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Utah plea deal brings call for tougher mine safety sanctions

CHARLESTON, W.Va. -- Federal prosecutors on Friday announced a misdemeanor plea deal in the 2007 deaths of nine workers at a Utah coal mine, prompting renewed calls for tougher sanctions in mine safety cases and bringing praise for the approach U.S. Attorney Booth Goodwin has taken to date in his criminal probe of the Upper Big Branch Mine Disaster.

Genwal Resources Inc. agreed to plead guilty to two mine safety crimes for violations federal investigators had earlier cited as contributing factors in the disaster at its Crandall Canyon Mine nearly five years ago.

Under the deal, Genwal Resources will pay the maximum fine of $250,000 for each of the two criminal counts outlined in a charging document filed late Friday afternoon in U.S. District Court in Salt Lake City.

No charges will be brought against any Genwal mine managers or any executives from the parent company, Murray Energy.

The settlement drew harsh criticism from the United Mine Workers union, members of Congress and independent safety advocates.

It highlighted what mine safety reformers say is a major flaw in federal law: Criminal violations of safety and health standards are misdemeanors that carry less jail time. And, safety advocates said, the case emphasized the importance for prosecutors to look beyond mine safety laws to other criminal offenses such as conspiracy as they try to build a case to hold corporate officials responsible for mining deaths.

"If this is the best they could do under current law, then something is drastically wrong with the current law," said UMW spokesman Phil Smith. "If it's not, then something is drastically wrong with the prosecutor's office in Utah."

At a press conference held shortly after the plea deal was filed, David Barlow, the U.S. Attorney for Utah, defended his office's handling of the case, citing the "heavy burden of proof that we must carry in court."

"These were the two criminal charges that were appropriate," Barlow said. "These were the two criminal charges we could prove beyond a shadow of a doubt."

At Crandall Canyon, six miners died in a catastrophic implosion of the underground mine's walls on Aug. 6, 2007. Ten days later, while rescuers searched for any survivors, the walls blew in again, killing three more men.

The disaster and the frantic rescue attempt, coming the year after the Sago Mine Disaster in West Virginia, was followed on national television broadcasts that featured Murray Energy CEO Bob Murray, a controversial coal operator who - like Massey Energy's Don Blankenship - revels in boisterous verbal assaults on government regulators, labor unions, environmental groups and the media.

In a press release, Genwal Resources said the plea agreement "reflects the lack of evidence" that any conduct by the company caused the August 2007 disaster.

But the two criminal counts to which Genwal agreed to plead guilty actually were among the contributing violations that drew the company and one of its consultants $1.8 million in fines from the U.S. Mine Safety and Health Administration.

In one count, Genwal Resources will plead guilty to failing to report an earlier mine "bump" in March 2007. In the other, the company will plead guilty to violating its MSHA-approved roof control plan by mining blocks of coal that were supposed to be left to provide ground support. Both actions by Genwal were cited as contributory violations in an MSHA report released in July 2008.

But under the Federal Mine Safety and Health Act of 1977, criminal violations of established safety standards - violating a roof control plan or not reporting an accident, for example - are misdemeanors. The law does contain some felony provisions, for lying on required safety reports to MSHA. For individuals, the misdemeanors carry maximum jail time of one year. Felony convictions carry up to five years in prison.

Longtime mine safety advocate Davitt McAteer, who ran MSHA during the Clinton administration, said the law needs to change.

"The day should be changing in this country where we have the attitude that killing coal miners is a misdemeanor," McAteer said Friday evening.

He praised the efforts of Goodwin and his team of prosecutors, who have begun to use laws against misleading federal investigators and conspiring to evade government regulations in their ongoing probe of the April 5, 2010, explosion that killed 29 miners at Massey's Upper Big Branch Mine in Raleigh County.

"The Mine Act has limitations and unless those limitations are changed, it really depends on the creativity of the U.S. Attorney to find other ways to address mine disasters," McAteer said.

So far, in two felony convictions, Goodwin's office has secured jail time for a former Upper Big Branch miner who admitted he lied about having a foreman's license and the mine's security director, who was convicted of lying to investigators and trying to destroy evidence.

Goodwin also recently landed a plea agreement with one of Upper Big Branch's mine superintendents, who was charged with the felony of conspiring to evade mine safety standards and cover up the resulting hazards.

Also, Goodwin's office worked out a $209 million settlement with Alpha Natural Resources, which bought Massey in June 2011, agreeing not to bring criminal charges against the company, but reserving his office's ability to prosecute individual mine managers and corporate executives.

"The Mine Act provisions make it a challenge to prosecute mine safety crimes," Goodwin said in an interview Friday. "At Upper Big Branch, it was clear from the beginning that we needed to look beyond the Mine Act."

California Rep. George Miller, the ranking Democrat on the House Committee on Education and the Workforce, had urged federal prosecutors to bring conspiracy charges against Crandall Canyon officials in a formal June 2008 referral letter.

In the House, Miller is sponsoring legislation to make criminal violation of mine safety standards a felony, punishable by up to five years in prison and a $1 million fine. His legislation, the Robert C. Byrd Mine Safety Protection Act, also broadens the ability of prosecutors to bring charges against corporate officials who affect -- directly or indirectly -- safety conditions in a mine.

"Many expected more from this four-year investigation, including me, and with the U.S. Attorney's findings, we must move forward with legislative changes" Miller said. "The health and safety of America's miners must not be held up by predictable partisan battles. Miners and their families shouldn't have to wait for another tragedy to occur. It's well past time we get back to work." 

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


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