The Criminalization of Safety (Part 2)

Risky Business 

As we illustrated in Part 1 of this post a new aspect of safety management risk is possible criminal liability for actions, or inactions, associated with events that did, or could have, safety consequences.  While there has always been the potential for criminal liability it has generally been directed at the corporate level versus individual employees.  Heretofore, “few executives have been on the hook, partly because it is tough for prosecutors to prove an individual had criminal intent in a corporate setting where decision-making is spread among many.” ^1,2

The Justice Department has been making a new push to target individuals more frequently to hold them accountable for corporate malfeasance. Much of the criminal liability in recent years has been cropping up in industries other than nuclear, as illustrated in the summary table in Part 1.  The Deepwater Horizon drill rig explosion and the Massey Coal explosion at the Upper Big Branch mine have been leading examples.  More recently the series of scandals involving automobile manufacturers are adding to the record.  And the Flint water contamination situation is also evolving rapidly.  We’ll discuss the significance of these cases and how it could impact the conduct of individuals responsible for safe nuclear operations and the role of regulation.  In particular, under what circumstances criminal liability may attach and whether the potential to be held criminally liable is an effective force in assuring compliant behaviors and ultimately safety. 

Who’s a Criminal?

The various cases are a mix of corporate and individual liability.  All three corporations involved in Deepwater pleaded guilty to various charges and paid very large fines.  In BP’s case, it pleaded guilty to felony manslaughter.  Manslaughter charges against individuals employed by BP were dropped prior to trial.  Individual liability was limited to violations of the Clean Water Act and obstruction of justice (misdemeanors).³

David Uhlmann, a professor at the University of Michigan Law School and former environmental-crimes prosecutor stated, “The Justice Department always seeks to hold individuals accountable for corporate crime, but doing so in the Gulf oil spill meant charging individuals who had no control over the corporate culture that caused the spill.” ⁴

Other cases followed a similar pattern until Upper Big Branch.  Mostly lower level individuals were being targeted; higher ups were insulated from knowledge or direct involvement in the specific event.  With Massey prosecutors worked their way up the management chain all the way to the CEO.⁵  However even where there were significant indications of the CEO driving a “production first” culture, the felonies he faced were based on securities fraud and making false statements.  Ultimately he was convicted of violating safety standards and will serve jail time.⁶  Fukushima will be another attempt to hold senior management accountable (for something termed, “professional negligence”) but, as previously noted, the case is thought to be difficult.  The Attorney General in the Flint water cases promises more indictments and implies higher ups will be charged.  It remains to be seen whether this targeting of individuals will prove to be a truer preventive measure than other remedies.

Proof of Criminal Behavior is Difficult

Ultimately the prospect of criminal prosecution is fraught with legal and practical obstacles.⁷  Current law does not provide a realistic platform for prosecution or sentencing.  Statutory provisions are often limited to misdemeanors.  Making applicable statutes “tougher”, as already proposed by a presidential candidate, is also problematic as it risks over-criminalizing management actions which occur in a complex environment and involve many individuals.  Simple negligence is a problematic ground for criminal liability which generally requires a showing of intent or recklessness.⁸  As noted in regard to the VW scandal, “…investigations are ongoing. Whether criminal prosecutions result may be a matter of balancing suspicion of criminal wrongdoing against the standards of proof required - and the track record of recent prosecutions.⁹

All of the recent experience involving corporations were guilty pleas - the cases did not go to trial and so the standard of proof was not tested. In the BP cases, the DOJ made quite a splash with its indictments of individuals but clearly overreached in charging as the courts and juries quickly dismissed most cases and all felony charges.

Fukushima may be a bit of an oddity as the charges have been mandated by a citizen’s panel.   The charge is “professional negligence” which probably does not have a direct analog in U.S. law.  It does suggest that there will be scrutiny of the actual decisions made by executives which resulted in safety consequences.  In the Flint cases, there will another attempt to review an actual safety decision.  An engineer of the Michigan Department of Water Quality is charged with “misconduct” in authorizing use of the Flint water plant “knowing” it was deficient.  Bears watching.

Competing Priorities and Culture Are Being Cited More Frequently 

Personnel are already in a difficult position when it comes to assuring safety. Corporations inherently, and often quite intentionally, place significant emphasis on achieving operational and business goals.  These goals at certain junctures may conflict with assuring safety.  The de facto reality is that it is up to the operating personnel to constantly rationalize those conflicts in a way that achieves acceptable safely.  Those decisions are rarely obvious, may imply significant benefits or costs, and are subject to ex post critical review with all the benefits of time, hindsight, and no direct decision making responsibility.  Thus the focus may shift from decisions to the culture that may have produced or rationalized those decisions.

The Mine Safety and Health Administration report concluded that the [Upper Big Branch] disaster was "entirely preventable," and was caused in part by a pattern of major safety problems and Massey's efforts to conceal hazards from government inspectors, all of which "reflected a pervasive culture that valued production over safety.”  The Governor of West Virginia’s independent review also found that Massey had “made life difficult” for miners who tried to address safety and built “a culture in which wrongdoing became acceptable.”

As noted in the media, “the automotive industry is caught up in an emissions rigging scandal that exposes systematic cheating and an apparent culture of corrupt ethics."  At VW nine executives so far have been suspended but blame has been focused on a small group of engineers for the misconduct, and VW contends that members of its management board did not know of the decade-long deception.  The idea that a few engineers are responsible “just doesn’t pass the laugh test,’ said John German, a former official at the Environmental Protection Agency…its management culture — confident, cutthroat and insular — is coming under scrutiny as potentially enabling the lawbreaking behavior.¹⁰  Mitsubishi Motors is also implicated and investigations are being launched into their peers – including Daimler and Peugeot – to assess the extent of the problem around the world.

Ineffective Regulation is Becoming a Focus 

Last but perhaps the most intriguing evolution in these cases is a new emphasis on the responsibility of the regulator when safety is compromised. There was an extensive and ongoing history of violations at Big Branch Mine, many unresolved, but which did not lead to more stringent enforcement measures by the Mine Safety and Health Administration (MSHA) - such as a shutdown of mine operations.  State of West Virginia investigators claimed that the U.S Department of Labor and its MSHA were equally at fault for failing to act decisively after Massey was issued 515 citations for safety violations at the UBBM in 2009.  “…officials with the MSHA repeatedly defended their agency’s performance. They were quick to point to the fact that the Mine Safety Act places the duty for providing a safe workplace squarely on the shoulders of the employer, insisting that the operator is ultimately responsible for operating a safe mine.” ¹¹

Similar concerns have arisen with regard to Fukushima where safety regulators have been perceived to lack independence from nuclear plant operators. And thinking back to Davis Besse, it seems that the NRC’s actions could have been more intrusive and proactive in determining the condition of the RPV head prior to allowing the inspections to be delayed.

With regard to Flint we noted above that criminal (felony) charges have been brought against a state engineer for “misconduct in office” for authorizing use of the Flint plant.  In addition, he and a supervisor are also charged with misconduct in office for “willfully and knowingly misleading the federal Environmental Protection Agency…”   An expert in environmental crimes notes ”It’s extremely unusual and maybe unprecedented for state and local officials to be charged with criminal drinking water violations, . . .” ¹²

Whether these pending actions lead to a robust effort to hold regulators and their staff accountable is hard to know.  It bears watching, particularly the contention by MSHA and other regulatory agencies including the NRC, that operators are primarily and ultimately responsible. In Part 3 we’ll share some thoughts on what might other approaches might be effective.

¹ P. Loftus, "Criminal Trials of Former Health-Care Executives Set to Begin," The Wall Street Journal (May 22, 2016).

² The Davis Besse case is prototypical of the way cases were handled in the past.  The corporation pleaded guilty to making false statements and paid a big fine.  Lower level individuals were found guilty of similar charges.  In the Siemaszko trial the court was quite ready to attribute to the defendant knowledge of the content of NRC communications, whether directly prepared by him or not, or acquiescence in materials drafted by others that misrepresented conditions for the RPV.  They also dismissed his contention that he lacked proper expertise.  The court found that he knew and had a motive - keeping the plant running.  There was testimony that higher management was the source of the operational pressure but culpability did not extend beyond the individuals making the actual statements and submittals to the NRC.

³ Transocean Deepwater Inc. also admitted that members of its crew onboard the Deepwater Horizon, acting at the direction of BP’s Well Site Leaders were negligent in failing fully to investigate clear indications that the well was not secure and that oil and gas were flowing into the well.  Halliburton was the supplier of drilling cement to seal the outside of the drilling pipe.  Its guilty plea admitted destroying evidence of instructions to employees to “get rid of” simulation analyses of the event that failed to show that Halliburton’s recommendations to BP would have lowered the risk of a blowout.  [S. Mufson, "Halliburton to Plead Guilty to Destroying Evidence in BP Spill," The Washington Post (July 25, 2013).]  This was an attempt to show that a decision by BP to use fewer pipe centralizers was a serious error contributing to the accident.

⁴ A. Viswanatha, "U.S. Bid to Prosecute BP Staff in Gulf Oil Spill Falls Flat," The Wall Street Journal (Feb. 27, 2016).

⁵ Notably the lower level managers pleaded to charges and did not go to trial.  The acquittal of the CEO on felony level charges illustrates the challenges of proving these cases.

⁶ “Large punitive or compensating settlements, so the argument goes, act as an effective deterrent for mining companies, forcing them to improve their safety systems or face potentially debilitating fines. However, given the revelations about Massey and the several major US mining disasters that have taken place in the last ten years, it's impossible to argue that financial punishment has been a wholly effective scarecrow, especially when companies feel they can game the MSHA system.”  [C. Lo, "Upper Big Branch: the search for justice," Mining-technology.com (June 20, 2013).]

⁷ "To this point, research on corporate crime has been, for the most part, overlooked by mainstream criminology. In particular, corporate violations of safety regulations in the coal mining industry have yet to be studied within the field of criminology.”  [C. N. Stickeler,  "A Deadly Way of Doing Business: A Case Study of Corporate Crime in the Coal Mining Industry," University of South Florida (Jan. 2012).]

⁸ “carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people's rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil.”  Read more: http://dictionary.law.com/Default.aspx?selected=838#ixzz41W5CGRf0.

⁹ J. Ewing and G. Bowley, "The Engineering of Volkswagen’s Aggressive Ambition," The New York Times (Dec. 13, 2015).

¹⁰ Ibid.

¹¹ The quote is from the case study and references the Governor’s investigation - McAteer, J. D., Beall, K., Beck, J. A., Jr., McGinley, P. C., Monforton, C., Roberts, D. C., Spence, B., & Weise, S. (2011). Upper Big Branch: The April 5, 2010, explosion: A Failure of Basic Coal Mine Safety Practices (Report to the Governor).

¹² M. Davey and R. Perez-Pena "Flint Water Crisis Yields First Criminal Charges," New York Times (April 20, 2016). 

The Criminalization of Safety (Part 1)

US DOJ logo

Nuclear safety management and culture relies on nuclear personnel conducting themselves in accordance with espoused values and making safety the highest priority.  When failures occur individual workers may be (and often are) blamed but broader implications are generally portrayed as an organizational culture deficiency and addressed in that context.  

Only rarely does the specter of criminality enter the picture, requiring a level of malfeasance - intentional conduct or recklessness - that is beyond the boundaries of conventional safety culture. 

The potential for criminal liability raises several issues.  What is the nexus between safety culture and criminal behavior?  What is the significance of the increased frequency of criminal prosecutions following major accidents or scandals in nuclear and other industries?  And where does culpability really lie - with individuals? culture? the corporation? or the complex socio-technical systems within which individuals act?

If one has been paying close attention to the news fairly numerous examples of criminal prosecutions involving safety management issues across a variety of industries and regulatory bodies is occurring.  It is becoming quite a list of late.  We thought this would be an appropriate time to take stock of these trends and their implications for nuclear safety management.

Recent Experience

We have prepared a table* summarizing relevant experience from the nuclear and other high risk industries.  (The link is to a pdf file as it is impractical to display the complete table within this blog post.)  Below is a table snippet showing a key event: the criminal prosecutions associated with the Davis Besse reactor vessel head corrosion in 2001/2002. First Energy, the owner/operator, pleaded guilty to criminal charges and two lower level employees were found guilty at trial.  A third individual, a contractor working for First Energy, was acquitted at trial.

More currently high level executives of TEPCO, the owner/operator of the Fukushima plant in Japan, were charged, though the circumstances are a bit odd.  Prosecutors had twice declined to bring criminal charges but were ultimately overruled by a citizens panel.  The case is expected to be difficult to prove.  Nonetheless this is an attempt to hold the former TEPCO Chairman and heads of the nuclear division criminally accountable.

The only other recent examples in the U.S. nuclear industry that we could identify involved falsification of documents, in one instance by a chemistry manager at Indian Point and the other a security officer at River Bend.**  One has pleaded guilty and sentenced to probation; the other case has been referred to the U.S. Department of Justice (DOJ).

Looking beyond nuclear, the picture is dominated by several major operational accidents - the Deepwater Horizon drill rig explosion and the explosion of the Upper Big Branch coal mine owned by Massey Energy.  Deepwater resulted in guilty pleas by the three corporations involved in the drilling operation - BP, Transocean and Halliburton - with massive criminal and civil fines.  BP’s plea included felony manslaughter.  Several employees also faced criminal charges.  Two faced involuntary manslaughter charges in addition to violations of the Clean Water Act.  The manslaughter charges were later dropped by prosecutors.  One employee pleaded guilty to the Clean Water Act violations and was sentenced to probation, the other went to trial and was acquitted.

The Massey case is noteworthy in that criminal charges ultimately climbed the corporate ladder all the way to the CEO.  Ultimately he was acquitted of felony charges of securities fraud and making false statements, but he “was convicted of a single count of conspiring to violate federal safety standards; he was not convicted of any count holding him responsible for the 2010 accident at the Upper Big Branch mine.”***  It “is widely believed to be the first CEO of a major U.S. corporation to be convicted of workplace safety related charges following an industrial accident.”****  Three other individuals also pleaded or were found guilty of misdemeanor charges.

Next up are the auto companies, GM, Volkswagen and Mitsubishi.  The GM scandal involved the installation of faulty ignition switches in cars that subsequently resulted in a number of deaths.  GM entered into a plea agreement with DOJ admitting criminal wrongdoing and paid large monetary fines.  As of this time no criminal charges have been brought against GM employees.  VW and Mitsubishi have both admitted to manipulating fuel economy and emissions testing and there is speculation that other auto manufacturers could be in the same boat.  The investigations are ongoing at this time but criminal pleas at the corporate level are all but certain.

Last in this pantheon is the city of Flint water quality scandal.  The Attorney General of Michigan recently filed criminal charges against three individuals and promised “more charges soon”.  The interesting aspect here is that the three charged are all government workers - one for the city and two for the Michigan Department of Environmental Quality.  And the two state officials have been charged with misconduct in office, a felony.  Essentially regulators are being held accountable for their oversight.  As David Ullmann, a former chief of DOJ’s environmental crimes section, stated, “It’s extremely unusual and maybe unprecedented for state and local officials to be charged with criminal drinking water violations.”  This bears watching.

In Part 2 we will analyze the trends in these cases and draw some insights into the possible significance of efforts to criminalize safety performance.  In Part 3 we will offer our observations regarding implications for nuclear safety management and some thoughts on approaches to mitigate the need for criminalization.


*  Criminal Prosecutions of Safety Related Events (May 22, 2016).

**  We posted on the Indian Point incident on May 12, 2014 and the River Bend case on Feb. 20, 2015.

***  A. Blinder, "Mixed Verdict for Donald Blankenship, Ex-Chief of Massey Energy, After Coal Mine Blast," New York Times (Dec. 3, 2015 corrected Dec. 5, 2015).

****  K. Maher, "Former Massey Energy CEO Sentenced to 12 Months in Prison," Wall Street Journal (April 6, 2016).  The full article may only be accessible to WSJ subscribers.

Four Years of Safetymatters

Aztec Calendar

Over the four plus years we have been publishing this blog, regular readers will have noticed some recurring themes in our posts.  The purpose of this post is to summarize our perspective on these key themes.  We have attempted to build a body of work that is useful and insightful for you.

Systems View

We have consistently considered safety culture (SC) in the nuclear industry to be one component of a complicated socio-technical system.  A systems view provides a powerful mental model for analyzing and understanding organizational behavior. 

Our design and explicative efforts began with system dynamics as described by authors such as Peter Senge, focusing on characteristics such as feedback loops and time delays that can affect system behavior and lead to unexpected, non-linear changes in system performance.  Later, we expanded our discussion to incorporate the ways systems adapt and evolve over time in response to internal and external pressures.  Because they evolve, socio-technical organizations are learning organizations but continuous improvement is not guaranteed; in fact, evolution in response to pressure can lead to poorer performance.

The systems view, system dynamics and their application through computer simulation techniques are incorporated in the NuclearSafetySim management training tool.

Decision Making

A critical, defining activity of any organization is decision making.  Decision making determines what will (or will not) be done, by whom, and with what priority and resources.  Decision making is  directed and constrained by factors including laws, regulations, policies, goals, procedures and resource availability.  In addition, decision making is imbued with and reflective of the organization's values, mental models and aspirations, i.e., its culture, including safety culture.

Decision making is intimately related to an organization's financial compensation and incentive program.  We've commented on these programs in nuclear and non-nuclear organizations and identified the performance goals for which executives received the largest rewards; often, these were not safety goals.

Decision making is part of the behavior exhibited by senior managers.  We expect leaders to model desired behavior and are disappointed when they don't.  We have provided examples of good and bad decisions and leader behavior. 

Safety Culture Assessment

We have cited NRC Commissioner Apostolakis' observation that “we really care about what people do and maybe not why they do it . . .”  We sympathize with that view.  If organizations are making correct decisions and getting acceptable performance, the “why” is not immediately important.  However, in the longer run, trying to identify the why is essential, both to preserve organizational effectiveness and to provide a management (and mental) model that can be transported elsewhere in a fleet or industry.

What is not useful, and possibly even a disservice, is a feckless organizational SC “analysis” that focuses on a laundry list of attributes or limits remedial actions to retraining, closer oversight and selective punishment.  Such approaches ignore systemic factors and cannot provide long-term successful solutions.

We have always been skeptical of the value of SC surveys.  Over time, we saw that others shared our view.  Currently, broad-scope, in-depth interviews and focus groups are recognized as preferred ways to attempt to gauge an organization's SC and we generally support such approaches.

On a related topic, we were skeptical of the NRC's SC initiatives, which culminated in the SC Policy Statement.  As we have seen, this “policy” has led to back door de facto regulation of SC.

References and Examples

We've identified a library of references related to SC.  We review the work of leading organizational thinkers, social scientists and management writers, attempt to accurately summarize their work and add value by relating it to our views on SC.  We've reported on the contributions of Dekker, Dörner, Hollnagel, Kahneman, Perin, Perrow, Reason, Schein, Taleb, Vaughan, Weick and others.

We've also posted on the travails of organizations that dug themselves into holes that brought their SC into question.  Some of these were relatively small potatoes, e.g., Vermont Yankee and EdF, but others were actual disasters, e.g., Massey Energy and BP.  We've also covered DOE, especially the Hanford Waste Treatment and Immobilization Plant (aka the Vit plant).

Conclusion

We believe the nuclear industry is generally well-managed by well-intentioned personnel but can be affected by the natural organizational ailments of complacency, normalization of deviation, drift, hubris, incompetence and occasional criminality.  Our perspective has evolved as we have learned more about organizations in general and SC in particular.  Channeling John Maynard Keynes, we adapt our models when we become aware of new facts or better ways of looking at the data.  We hope you continue to follow Safetymatters.  

Massey Energy

Another domino has fallen in the ongoing determination of culpability at Massey Energy in the Big Branch mine disaster.  The February 28, 2013 Wall Street Journal* reports that the former head of a Massey subsidiary, Green Valley Coal, warned miners when federal inspectors were on their way into mines and to conceal safety hazards.  The former executive specifically stated that the order to do this came from Massey’s CEO.

Thus it appears prosecutors are following the trail of bread crumbs in an inexorable climb to the CEO level.  So often situations like this are simply attributed to weaknesses in the organization’s safety culture, particularly at the working levels.  It is assumed that senior management’s policies and direction to make safety the first priority aren’t permeating the organization.  More training, more indoctrination in safety priorities is required to get workers aligned with their corporate leadership.  But what is becoming very apparent in the case of Massey, it is the intentional decisions by senior management prioritizing production over safety that drove the behavior of subordinates - and it was those working levels that suffered the immediate consequences.  Now perhaps the consequences are being more fairly distributed.


*  "Guilty Plea in Case Tied to Massey Mine Blast," Wall Street Journal online (Feb. 28, 2013).

May Day

This is another in our series of posts following up the Upper Big Branch coal mine disaster in April 2010. As reported in the Wall Street Journal* a former superintendent in the Massey Energy mine, Gary May, was sentenced to 21 months in prison for his part in the accident. Specifically May “warned miners that inspectors were coming and ordered subordinates to falsify a record book and disable a methane monitor so workers could keep mining coal.”

The U.S. attorney in charge of the case is basing criminal indictments on a conspiracy that he believes “certainly went beyond Upper Big Branch.” In other words the government is working its way up the food chain at Massey with lower level managers such as May pleading guilty and cooperating with prosecutors. The developments here are worth keeping an eye on as it is relatively rare to see the string pulled so extensively in cases of safety failures at the operating level. The role and influence of senior executives will ultimately come under scrutiny and their culpability determined not on the slogans they promulgated but on their actions.

* K. Maher, “Former Mine OfficialSentenced to 21 Months,” Wall Street Journal (Jan. 17, 2013).

The Mouse Runs Up the Clock (at Massey Energy)

We are all familiar with the old nursery rhyme: “Hickory, dickory, dock, the mouse ran up the clock.”  This may be an apt description for the rising waters of federal criminal prosecution in the Massey coal mine explosion investigation.  As reported in the Nov. 28, 2012 Wall Street Journal,* the former president of one of the Massey operating units unrelated to the Upper Big Branch mine has agreed to plead guilty to felony conspiracy charges including directing employees to violate safety laws.  The former president is cooperating with prosecutors (in other words, look out above) and as noted in the Journal article, “The expanded probe ‘strongly suggests’ prosecutors are ‘looking at top management’…"   Earlier this year, a former superintendent at the Upper Big Branch pleaded guilty to conspiracy charges. 

Federal prosecutors allege that safety rules were routinely violated to maximize profits.  As stated in the Criminal Information against the former president, “Mine safety and health laws were routinely violated at the White Buck Mines and at other coal mines owned by Massey, in part because of a belief that consistently following those laws would decrease coal production.” (Criminal Information, p. 4)**  The Information goes on to state:  “Furthermore, the issuance of citations and orders by MSHA [Mine Safety and Health Administration], particularly certain kinds of serious citations and orders, moved the affected mine closer to being classified as a mine with a pattern or potential pattern of violations.  That classification would have resulted in increased scrutiny of the affected mine by MSHA…” (Crim. Info. p.5)  Thus it is alleged that not only production priorities - the core objective of many businesses - but even the potential for increased scrutiny by a regulatory authority was sufficient to form the basis for a conspiracy. 

Every day managers and executives in high risk businesses make decisions to sustain and/or improve production and to minimize the exposure of the operation to higher levels of regulatory scrutiny.  The vast majority of those decisions are legitimate and don’t compromise safety or inhibit regulatory functions.  Extreme examples that do violate safety and legal requirements, such as the Massey case, are easy to spot.  But one might begin to wonder what exactly is the boundary separating legitimate pursuit of these objectives and decisions or actions that might (later) be interpreted as having the intent to compromise safety or regulation?  How important is perception to drawing the boundary - where the context can frame a decision or action in markedly different colors?  Suppose in the Massey situation, the former president instead of providing advance warnings and (apparently) explicitly tolerating safety violations, had limited the funding of safety activities, or just squeezed total budgets?  Same or different? 

*  K. Maher, "Mine-Safety Probe Expands," Wall Street Journal online (Nov. 28, 2012) may only be available only to subscribers.

**  U.S. District Court Southern District of West Virgina, “Criminal Information for Conspiracy to Defraud the United States: United States of America v. David C. Hughart” (Nov. 28, 2012).

A Breath of Fresh Air - From a Coal Mine

It may seem odd to find a source of fresh air in the context of the Massey coal mine disaster of 2010, a topic on which we have posted before.  But the news last week of a former mine supervisor’s guilty plea yielded some very direct observations on the breakdown of safety in the mine.  In a Wall Street Journal piece on March 29, 2012, it was reported:

“Booth Goodwin, the U.S. Attorney in Charleston, W.Va., wrote in the plea agreement that "‘laws were routinely violated’ by Massey because of a belief that ‘following those laws would decrease coal production.’"

Sometimes it takes a lawyer’s bluntness to cut through all the contributing circumstances and symptoms of a safety failure and place a finger directly on the cause.  How often have you seen such unvarnished truth telling with regard to safety culture issues at nuclear plants? 

“[The supervisor] specifically pleaded guilty to tipping off miners underground about inspections, falsifying record books, illegally rewiring a mining machine to operate without a functioning methane monitor and altering the mine's ventilation to trick a federal inspector.”

The above findings are more typical of what one sees in nuclear plant inspection reports and which are attributed to lack of strong safety culture.  This in turn triggers the inevitable safety culture assessments, retraining, re-iteration of safety priorities, etc that appear to be the standard prescription for a safety culture “fever”.  But what - continuing a not so good medical analogy - is causing the fever?  And why would one expect that the one size fits all prescription is the right answer?

To us it gets down to something that isn’t receiving enough attention.  What are the root causes of the problems that are typically associated with a finding that safety culture needs to be strengthened?  We will share our thoughts, and ask for yours, in an upcoming post.

Upper Big Branch 1

A few days ago the Governor’s Independent Investigation Panel issued its report on the Upper Big Branch coal mine explosion of April 5, 2010.  The report is over 100 pages and contains considerable detail on the events and circumstances leading up to the disaster, coal mining technology and safety issues.  It is well worth reading for anyone in the business of assuring safety in a complex and high risk enterprise.  We anticipate doing several blog posts on material from the report but wanted to start with a brief quote from the forward to the report, summarizing its main conclusions.

“A genuine commitment to safety means not just examining miners’ work practices and behaviors.  It means evaluating management decisions up the chain of command - all the way to the boardroom - about how miners’ work is organized and performed.”*

We believe this conclusion is very much on the mark for safety management and for the safety culture that supports it in a well managed organization.  It highlights what to us has appeared to be an over-emphasis in the nuclear industry on worker practices and behaviors - and “values”.   And it focuses attention on management decisions - decisions that maintain an appropriate weight to safety in a world of competing priorities and interests - as the sine qua non of safety.  As we have discussed in many of our posts, we are concerned with the emphasis by the nuclear industry on safety culture surveys and training in safety culture principles and values as the primary tools of assuring a strong safety culture.  Rarely do culture assessments focus on the decisions that underlie the management of safety to examine the context and influence of factors such as impacts on operations, availability of resources, personnel incentives and advancement, corporate initiatives and goals, and outside factors such as political pressure.  The Upper Big Branch report delves into these issues and builds a compelling basis for the above conclusion, a conclusion that is not limited to the coal industry.

*  Governor’s Independent Investigation Panel, “Report to the Governor: Upper Big Branch,” National Technology Transfer Center, Wheeling Jesuit University (May 2011), p. 4.

The Massey Mess

A postscript to our prior posts re the Massey coal mine explosion two weeks ago. The fallout of the safety issues at Massey mines is reaching a crescendo as even the President of the United States is quoted as stating that the accident was "a failure, first and foremost, of management."

The full article is embedded in this post. It is clear that Massey will be under the spotlight for some time to come with Federal and state investigations being initiated. One wonders if the CEO will or should survive the scrutiny. For us the takeaway from this, and other examples such as Vermont Yankee, is a reminder not to underestimate the potential consequences of safety culture failures. They point directly at the safety management system including management itself. Once that door is opened, the ripple effects can range far downstream and throughout a business.

“Safety is Job One” at Massey

“Massey Energy's members are the best trained, most productive and safest miners in the world. They embrace the company's commitment to safety - including ongoing comprehensive training and use of state-of-the-art technology and equipment.”

The above quote is taken from Massey Energy’s website where safety is touted as a company ethic. Sadly, even if true there are 25 fewer of them today.

Non-fatal days lost (NFDL) rates are the benchmark used by the coal industry to measure safety. And the industry average is 3.31. (Imagine the NRC's ROP including an indicator like NFDL.) Violations (cited by the Mine Safety and Health Administration) are also an indicator for mine safety. But according to Massey CEO Blankenship, “Violations are unfortunately a normal part of the mining process.”* And “We don’t pay much attention to the violation count.”**

Massey’s commitment to safety came under scrutiny back in 2005 after Mr. Blankenship sent a memorandum to his deep mine superintendents stating:

“If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e., build overcasts, do construction jobs, or whatever), you need to ignore them and run coal. . . . This memo is necessary only because we seem not to understand that coal pays the bills.

In a follow-up memo a week later, Mr. Blankenship said some superintendents might have interpreted his first memo as implying that safety was a secondary consideration; in the second memo he called safety the company’s ‘first responsibility.’” *[emphasis added]

What do you think was the takeaway by the organization as a result of the two memos?

Massey is an easy target at the moment and we are not using these quotes to pile onto the outrage associated with the recent mine explosion. What is obvious is that the avowals by Massey that “Safety is Job One” are meaningless in the face of the actual behavior of the corporation. This was the point in our March 12, 2010 post re BP and their refinery safety issues. A very real problem is that virtually everyone engaged in complex and risky industrial activities makes the same safety pronouncements whether or not they live by them. Thus, the pronouncements are robbed of any real significance or value - not just to those who disregard them, but to all. It sounds a lot like stuff that politicians say and which no one believes, because they all say it and none of them means it.

So our takeaway is a caution to nuclear organizations not to reflexively broadcast and re-emphasize their commitment to safety as a response or correction to an identified safety culture problem. Or at least any such emphasis needs to be in a context coupled to specific actions that actually sustain and reflect that commitment. As we comment regularly in this blog, we view safety culture as a dynamic system and one aspect of that system is the interplay of management reinforcement and organizational trust. Reinforcement of safety priority tends to be the focus of a lot of communications and training, reasserting values and beliefs, etc. while trust tends to be determined by people’s perceptions of actual decisions and actions. When reinforcement and actions are congruent, trust is elevated. When management says one thing but acts in ways that are inconsistent, or appear inconsistent, trust evaporates and the attempt at reinforcement may make things worse.


* “Deaths at West Virginia Mine Raise Issues About Safety,” NY Times (April 6, 2010).
** “Massey’s Long History of Coal Mine Violations," The Energy Source blog at forbes.com (April 6, 2010).