CHARLESTON, W.Va. -- On Jan. 14, 2009, officials from Aracoma Coal Co. pleaded guilty to 10 mine safety crimes. Prosecutors uncovered the violations during their investigation of a January 2006 fire at Aracoma's Alma No. 1 Mine in Logan County.
Delorice Bragg and Freda Hatfield were in court that day, too. Their husbands, Don and Elvis, died in the fire. The widows came to speak out against the government's promise not to bring any future charges against Aracoma's parent company, Massey Energy.
It wasn't the first time government officials went after Massey but settled for a deal with one of the Richmond, Va.-based coal giant's subsidiaries or a low-level company staffer.
Despite years of environmental problems and dozens of mining deaths, Massey and its corporate officials -- including now-retired CEO Don Blankenship -- have mostly escaped any serious, direct punishment.
At Aracoma, prosecutors said they just didn't have a case against Massey or any of its officers, executives or agents. Bragg and Hatfield weren't so sure.
"If Massey executives have done nothing wrong and bear no criminal responsibility for the fire that killed Don and Elvis, why do they need this deal?" Bragg said at the time. "If they're innocent, they don't."
U.S. District Judge John T. Copenhaver heard the widows out. The deal sounded a little unusual, the judge said, but he didn't want to second-guess prosecutors.
Aracoma Coal Co. paid a $2.5 million criminal fine and $1.7 million in civil penalties, the largest combined payment ever in a coal-mining death case. Five of the subsidiary's mid- and low-level foreman later pleaded guilty to misdemeanor charges. No one went to jail.
Massey Energy says its corporate policy puts safety first. Blankenship repeatedly said his company never put profits or coal production ahead of people.
However, long before 29 miners died in an explosion a year ago Tuesday at Raleigh County's Upper Big Branch Mine, Massey had its share of run-ins with the law. Inspectors doled out thousands of citations, and agencies levied millions in fines. Widows and injured miners sued. Citizens filed pollution complaints. In the past decade alone, at least four Massey subsidiaries have pleaded guilty to workplace safety or environmental crimes.
Still, regulators have almost always cited one of Massey's maze of operating subsidiaries or independent contractors. Prosecutors squeezed section foremen or fire bosses into guilty pleas. Even personal injury lawyers who represented the families of miners killed at Massey operations generally ended up in court against a subsidiary several layers from Massey, or against one of the firm's insurance carriers.
"Enforcement doesn't reach into the boardroom," said Davitt McAteer, a longtime mine safety advocate who ran the U.S. Mine Safety and Health Administration during the Clinton administration and is conducting an independent investigation of the Upper Big Branch disaster.
As Massey grew over the past two decades into the region's biggest and most powerful coal producer, government officials had plenty of chances to rein in the company. Between 2000 and 2009, no other coal company was responsible for more mining deaths than Massey, according to an analysis by the Investigative Reporting Workshop at American University.
However, even the largest-ever penalties in mine safety and environmental cases involving coal operators were not enough to stop unsafe work practices and allegations of illegal pollution.
In January 2008, Massey agreed to pay a $20 million fine to resolve water pollution violations. It was the biggest deal ever between a coal company and the U.S. Environmental Protection Agency. EPA officials said the settlement tied Massey to new pollution-control plans and improved internal audits that would change the way the company did business.
Two years later, the Sierra Club and other environmental groups filed suit against Massey, alleging the company's water pollution violations actually had gotten worse since the EPA settlement.
When the government settled its case over the Aracoma fire, then-MSHA chief Richard Stickler said the outcome "should be a reminder to all mine operators of their legal duty to provide their workers with safe and healthful working environments."
A year later, the Upper Big Branch Mine blew up.
"Corporate executives and board members have the power to make compliance with the law a company priority," said Pat McGinley, a West Virginia University law professor who is part of McAteer's team. "If rogue corporate officials were forced to spend even a few weeks in jail for condoning serious continued violations of safety or environmental laws, compliance would become a personal priority."
'. . . You're going to have a problem'
Just beyond a sharp bend in the Big Coal River, in the town of Sylvester, Massey Energy in 1980 built one of the key parts of its growing Southern West Virginia empire: a huge coal processing and shipping facility run by Massey's Elk Run Coal Co. subsidiary. Residents worried from the start that the sprawling industrial site would be nothing but trouble.
"Common sense will tell you that, if you put a preparation plant as close to a town as Elk Run put theirs to Sylvester, you're going to have a problem," said Ralph Anderson, a former mayor who worked for years at coal preparation plants.
Still, the people of Sylvester lived with Massey until the late 1990s, when the company expanded the operation. Massey removed a finger ridge that had extended from south to north across the valley, between the mining complex and the town. The company used the material it excavated to create a large, flat area for coal stockpiling and loading.
That's when, according to residents, dust from Elk Run literally took over their town. State inspectors repeatedly cited Elk Run, and demanded various plans for fixing the problems, but the dust continued.
In February 2001, 150 residents sued Massey. When they got their day in court, then-Boone Circuit Judge E. Lee Schlaegel wouldn't let the jury hear about the dozens of violations and thousands in fines state inspectors had issued to the company. Jurors came back with a verdict against Massey. The company should clean up the dust, jurors said, but without the long record of violations to show Massey put off fixing the problem, jurors declined to punish the company with any punitive damages.
'The agencies let it happen'
On Oct. 11, 2000, Coldwater Fork and Wolf Creek in Martin County, Ky., flowed black.
The floor collapsed from under the Big Branch impoundment, operated by Massey subsidiary Martin County Coal. More than 300 million gallons of slurry poured out of the impoundment, into the adjacent underground mine and then out into nearby creeks, the Tug Fork of the Big Sandy, along the West Virginia-Kentucky border, and eventually, to the Ohio River.
Near the spill site, lawns were buried in up to 7 feet of sludge. Downstream, more than 75 miles of creeks and rivers were damaged. Prior to last year's BP oil blowout in the Gulf of Mexico, it was considered the largest environmental disaster ever in the Southeast United States.
MSHA investigator Jack Spadaro found that the Massey impoundment had problems before the break, and that MSHA had not followed its own expert's advice about repairs the company needed to make.
When the Bush administration took office in 2001, Spadaro says, it moved to stop any review of those issues. Spadaro resigned from the investigation team and, eventually, left the agency.
"Massey simply ignored the hazard to the public," Spadaro recalled last month. "The company did that, and the agencies let it happen."
Later, lawsuits were settled. A criminal inquiry ended with no charges being filed. Most of the cleanup costs were covered by Massey's insurance policies. The company told stockholders the slurry disaster didn't have a "material effect" on Massey's finances.