Westray Mine Public Inquiry Commission

Stellarton, Nova Scotia
Day 77     22 July 1996

Oral Submissions
of the United Steelworkers of America
by Mr. David J. Roberts

Mr. Commissioner, as you noted at the start of these public hearings, this Inquiry was given a very broad mandate, one that encompasses all aspects of the financing, development, operation, regulation, and supervision of the Westray Mine.

The Order-in-Council which established that mandate stated a number of questions.  The first question is the most important because its answer leads inevitably to the other issues with which the Inquiry must deal.  That question is, was the explosion at the Westray Mine preventable?  We submit that having heard 76 days of testimony, the answer can only be yes, the explosion was preventable.

The evidence shows:

(1)  The explosion on May 9th, 1992 would have been prevented if the operator of the mine had acted prudently and followed widely accepted safe mining practices;

(2)  The explosion would have been prevented if the public officials responsible for regulating the mine had enforced the statutes within their authority and carried out their duties diligently.

The evidence shows the Westray Mine was allowed to operate in a regulatory vacuum with public officials deferring to mine managers rather than carrying out their statutory responsibilities.

The evidence does not show that the people who were underground on the morning of May 9th were themselves engaging in unsafe acts which in any way contributed to the explosion.  They were mining coal and supporting the roof, following the directions of the mine operator and using the equipment supplied by the mine operator and approved by the inspectors.  There was no evidence that the crews working in the Southwest section that morning did anything other than what was expected of them and we ask the Inquiry to state this conclusion emphatically.

Attempting to individualize the cause of the explosion to the actions of a single miner or a single crew may suit the purposes of some but this would be a complete distortion of the evidence before the Inquiry.

In our submissions today, we will review the evidence as it relates to the actions of three groups, the regulators and public officials associated with the mine, the men and women who worked at the mine, and the people who ran the mine.  We will ask you to make findings on that evidence and we will propose reforms to regulations and practices to help reduce the likelihood of tragedies like Westray happening in the future.

It would be difficult to overstate the importance we attach to the report you are about to begin writing.  It is no exaggeration to say that the tens of thousands of our members who work in the mining industry in Canada and the United States are looking to you for a clear, decisive statement that will give them the assurance that at some time in the future they will not be in the position in which the employees of Westray found themselves.

From our perspective, your recommendations should reflect four broad principles:

First, we must say no to the deregulation of health and safety.  This is a public issue that concerns the whole community and our laws must reflect that.

Second, the people who represent the public interest must be trained and professional.  They must be the equal of those they regulate.

Third, the regulator must be accountable to workers and to the community at large.

Fourth, the process of regulation by which the public interest is protected must be transparent and open to public scrutiny at every level.

If these principles are embodied in your recommendations your report will be a milestone in the evolution of occupational health and safety in North America.

I will begin my review of the evidence with the evidence about the role of the regulators.

From the perspective of the United Steelworkers of America, the most striking and most troubling feature of the evidence to date is the picture that is drawn of a regulatory system that failed to work.  The failure of the regulatory system was not an abstract problem for the people who worked at the mine.  In a very real way, they depended on the regulators, the inspectors, and the government mining engineers.  They had no union.  They had no functioning health and safety committee.  Their boss, the underground manager, was not the kind of person they could turn to for support or reassurance.  The failure of the regulators to place effective constraints on the operators of the Westray Mine left the mine employees without any protection from an employer that did not place a priority on working safely.

This regulatory vacuum did not arise by accident.  It was created by politicians who valued economic growth over occupational safety and by bureaucrats who deferred to the mine operators at almost every opportunity.

There can be no doubt from the evidence that the Westray Mine project enjoyed a special place in the hearts and minds of Nova Scotia's political leaders.  For Donald Cameron, the establishment of the mine was a prime cause.  Through his efforts and the efforts of likeminded politicians, Westray came to life surrounded by government support and concessions.  Indeed, it is clear from the evidence that there would have been no mine without this support.

Even a cursory review of the support package shows what a good deal Messrs. Frame, Pelley, and Phillips, helped at strategic points by Mr. Cameron, were able to get in exchange for their investment in this project.

There was the provincial loan of twelve million dollars, the interim loan of eight million, the guaranteed sale to Nova Scotia Power, the generous take-or-pay deal, the federal loan guarantee and interest subsidy, and the permission to take two hundred thousand tons of coal from the strip mine as a "test sample".

When you compare the generous treatment the company received to the declining resources provided to the mine safety division of the Department of Labour, a clear picture of the priorities of the Provincial Government emerges.  The inspectors in the mine safety division knew they were not ready for Westray and they asked for help.  They asked for a new, engineering position.  They asked for training on the mining method to be employed by Westray.  They asked for permission to hire independent consultants to provide expert advice on roof control.  Each request was turned down.  There was no new money to help the inspectors meet the challenges of Westray.  In fact, the staff of the mine safety division was cut at the same time that Westray was struggling to get into production.  As John Smith testified, perhaps they should have gone to Clifford Frame for the money.

We submit that you should find that the Government of Nova Scotia which generously assisted in the establishment of the mine failed to provide adequate resources to the public officials who were supposed to inspect the safety of the mine.  Economic development was more important than the safety of workers.

A second point of significance in the government's support for the mine is the creation of a political aura around the mine and its operations.  This aura inevitably affected the regulation of the mine.  While no public servant testified to having been directly influenced by a politician, there are several instances in the evidence which show that regulators carried out their duties fully conscious of the political controversies surrounding the mine, and were, in fact, influenced by those controversies.

Albert McLean finally took steps to talk to safety representatives at Westray, not because it was something he should have been doing all along, but because an opposition politician was attacking Premier Cameron over safety concerns at the mine.

John Smith admitted in his interview with the Commission that the political sensitivity of Westray may have affected the way he carried out his duties at the mine.

Claude White systematically altered minutes of meetings involving government officials and the mine operators to remove any references which might be embarrassing to the government, the company, or both.

Don Jones warned Gerald Phillips that the government was coming under increasing pressure because of the roof falls at Westray and it might be forced to do something unpopular.  Although Mr. Jones has apparently forgotten that he made the statement, it is recorded in minutes made at the time and was recalled by other witnesses.

Pat Phalen fretted about the negative "spin" put on Westray controversies by senior officials in the Federal Government.

John Mullally admitted in testimony that he was aware of the political significance Westray had for the government and felt it desirable for the Department of Resources to help Westray meet its production committments.

Finally, there is Donald Cameron.  Judging by his testimony, Westray was all about politics from the start to the finish and even today he is unable to distinguish political posturing from objective reality.

We submit you should find that the public officials responsible for regulating the Westray Mine were affected in the performance of their duties by political controversies surrounding the mine.

The third reason for looking closely at the government support given to Westray is because in significant instances, the people who helped put together the package of assistance to make Westray happen were the same people who were responsible for regulating the mine.  This created a serious conflict of interest at the highest level of the Department of Natural Resources, a conflict which was recognized by the Department's senior solicitor at the time.

Consider this.  In November and December of 1991, Pat Phalen, the Director of Mines, had reached the conclusion that Westray was breaking the Mineral Resources Act by not following approved mine plans, something that could lead to the loss of the company's mining permit.  At the same time, Pat Phalen was helping Westray get an amendment to the take-or-pay deal that Westray wanted but which put the Province at a disadvantage.  Also at the same time Pat Phalen was helping Westray get access to the coal in the strip mine, the 200,000 ton sample that was no sample at all, in order to help the mine meet its production targets.  The Deputy Minister of Natural Resources, John Mullally, was candid enough to admit in his testimony that it would be fair to conclude the Department gave Westray preferential treatment in order to help the project succeed.  That appears from the evidence to have been the main concern of the Department.

We submit you should find that the involvement of public officials responsible for regulating the Westray Mine in measures intended to promote the success of the mine created a conflict of interest which weakened the regulatory system.

The structure of the regulatory system in which Westray operated can be divided into two main areas, the planning and approval process in the Department of Resources (formerly the Department of Mines) and the operational regulation carried out by the Department of Labour.  The evidence clearly shows that both failed.

The Nova Scotia Department of Resources failed to enforce key provisions of the Mineral Resources Act in relation to the Westray Mine and it failed to carry out its statutory duty to ensure that Westray engaged in mining that was both safe and efficient.

The Department's initial review of the Westray proposal did not recognize challenges posed by the Foord seam and the means by which Westray planned to mine it.  The Department was satisfied the proposal conformed to general engineering principles and would employ a standard mining method to extract the coal.  It presumed the operators were competent people who would perform the detailed engineering and planning that was necessary before the development phase began.  The only voice of caution, that of geologist Robert Naylor, was largely ignored during the approval process.

The position of this Department stands in sharp contrast with the view of the Westray project that developed in the Federal Government.  After a brief technical review of the proposal, officials of Canmet concluded that while the project was feasible, the combination of features it presented would create an unusually complex mining environment which would stretch the limits of existing technology.  The Canmet review also noted that the mining sections in the feasibility study on which the project was to be based were brief and general in content and that much more detailed engineering work should be done before the project began.  The evidence of Dr. Thomas Brown was that any experienced mining engineer or regulator should have come to the same conclusion.

The officials in the Department of Resources who reviewed the Westray proposal should have recognized the serious challenges facing the operator and should have required more detailed and comprehensive mine plans before approving the project.  Had they done so, they might have forced the operator to confront problems that were to bedevil the mine during its short life.

The Department's approach of deferring to the mine operator rather than carrying out its statutory responsibilities is illustrated by the issuance of a mining permit in August of 1991.  The permit was required under the new Mineral Resources Act.  Under the new Act, a permit would be automatically issued to any mine that held a lease and was producing saleable coal by the date on which the Act came into effect, March 6, 1991.  The evidence is that Westray had a lease but was not producing coal for sale by the required date.  Kevin Atherton, whose job it was to trace the production of coal at Westray, was absolutely certain in his testimony.  The earliest Westray started producing coal that could be sold was June, not March 6th.

The person who recommended that the permit be issued was Don Jones.  He testified that he did so on the basis of assurances from Gerald Phillips that the mine qualified.  However, he took no steps to verify Mr. Phillips' information.

If Westray had been required to apply for a permit under the new Act it would have had to meet the more rigourous requirements of the new legislation and would have had to submit detailed engineering studies on mining methods, ventilation, and ground support for each phase of development of the mine.  This is the work several witnesses testified should have been done by Westray but was not done.

We submit you should find that Westray was not entitled to receive the mine permit that was issued to it in August of 1991 and that by granting the permit the Department of Resources allowed Westray to proceed with development without having done the engineering and planning required by law.

There has been much testimony about the changes to Westray's mine plan that were approved by the Department of Resources.  I want to focus my remarks on the proposed change that was not approved by the Department, the plan submitted in October of 1991 and the process that followed the rejection of that plan.

The evidence is that on October 3 Gerald Phillips submitted a proposed mine plan that was significantly different from the approved plan.  This submission triggered a searching re-analysis of Westray Mine planning within the Department.  On November 20, Don Jones produced a highly critical assessment.  Westray had made revisions to its main tunnels without fully realizing the implications of the changes.  The company had rushed into the Southwest block to get coal early and changed the original alignment of the section, exacerbating ground control problems.  It proposed penetrating the barrier pillar around the Allen mine without doing any geotechnical work.  It realigned other mining blocks without providing justification.  It changed the mine design under the Trans Canada Highway, increasing the danger of subsidence under the Highway.  Finally, it failed to show how depillaring operations were to be conducted without endangering the safety of miners.

Don Jones' analysis was endorsed by his superior, Pat Phalen.  Mr. Phalen passed on the Jones critique to the Deputy Minister of Natural Resources and added his own assessment: Westray was clearly in violation of the Mineral Resources Act, was making important decisions on its mine plan without sufficient input from experienced professionals, and could lose its mining permit.

At this point, it appeared that the Department had recognized serious deficiencies in the planning of the Westray Mine and was determined to bring the operation back into conformity with the Mineral Resources Act.  However, instead of maintaining its resolve, the Department capitulated.  Gerald Phillips simply denied criticisms of Jones and Phalen.  He submitted new plans, one showing the mine consisting of main tunnels only, the other showing a plan for the Southwest section that was unusual, difficult to execute, and potentially dangerous.  Both were approved.

There has been no credible explanation in the evidence for the dramatic change in the position of top officials in the Department of Resources during this period.  Their resolve was clear in November.  The Department's solicitor believed they were about to stop the mine and this is consistent with the documentary record.

During their testimony before you, both Mr. Phalen and Mr. Jones tried to lessen the impact of their written words by suggesting they now believe they had exaggerated their concerns.  Their memoranda speak for themselves and they stood on the record for almost five years without being withdrawn or amended.  That is the evidence you should believe.

In the end, we are left to speculate about what happened in the Department of Resources in these weeks.  Was Gerald Phillips able to persuade John Mullally or Pat Phalen to back off?  Did anyone else intervene?  Were the regulators hobbled by the work they were doing to support the mine and keep it in production?

What we do know is that after this episode the operators of the Westray Mine acted as if they could develop the mine as they saw fit regardless of the approvals issued by the Department.  The ink had barely dried on the approval for the plan for the Southwest section when Westray began developing a different area of the section with a different pillar design.

We submit you should find that the failure of the Department to enforce the Mineral Resources Act in relation to the Southwest section in the months leading up to the explosion is one of the most serious lapses in the exercise of regulatory authority that emerges from the evidence.

The explanation, given in testimony, is that even though they were underground several times in this period and even though they participated in discussions about problems being encountered in the Southwest section, neither Don Jones nor his colleague, John Campbell, realized what was going on.  Both of these men are mining engineers.  Mr. Jones claimed he didn't know what the actual mining was and Mr. Campbell did not know what the approved plan was.  We submit that this is not acceptable performance of the important public duties held by these men and we ask you to find that they were derelict in not determining how Westray was mining the Southwest section in relation to the approved plan.

We submit further that there are serious issues of credibility concerning the testimony of Don Jones and John Campbell which suggest they did know what was going on in the Southwest section but, for some reason, did nothing about it.

There is evidence before you in Mr. Jones' statements to the RCMP and Nancy Ripley-Hood's statement to Commission counsel that as a result of the experience with Westray in October and November of 1991 the Department had decided to keep a closer watch on the mine to ensure that it was following the approved plan.  It just makes sense that this would happen.  Seen in that light, the idea that Mr. Jones or Mr. Campbell noticed nothing amiss in the series of visits they made underground is even harder to accept.

As well, you have direct evidence that the Department of Resources knew how Westray was mining the Southwest section before the explosion.  Trevor Eagles testified that on April 10th Don Jones was at the mine and requested Westray's current mine plans.  Mr. Eagles gave him three plans, two of which clearly showed how the Southwest section had been mined to date and the plans for further mining.  Mr. Eagles' testimony is supported by a memo he wrote to David Waugh on April 10th advising him that the plans were given to Don Jones.  Mr. Jones was in Stellarton on April 10th to visit the strip mine.

Trevor Eagles' evidence is credible and believable.  In the absence of any explanation from Don Jones we can only conclude that Mr. Jones did not tell the truth when he denied knowing about Westray's mining activities in the Southwest section until the morning of May the 9th.  Mr. Jones knew by April 10th, at the latest, that Westray had abandoned the approved plan for the Southwest section, had implemented a plan for extracting coal that had failed, and had started another development that was contrary to the approved plan.  The question then becomes, why did he do nothing about it?  Here again we have no answer but that is a question we believe should be asked of Mr. Jones before these hearings end.

This is important because Don Jones testified that if Westray had submitted the plan for the Southwest section as it was executed, he would not have approved it.  That means that if the Mineral Resources Act had been followed and enforced in relation to the Southwest section, one of the key factors in the explosion, a large body of gas in the failed district, might not have been there.

Second, by not acting when Westray had deviated significantly from the approved plan for the Southwest section, senior officials in the Department of Resources failed entirely to meet the statutory duties imposed on them by the Mineral Resources Act.

The other major area of regulation of the Westray Mine with which we are concerned was the operational regulation carried out by the Department of Labour.

We submit you have abundant evidence before you to conclude that the responsible officials in the Department of Labour failed to carry out their statutory duties.  They did not enforce the Coal Mines Regulation Act.  They condoned obvious breaches of the Act.  They ignored or overlooked serious safety hazards.  They did not enforce the Occupational Health and Safety Act.  Rather, they used the shared responsibilities that underlie the Act as an excuse for inaction.  They were, in a word, incompetent.  Moreover, their lax regulation of the operation of the Westray Mine allowed conditions to persist that were directly linked to the cause of the explosion on May 9th.

The Coal Mines Regulation Act confirms a broad mandate on a mine inspector.  He is empowered to do whatever is necessary to ensure the health and safety of miners and anyone else employed in or about a mine.  That is the duty of the inspector and it is against that mandate that the actions of the Westray inspectors must be judged.

Their failures are well catalogued in the evidence; overlooking the absence of a barometer and water gauge at the mine; doing nothing about the illegal, twelve hour shifts; failing to enforce conditions on the use of non-flame proof diesel equipment; failing to enforce reporting requirements for mine officials; doing nothing about the storage of fuel underground and the use of torches and welding equipment; failing to monitor the training of miners.

I want to focus on three areas of particular concern in the Department of Labour's dealings with Westray.  These are coal dust, ventilation, and the Department's response to warnings about safety that came from the work force.

First, coal dust.  Some basic facts emerge from the evidence.  From the beginning to the end of the mine, the operators had no program to remove coal dust from the mine or to apply stone dust.  Efforts that were made were ad hoc and sporadic.  The dust problem grew as the mine developed.  It was obvious to miners and visitors.

The inspectors were aware of the problem and began documenting their concerns in July of 1991.  In September they exacted a promise from the operator that a program for the control and inerting of coal dust and the sampling of dust would be in place by the end of the month.  As we know, that promise was never kept.  Instead it was renewed regularly by the operator until the coal dust exploded.

We submit you should find that the repeated failure of the Department of Labour to follow through on its request for a program to control coal dust at Westray was a fundamental lapse in the exercise of its responsibilities under the Coal Mines Regulation Act.

You will recall Claude White's tortured attempts to obscure the obvious meaning of what he and his inspectors were saying on this issue.  There can be no doubt that they were asking for a stone dusting program in the months leading to the explosion.  They knew the difference between a stone dusting program and a dust sampling program.  That is why they were asking for both.  We submit to you that you should reject Mr. White's explanation on this point and give the words he and his inspectors used their obvious meaning.

Nothing better illustrates the incompetence with which the inspectors dealt with the dust problems at Westray than their actions after the coal dust orders were issued on April 29th.  The order had four parts: The coal dust was to be removed immediately and stone dusting was to be done immediately.  Within fifteen days, a stone dusting plan was to be developed and filed and within fifteen days a dust sampling program was to be developed and filed.  The company was to notify the Department, in writing, when it had complied with each part of the order.  As we know from the evidence, nothing was done.  Mechanics were directed to begin installing a sprinkler system on the main slopes but there was no removal of coal dust and no application of stone dust.

What is worse, nothing was done by the Department to monitor compliance.  Albert McLean planned to come back a month later.  Claude White considered sending him back in a couple of weeks.

The evidence shows that Albert McLean actually visited the mine property on May 6th.  He was there for about four hours but he did not go underground, even though he knew the Department had not received any communication from Westray notifying it of compliance with the order.  He made no inquiries about what was being done about the order.  If he had bothered to go underground on May 6th, he would have found the mine much as it was on April 29th.

We submit you should find that by not taking any action to monitor compliance with the orders of April 29th, the responsible officials in the Department of Labour failed in their statutory duties.  Implicit in the orders of April 29th was the recognition that the coal dust problem at Westray was a threat to safety that required urgent attention.  The failure of the Department of Labour to act accordingly is, in our submission, indefensible.

The inspectors also failed to respond to a serious threat to the safe ventilation of the mine that was obvious on April 29th.  That threat was posed by the plywood barriers to the abandoned Southwest 1 section of the mine.

The evidence shows that the mine inspectors lacked the capacity to deal with mine ventilation an anything but the most rudimentary level.  During his testimony, Albert McLean admitted his lack of knowledge about ventilation.  He was able to take gas readings in the general air body but that was it.  He didn't understand the phenomenon of methane layering.  He did not check air volumes or velocity.  He did not review the company's ventilation surveys or its ventilation plans.  Indeed, during his testimony, Mr. McLean showed that he did not understand the ventilation route in the Southwest section as it was in the days immediately before the explosion.  Albert McLean was responsible for inspecting the Westray Mine in relation to ventilation issues.  We submit he was not capable of carrying out that responsibility.

The inspectors knew methane gas was being produced by the crushing of pillars behind the barriers to the Southwest 1 section.  They knew plywood barriers could not keep gas from coming out.  They knew the air intake to the Southwest 2 section flowed past the barriers, and the barriers were leaking.  Westray employees recorded methane readings of anywhere from 1.25 to 9% within ten feet of the barriers.  The barriers had buckled from the weight of the roof above.  By April 29th, the holes were big enough to allow a person to stick their head through if they were so inclined.  On that date, three inspectors toured the mine and had a look at the barriers.  As a result of their inspection, they learned gas was escaping from the barriers.

There is conflict in the evidence on this point.  We submit Albert McLean's testimony that he recorded no gas at all when he checked the barrier on B road is not believable.  We know the stopping had buckled.  We know that same day Trevor Eagles recorded readings of between 1.25 and 2.5% methane ten feet from the barrier.  Claude White testified Mr. McLean told him he recorded some gas that day but Mr. White did not ask how much.  After the explosion the Department recommended charges under the Occupational Health and Safety Act against Westray based on Mr. McLean recording a reading of 4.0% methane at the barrier on April 29th.  Those recommendations were reviewed by Mr. McLean and Mr. White before they were passed on.  The reading could not have been made on March 30th as was suggested in some questions here because on March 30th there was no barrier.

It is likely that the gas from the Southwest 1 section played a significant role in the explosion on May 9th.  Inquiry experts agree that conditions were right for the gas to layer at the roof of the roadways leading to the working faces.  This gas became the fuel that ignited the coal dust.

We submit you should find that Albert McLean recorded significant levels of methane at the barrier to the Southwest section on April 29th and that this constituted a serious violation of the Coal Mines Regulation Act.  You should find that Mr. McLean and Mr. White were derelict in their duty under the Act in taking no action after inspecting the barriers on April 29th.

The third area in which the exercise of regulatory authority by the Department of Labour broke down involved the safety concerns of the miners themselves.  The claim, made by Albert McLean, and others, that the miners never told them what was going on, is not supported by the evidence.  The evidence shows Mr. McLean and his colleagues were fully informed about the concerns of the miners through direct and indirect contact.  The evidence shows further that Mr. McLean and Claude White deliberately misrepresented the concerns of miners in two significant instances.

One of the most troubling stories to emerge from the evidence is the story of Carl Guptill.  This miner, an experienced health and safety representative at another mine, was injured at Westray in December of 1991.  He complained to the Department of Labour about his injury and about a series of other safety hazards in the mine, including unsafe work practices, excessive dust and methane, poor ventilation, and unqualified mine officials.  Before anything was done, Claude White went to Gerald Phillips, told him about the complaints and identified Mr. Guptill as the complainant.  The Department's investigation was compromised before it began.

Then Mr. Guptill was interviewed by inspectors McLean and Smith.  For some reason, they each took separate statements about the injury but recorded nothing about the other complaints even though they were much more serious.  Mr. McLean closed his investigation after meeting briefly with three of the men on Mr. Guptill's crew and gathering statements about the accident that had been taken by the company.  He produced three versions of the report on the incident dealing with the injury but nothing about the other complaints.  In the meantime, Westray terminated Mr. Guptill's employment.

We submit the evidence points strongly to collusion between the Department of Labour and Westray over the Guptill case.  How else are we to explain the immediate disclosure of the complaints to Gerald Phillips, the failure to investigate serious safety issues, or the distortion of those complaints in the reports produced by Albert McLean.  And what else would explain Claude White's decision to change the minutes of a meeting with the company to make it appear as though a lengthy discussion of the Guptill case had never taken place.  While there may be no direct evidence that the Department and Westray conspired to silence the Guptill complaints, there is reason for deep suspicion.

One thing is clear.  If the Department's intention had been to discourage any other miner from coming forward with concerns about safety at Westray, it could not have handled the Guptill case any better.

About six weeks after Carl Guptill came forward, Albert McLean had another opportunity to hear directly from Westray miners about safety concerns in the mine.  One evening he met at the mine with three employee safety representatives.  They talked for about an hour about many of the same hazards Carl Guptill had warned about; excessive gas, dust, diesel equipment that travelled throughout the mine, the use of torches and welding equipment underground, untrained miners, and unqualified supervisors.

Instead of taking any action, Albert McLean produced a memo for Claude White that hid the fears of the miners.  The memo contained no reference to the concerns that had been expressed by the safety representatives.  It made it appear as if they had engaged Mr. McLean in a general discussion of a number of topics without any mention of actual conditions in the mine.  We submit you should find Albert McLean's memo to Claude White was another deliberate attempt to distort the record of discussions of safety problems at the Westray Mine.

The mine inspectors got other warnings about how bad things were at Westray.  Bud Robinson called Albert McLean at home and spent an hour voicing his concerns.  Bob Burchill left a union organizing meeting to tell Mr. McLean the concerns he was hearing.  There is evidence of other, brief encounters between the mine inspectors and miners underground or on the surface.

If they really wanted to know about safety concerns of the miners, the inspectors needed to look no further than the reports of the safety walks which took place in the mine.  The record contains reports on five such safety walks between October 7, 1991 and April 6, 1992.  The reports covered the full range of known safety deficiencies in the mine.  Many of the deficiencies they recorded were direct violations of the Coal Mines Regulation Act.  These reports were circulated to the mine inspectors and Albert McLean, John Smith and Claude White testified they reviewed some of them.

However, the evidence is that no action was taken by anyone in the mine safety division as a result of information acquired from the safety walk reports.

Having reviewed the evidence, the question that emerges is not, why didn't the miners tell anyone about the conditions in which they were working.  The question is, why didn't the inspectors in the Department of Labour respond to the wealth of information they were receiving about conditions underground at Westray.

One reason for the paralysis of the inspectors may lie with the dominant philosophy in the health and safety division of the Department.  It was, and apparently still is, a philosophy of non-engagement that in this case encouraged blind deference to the decisions of the mine operator.  The concept of shared responsibility became a means by which the regulators evaded responsibility.  They deferred to internal safety organizations without first determining that those organizations were in place and functioning properly.  The result was a void that left Westray employees unprotected.  We submit you should recommend changes to the health and safety laws of this province to ensure that internal responsibility never again becomes an excuse for inaction and incompetence on the part of public officials concerned with occupational safety.

I want to turn now to the evidence concerning my clients, the employees of the Westray Mine.

On one point there should be no doubt.  The employees of Westray Coal wanted the mine to succeed and they did their best to see that that happened.  For many, this was the first chance that they had to work at a good paying job close to home.  The promise was fifteen years of employment with a young, forward looking company.

The reality of Westray, they soon learned, was quite different.  Their bosses were more concerned with production than safety and were not competent to run a modern, underground coal mine.  The miners worked in an atmosphere of intimidation, were subjected to abuse from the underground manager, and were threatened with their jobs if they complained about working conditions.

When the miners testified here about conditions underground there were suggestions that they were exaggerating, that it could not have been that bad, that you were getting a distorted picture of life in the mine.  After seventy-six days of evidence, we submit the testimony of the miners has not been contradicted on any significant point.  In fact, their description of working conditions in the mine has been corroborated by their supervisors, by second level supervisors, by the engineering staff, and by senior executives of Curragh.

It has been suggested that if things were as bad as the miners said they were, there should have been more complaints inside and outside the company.  We have already dealt with the series of complaints that were made by the miners to the Department of Labour.  The evidence is there were numerous complaints inside the company as well.  The men took their concerns to their supervisors and their overmen.  They complained to the engineers and to Curragh executives such as Graham Clow.  Some went to Roger Parry and Gerald Phillips.  Given the circumstances, it is not clear what more they could have done to draw attention to their concerns.

Because there has been no challenge to the evidence the miners gave about their working conditions, there is no need to review it in any detail.  I do, however, want to deal with a number of specific issues that arise from the testimony.

The first is training.  One of the most obvious features of the work force as a whole is that it was largely inexperienced and untrained.  Only a small minority of the miners had any experience in underground coal mining.  Of those, fewer still had worked in a mine like Westray.  Most of the miners were from a hard rock background or were new to mining altogether.  That is why the training they were to receive would be so important.

We submit there is ample evidence before you to support the conclusion that the underground employees of Westray were not adequately trained by the company to do the work required of them.  Some received a brief introduction, via video tape, to coal mining.  Others were sent underground without knowing how to operate basic pieces of safety equipment such as a self-rescuer.

Westray had a training program on paper.  But, like so many things at that mine, it did not correspond to reality.

When I think about the lack of training at Westray, I recall the evidence of Matthew Sears, the young man who had his leg caught in the conveyor belt and was almost dragged into the main drive.  Remember how, having never been in a mine before, he was led to the portal by Roger Parry, directed inside and down the slope and then had the door closed behind him.  At this point, all he could think about was how dark the place was and he didn't even know how to turn on the light on his helmet.  It is simply wrong to treat a person that way.

We submit that as part of your recommendations you should propose a minimum training period for all miners to be completed before they go to work underground, followed by a graduated certification process.  The provision of this training should be legally enforceable.

The next issue I want to deal with is the suggestion that underground employees deliberately engaged in unsafe acts that endangered themselves and their fellow workers.  Some of those allegations came inside this hearing and others have come from outside, from someone who has refused to do what my clients did, that is voluntarily agree to testify.  There is no evidence that the underground employees of Westray Coal carelessly or wantonly engaged in unsafe conduct.  As Jay Dooley testified, the underground employees did their best to work safely in the circumstances in which they found themselves.

It has been alleged that some continuous miner operators developed a practice of overriding the automatic shutoff on their mining machines to continue mining the coal face.  There was a lot of testimony on this point and the evidence is clear.  There was no such practice in the mine.  No one saw it done and no one admitted to doing it.  It is not even clear if it was possible to do what was alleged, that is cut coal by simultaneously riding the reset button, operating the cutting heads, and cutting into the coal.  We submit that issue has been put to rest.

Another area of testimony concerns the blocking of ventilation tubing.  The evidence is that this was done on the instruction of supervisors in order to increase air to the mining machine and maintain production.  There is not one instance in the evidence where the miners did this on their own initiative.  There are cases where they would ignore the request or take the screen and plastic blocking the tube down after the supervisor had left the area.

The management at Westray had a policy of blocking ventilation tubes to increase air flow to the mining machines and the miners were in no position to prevent that policy from being implemented.

There is evidence that some miners operated non-flameproof diesel equipment beyond the restrictions that had been imposed by the Department of Labour.  In assessing that evidence you should keep the following in mind.  The employees were never shown the conditions.  Some knew parts of them, others apparently did not.  The non-flameproof equipment was the only way of delivering necessary supplies to the face.  The scoops, which could have done the job, were generally fully occupied with roof control.  Also, it appears from the evidence that the diesel conditions were breached by supervisors, overmen, the underground manager and perhaps even the mine inspector.

When you review the evidence we are confident that you will agree that the employees of Westray did their best to work safely.  They had to cope with roof conditions that were horrendous.  They had a manager who was, to put it mildly, not supportive.  They did not have the internal protections the law calls for and they could not rely on the mine inspectors.  The fact that no one was killed or seriously injured before May the 9th is very much a tribute to their safe work practices.

There can be no doubt that the direct responsibility for the working conditions in the Westray Mine rested with the management of the mine.  In practice, the on-site management of Westray Coal was two people.  One was stretched beyond his limits and the other was unfit to perform the job he held.

In practice, the mine manager and the underground manager controlled most of what happened in the mine.  They established priorities, they hired the staff, they planned the mine and they directed the operations.  The public face of Westray was Gerald Phillips.  He dealt with head-office, the media, the politicians, and regulators.  Underground, the face of Westray was Roger Parry.  Together, they were responsible for creating the working conditions that were described so graphically by the miners in their testimony here.

They were supremely confident in their abilities to manage a modern coal mine.  They did not need an experienced engineering department and it didn't matter that their chief engineer had never worked in a coal mine before, that their geologist had never been in a coal mine, or that their other engineers were right out of school.  The most experienced coal man in the office, the surveyor, Ray Savidge, left in disgust.  His replacement didn't have enough experience to be certified under the Coal Mines Regulation Act.

When they needed help with roof problems, they hired a potash geologist who had never worked in coal.  As a training officer they hired someone who had never worked as a trainer, or in mining, but who knew politicians and who had been on television as a wrestling announcer.

It was as if Gerald Phillips believed he could will the mine to success by the sheer force of his personality.  Of course, he couldn't do it.  He was adept at producing slogans and policies but he could not turn them into reality.  Of the three main hazards in coal mining, the roof, gas, and dust, he did not control any of them.

The mine started behind schedule and never caught up.  Although work was suspended for eight months because of financing delays, no attempt was made to reschedule the production committments in the contract with Nova Scotia Power.  This put the operation under pressure from the beginning and it failed to meet any of its production committments.  Adding to the pressure were roof conditions which were apparently much worse than anticipated.  The frequent roof falls endangered employees, slowed development, and filled the conveyors with waste rock.

Planning was ad hoc, day to day.  They never took the time to develop a full mine plan beyond the general intentions described in the feasibility study.  This is a condemnation of the mine management and the authorities that allowed the mine to begin operation.

Looming production committments led to the decision to change the mine plan in the feasibility study and make an early entry into the Southwest section.  The decision to enter the Southwest section appears to have been made hastily without full appreciation of the conditions that would be encountered there.  The inability to control the roof in the Southwest section led to the adoption and abandonment of a series of mine plans and ultimately an attempt to implement an unusual, if not radical pillar design in the district.  The decision to persist in the Southwest section after the narrow pillars had failed led to the development of the Southwest 2 area.  Each of these decisions appears to have been made in haste, under pressure for production.

You see the same factors, haste and a priority for production, when you review other decisions in the mine; the direction to refuel diesel equipment underground instead of on surface, the routine use of welding equipment and cutting torches underground, the absence of preventative maintenance, the blocking of ventilation tubes, the dangerous efforts to remove equipment from the Southwest 1 panel when it had failed, the refusal to assign production personnel to stone dusting, and the decision not to take steps to remove or contain the gas in the Southwest 1 section.  These were all operational decisions made by Westray management that reflected the assignment of a higher priority to production than to safety.

We submit you should find that the management of Westray Coal was more concerned with meeting its production committments than in protecting the safety of its workers.

The extent of the coal dust problem should have been no surprise to the operators.  The coal floor and the vehicles selected for use in the mine were bound to add appreciably to dust levels in the mine.

Yet the evidence shows that Westray management did not take stone dusting and the removal of coal dust seriously.  The stone dusting that was done was largely cosmetic and served to hide the coal dust rather than deal with the problem.  Don Dooley was under direct orders from Roger Parry not to take men from production in order to stone dust.  Fraser Agnew believed that he would have been fired if he had assigned production crews to stone dusting.

Even when the Department of Labour issued its order on April 29th, Roger Parry was still determined not to sacrifice production for dust control.  Instead of directing miners to stone dust he had a mechanic work on the sprinkler system, something which was of questionable effectiveness but which did not take men away from production.

Mine management didn't take methane seriously either.  They never produced a ventilation plan for the mine and never asked for help from the engineering department to solve ventilation problems.  Elements of the ventilation system were added haphazardly without considering how the pieces fit together as a whole.  Particular problems such as leaking stoppings or cavities which trapped pools of methane in the roof, were simply not addressed.  No consideration was given to methane layering or to the impact changes in barometric pressure had on the movement of gas in the mine.

The gas in the Southwest 1 section was largely ignored.  Initially, nothing was done about the abandoned area.  It was a week before even a rope was put up.  In the meantime, methane gas was building to high concentrations.  After two weeks, plywood barriers were erected.  They were completely inadequate to control gas.  They were not sealed to the ribs or roof and in a few days they had buckled, leaking gas into the intake air for the Southwest 2 area.  These facts were known at the time.  Underground officials were taking readings at the barriers.  Trevor Eagles was taking regular ventilation surveys and sending them to Roger Parry.

Jay Dooley became so alarmed about the situation that on May 5th he went to Gerald Phillips.  He got a promise that the problem would be dealt with.  However, before anything was done, Phillips and Parry had gone to the United States to study roof control.  It seems clear from the evidence that Westray management was preoccupied with ground control problems in the mine and neglected the threat of methane and coal dust.

We submit you should find that in failing to deal with coal dust and in failing to control the methane in the Southwest 1 district, Westray management ignored obvious hazards to the safety of people in the mine.  These hazards were direct factors in the explosion on May 9th.  The decisions of Westray management were conditioned by a belief that they would not be interfered with by regulatory authorities.

There was a sinister side to the management of the mine beyond the incompetence and the neglect.  Experienced coal miners were lured to the mine by a false promise of a solid sandstone roof.  When they learned of the reality, it was too late for most of them to leave.  Inexperienced men who sometimes didn't know better were assigned to the dangerous job of bolting the roof and if they didn't meet performance targets they were subjected to abuse by the underground manager.  If you questioned what was going on you were reminded of all the people looking for jobs in the mine.  Anyone who complained was threatened with dismissal.  Operational decisions could only be made at the top and any supervisor who acted on his own put his job at risk.

However, it would be wrong to suggest that Westray or Curragh were rogue companies that can be set aside as anomalies.  They were part of the Canadian mining industry.  Their executives were leading lights in that industry.  In a sense, the industry as a whole must bear some responsibility for what happened here.  We regret the fact that both the Coal Association of Canada and the Canadian Institute of Mining, Metallurgy and Petroleum refused your invitation to participate in these hearings.

The Institute was the body which awarded Westray the John T. Ryan Trophy for mine safety a few weeks before the mine blew up.  On the basis of the evidence heard here, including evidence of falsification of accident reports by Westray, we submit the Institute should withdraw that award.

It is also wrong to suggest that Gerald Phillips and Roger Parry were off on their own in Nova Scotia doing what they were doing without the knowledge and support of the parent company, Curragh Resources.  The evidence is that Clifford Frame and Marvin Pelley were very much involved in the critical decisions about the Westray Mine.  They should also be accountable for what happened here and we urge you to continue your effort to bring them to the Inquiry.

It is clear that the conditions for the explosion were not created by the men who were underground on the morning of May 9.  They were not responsible for the excessive coal dust or gas.  While we will not be able to determine with certainty where ignition occurred, we submit the evidence suggests the bolting machine next to the continuous miner on Southwest 2 Road was the most likely cause of a spark that ignited methane in the ceiling.

There has been no evidence that challenges the expert testimony from Reg Brookes and Malcolm McPherson about the propagation of the explosion once the methane fire was ignited.  The fire travelled along under the roof until there was a methane explosion which triggered a coal dust explosion.

We submit you should find that conditions were right for the layering of methane gas in the roadways leading to the working headings of the Southwest section in the hours preceding the explosion.  The expert evidence of Dr. McPherson and Westray's own ventilation surveys show that the ventilation at the face of these headings could not prevent the layering of gas produced there.  It is also likely that the gas leaking from the Southwest 1 section was also layering and was being drawn to the headings.  This process would have been increased by the steady drop in barometric pressure in the seventy-two hours preceding the explosion.

The United Steelworkers of America has a deep interest in the recommendations for regulatory reform which will form part of your report.  We intend to make more detailed proposals in our written submissions.  Today, we will identify some of the major principles we submit should guide your reform proposals.

First, we know the current Coal Mines Regulation Act will be replaced.  We also know that much work has been done already in the Department of Labour on drafting a new Act.  There may be parts of these proposals that should be adopted.  However, this Commission should draft its own proposals based on the evidence heard here and the recommendations you have received.

We urge you in the strongest terms to resist the tide of deregulation in your recommendations.  Westray is an example of what can happen with the deregulation of occupational health and safety.  There was complete deregulation here because the authorities did not enforce the law.

We submit you should look at the MSHA regime in the United States and recommend a system of mandatory duties for mine inspectors, a kind of checklist.  There should be a mandatory investigation process following a safety complaint from a miner or miner's representative.  Also borrowing from MSHA, new regulations or regulations that have been challenged should be subject to public review.

Unlike MSHA, we submit your recommendations should retain a general duty for the operator to do what is necessary to maintain a safe work environment and require inspectors to enforce that duty.  As well there should be training and certification of mine inspectors.

The United Steelworkers of America supports the adoption of a detailed enforceable code of practice, such as in British Columbia.  The code should be subject to periodic review by employers and employee representatives.  Variations from the code should be allowed only if they further the cause of health and safety.  Penalties for violations of the code should be severe and should extend past senior management to the directors of the company.

As in British Columbia, the planning and permitting process in mine development should be open to public scrutiny.  The safety of employees must be considered in approving mine plans and changes to mine plans.  That is the work of the Department of Resources.  The evidence here has shown that removal of mine inspectors from the authority of mining engineers in the Department of Resources created a dangerous gap in the system.  We submit that gap should be closed by the return of the mine safety division and the mine inspectors to the Mines and Energy Branch.  Responsibility for industrial development through mining should go to another department.

Provisions should be made for the Department of Resources to order independent review of a company's mine plans on the initial permit application and at any time during the operation of the mine.  This review would be made at the expense of the operator.

We submit your recommendations should take account of the abuse to which the concept of internal responsibility has been subjected in this affair.  Internal responsibility was never intended to promote the abdication of responsibility by statutory agencies.  Only a regulatory authority is able to ensure the elements of the system are functioning as intended.  Internal responsibility assumes an equality of employee and employer in the work place.  In practice, that equality is often a myth, especially in an unorganized environment such as Westray.  Only the regulator has the power to ensure that public laws are respected and enforced.

There is another interest that must be represented here, beyond that of employees and employers, and that is the public interest.  The community has an interest in seeing that its men and women are not killed or injured trying to earn a living.  It has an interest in seeing that people are not forced to choose between working dangerously and being unemployed.  And it has an interest in ensuring its citizens do not suffer the way the people of this community have suffered as a result of this tragedy.

This public interest must be protected by a responsible public authority supported by the law.

I began my remarks by describing the four principles we say should be embodied in your recommendations — stop deregulation, train the inspectors, make the regulators accountable, and make the system transparent.

However, if you produce the kind of report we are confident you will, it will be of no value unless it is put into action.  Today we put the government on notice that we will not let your report gather dust.  We will insist on having your recommendations implemented and we will not rest until they are.  If you produce the kind of report we expect you will, we will take it to the government of every province and territory in the country and work hard to have your reforms adopted.

In that sense this is just the first step in righting the wrongs of Westray.

Mr. David J. Roberts
Pink, Breen, Larkin, barristers and solicitors

Oral Submission of the United Steelworkers of America
David J. Roberts

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