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Aracoma widows again question lack of Massey prosecution

CHARLESTON, W.Va. -- As a federal judge prepares to sentence four foremen from Massey Energy's Aracoma Alma No. 1 Mine who pleaded guilty to mine safety crimes, the widows of two miners who died in a January 2006 fire at the mine are again questioning why prosecutors did not go further up Massey's management hierarchy.

Last week, Bruce Stanley, a lawyer for the widows of miners Don Bragg and Ellery Hatfield, wrote to U.S. District Judge John T. Copenhaver Jr. On Thursday, Copenhaver is scheduled to sentence four foremen who earlier this year pleaded guilty to misdemeanor criminal violations of federal mine safety laws.

Stanley said in the Dec. 2 letter that his clients, Delorice Bragg and Freda Hatfield, are not seeking harsher sentences for the four foremen, Edward Ellis, Donald Hagy, Michael Plumley and Terry Shadd.

"Let me be perfectly clear that the widows do not wish to make it any harder on the four gentlemen set to be sentenced," Stanley wrote. "It remains the widows' position that the upper level mine and company managers are more responsible for the conditions that existed at the Alma No. 1 Mine, even if the government has concluded that criminal culpability against them cannot be established."

U.S. Attorney Booth Goodwin has said the filing of charges against the foremen "concludes the investigation" of the Aracoma Mine fire.

Stanley sent Copenhaver a copy of a video deposition of Johnny Jones, who became president of Massey subsidiary Aracoma Coal Co. after the January 2006 fire, and asked the judge to view the video prior to Thursday's sentencing hearing. Jones was interviewed by Stanley as part of a separate lawsuit, now settled, filed against Massey by miners who survived the 2006 fire.

"It offers what we believe to be compelling insights into that company's attitude regarding both its earlier course of criminal conduct and its perceptions of the repercussions regarding the same," Stanley wrote to the judge.

Among other things, Jones says in the deposition that he was not aware of any disciplinary action taken by Aracoma Coal against any employees who were involved in the fatal fire.

At least five foremen from the mine have pleaded guilty to criminal violations, all relating to the lack of required emergency drills at the mine. One of them, David R. Runyon, was already sentenced to a $1,000 fine for not conducting escapeway drills.

During the Jan. 19, 2006, fire, a crew of miners ran into thick, black smoke in their primary escapeway tunnel and had to try to find another way out of the mine. Two workers, Bragg and Hatfield, became separated from the group, got lost, and eventually succumbed to the smoke.

U.S. Mine Safety and Health Administration investigators cited a variety of major safety violations that led to the fire, including "prolonged operation" of a misaligned conveyor belt and allowing large spills of combustible coal dust and grease to build up on the belt.

But criminal charges in the case have focused on violations that could have hampered miners trying to evacuate the mine after the fire had started.

In December 2008, Massey subsidiary Aracoma Coal Co. agreed to pay a $2.5 million criminal fine and pleaded guilty to 10 charges, including a misdemeanor -- failing to replace a ventilation wall that could have kept smoke out of the escapeway -- that prosecutors said "resulted in the deaths" of Hatfield and Bragg. The plea deal included one felony, falsifying a Jan. 7 entry in the mine's record book to make it appear that two different escape drills had taken place.

At the time of the plea deal, prosecutors agreed not to pursue charges against the Massey corporate parent or any of its officers or employees, saying the government "does not have evidence" that Massey knew or approved of the record book falsification.

The day the plea deal was announced, a Massey news release quoted Jones saying, "While we will never forget the loss of our two members, resolving these issues with the U.S. Attorney and MSHA will help all of us at Aracoma Coal Co. move forward from this tragic accident.

"Since the fire, all of us at Aracoma have pulled together in a unified effort to improve safety," the statement said. "I am very proud of the members of Aracoma and their focus on safety."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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