since 1970, when 38 miners were killed at Finley Coal Company‘s No. 15 and 16 mines in Hyden, Kentucky. A state funded independent investigation would later find Massey Energy directly responsible for the blast.
The Mine Safety and Health Administration (MSHA) released its final report on December 6, 2011, concluding that flagrant safety violations contributed to the explosion. It issued 369 citations at that time, assessing $10.8 million in penalties. Alpha Natural Resources, which had bought Massey Energy in 2011, settled its corporate criminal liabilities with the U.S. Attorney for $209 million. Investigation of possible personal criminal liability continues, with one former superintendent, Gary May, pleading guilty in March 2012, and “confess[ing] to conspiring to ‘impede the [MSHA]’s enforcement efforts'”. The CEO of Massey Energy at the time of the disaster, Don Blankenship, was convicted in 2015 of conspiring to willfully violate safety standards. He was found not guilty of charges of securities fraud and making false statements.
In April 2012, Coal producer Alpha Natural Resources Inc. (ANR) (the then current owner) said it will permanently close its Upper Big Branch mine in West Virginia.[10