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4 from Aracoma mine get probation

CHARLESTON, W.Va. -- As investigations of Massey Energy's Upper Big Branch Mine disaster continue, federal authorities have wrapped up their criminal inquiry of a 2006 fire that killed two Massey workers - and the widows of those two men continue to question why the prosecution didn't go higher up the corporate ladder.

On Thursday, U.S. District Judge John T. Copenhaver held a hearing in Charleston to sentence four foremen from Massey's Aracoma Alma No. 1 Mine in Logan County. The four admitted to not conducting required mine-evacuation drills prior to the January 2006 fire that killed miners Don Bragg and Ellery Hatfield.

Copenhaver sentenced Donald R. Hagy, Terry L. Shadd, Edward R. Ellis and Michael A. Plumley each to a year's probation and to a total for the four of $7,000 in fines.

Defense lawyers told Copenhaver their clients were good workers and solid family men who were sorry for their crimes and wanted another chance.

"He understood he was doing something he shouldn't have and he has accepted responsibility," said lawyer Stephen New, who represented Ellis, a former high school classmate from Mingo County.

Family members of the foremen filled one side of the courtroom, and Copenhaver said he had received letters from their friends, neighbors and pastors speaking up for their character.

On the other side of the courtroom, widow Delorice Bragg sat with her attorneys, Bruce Stanley and Tonya Hatfield. Stanley, a lawyer for Bragg and for widow Freda Hatfield, told Copenhaver his clients were not looking for the judge to be overly harsh in sentencing the foremen.

"The true culpability in this matter rests in a higher position of authority than the four gentlemen in this courtroom," Stanley said.

In early 2009, Bragg and Hatfield spoke out against a deal in which Massey's Aracoma Coal Co. subsidiary pleaded guilty to 10 mine safety crimes and paid a $2.5 million fine, while prosecutors agreed they would not pursue any charges against the Massey parent company or any of its officers or employees.

During the Jan. 19, 2006, fire, a crew of miners ran into thick, black smoke in their primary escape 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 succumbed to the smoke.

MSHA 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 dust and grease to build up on the belt.

The criminal charges against Aracoma, though, focused on violations that hampered miners trying to evacuate the mine after the fire had started, and charges against five foremen dealt with escape drills in the months prior to the fatal blaze.

Prior to Thursday's hearing, Aracoma foreman David R. Runyon pleaded guilty to not conducting required evacuation drills and was fined $1,000. Along with probation, Hagy, Ellis and Plumley were each fined $2,000. Shadd was fined $1,000.

All five foremen reached plea deals in which they admitted to misdemeanor charges, but at least three of them -- Ellis, Hagy and Plumley -- admitted during the plea hearings that they also falsified mine safety records, which is a felony under federal mine safety law.

Still, prosecutors, defense lawyers and Copenhaver emphasized at the July plea hearing and again at Thursday's sentencing that the foremen's actions had not been shown to have a "causal connection" to the fatal fire in 2006.

Stanley, the widows' lawyer, noted in brief comments to Copenhaver that the U.S. House of Representatives had on Wednesday refused to pass legislation that would expand the ability to hold corporate officers and board members responsible for mine safety crimes.

The Obama administration's labor secretary, Hilda Solis, said in a statement that she was "deeply disappointed" that the House didn't pass the Robert C. Byrd Mine Safety Protection Act of 2010.

"The measure would compel the worst of the worst in the mining industry to change how they treat their miners," Solis said.

U.S. Attorney Booth Goodwin said his office is continuing its investigation of the April 5 explosion that killed 29 workers at Massey's Upper Big Branch Mine, and would take the inquiry wherever the evidence points.

"We're going to take any investigation as far as it will lead us," Goodwin said. "Sometimes, the frustration is that the criminal statutes are geared toward the people at the middle and lower levels.

"But if you have pervasive conditions, you have to think that there is something in that corporate culture, and we'll take any investigation as far as it leads."

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


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