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Families settle all wrongful death claims from Upper Big Branch disaster

CHARLESTON, W.Va. -- Alpha Natural Resources on Tuesday finalized a deal that resolves the last of the wrongful death claims of the families of the 29 miners who died in the Upper Big Branch Mine Disaster, lawyers for the families confirmed.

The final 13 families accepted settlements offered by Alpha after a conference call that followed more than four days of talks led by a high-profile mediator in closed-door meetings at the Glade Springs Resort in Daniels.

Alpha had already worked out deals with 16 other families of miners killed in the April 5, 2010, explosion. Alpha acquired liability for the worst U.S. mining disaster in nearly 40 years when it purchased Massey Energy last June.

"On behalf of the families we were privileged to represent, we're happy we could provide some measure of closure on this particular part of this tragedy," said Charleston lawyer Tim Bailey, who represented two miners' families and helped lead a group of lawyers with the bulk of the cases.

But Bailey and other lawyers for the Upper Big Branch families emphasized that what their clients really want is for the top Massey managers responsible for safety conditions at the mine to be prosecuted.

"Compensation is one thing, but justice is another," Bailey said. "Based on what happened at this mine, there is not going to be justice until some people are indicted and some people go to jail."

Details of the settlements, especially the amounts to be paid, were not disclosed and were subject to standard confidentiality agreements.

West Virginia law requires wrongful death settlements to be approved by a circuit judge, and in cases where minor children are beneficiaries, separate legal counsel for the children must also review the deals.

Most observers believe the settlements easily exceeded the $3 million per family that former mine owner Massey Energy began offering in the weeks after the fatal explosion.

West Virginia law sets a tough standard for successfully suing employers over workplace deaths. Families of workers killed on the job must prove "deliberate intention" of their employer to evade safety standards in a manner they know is likely to cause significant injury or death.

But a trial in the Upper Big Branch disaster -- which government investigators have blamed on Massey's culture of deliberately evading safety standards -- could have carried serious risks of punitive damages. And a settlement helps Alpha in its continuing efforts to put behind it Massey's history of environmental and workplace disasters.

"We've accomplished what we set out to accomplish," said attorney Rachel Moreland, who represented two of the families. "This is a milestone for our clients. They have the benefit of closure in the civil context. We are hopeful that the United States Attorney will vigorously move forward toward final justice."

Alpha officials had no immediate comment on word that the settlements were reached and had earlier in the day Tuesday declined to discuss the mediation "out of respect for the privacy of these discussions with the families."

Boone Circuit Judge William S. Thompson had sent the cases to mediation led by Michael Rozen, who is partners with high-profile mediator Kenneth Feinberg, who handled the Sept. 11 Victim Compensation Fund and the BP Oil Spill Fund.

At least eight of the families of miners who died had settled with Massey prior to the Alpha buyout, according to Massey's last quarterly financial statement filed with the U.S. Securities and Exchange Commission. Another three families had settled with Alpha by the time the company reached its $209.5 million deal with U.S. Attorney Booth Goodwin to avoid any criminal prosecution of the company. Goodwin has said his criminal investigation is continuing to focus on individuals who may have committed crimes that played a role in the disaster.

So far, Goodwin's office has chalked up two convictions in its sprawling investigation of Upper Big Branch and of Massey's safety practices.

A former Upper Big Branch miner, Thomas Harrah, was sentenced to 10 months in jail after he pleaded guilty to faking a foreman's license while performing mine safety examinations at the mine.

Longtime mine security chief Hughie Elbert Stover is awaiting sentencing after being convinced of lying to investigators and trying to destroy evidence regarding a Massey policy to warn underground workings of impending government inspections. In its report on the disaster, the U.S. Mine Safety and Health Administration said that Massey policy allowed the company to conceal some serious safety problems at Upper Big Branch, and contributed to the disaster.

After a 20-month probe, MSHA's investigation team found that the disaster was caused by the company's "unwarrantable failure" to follow federal rules governing mine ventilation, roof control, and the cleanup of highly explosive coal dust.

Other contributory citations alleged a "reckless disregard" for requirements to perform periodic safety examinations and fix the problems identified and a routine effort to intimidate miners so they wouldn't complain about hazardous conditions.

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


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