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Longtime Massey official cooperating as Upper Big Branch probe widens

Read the charges. CHARLESTON, W.Va. -- A longtime Massey Energy executive has agreed to cooperate with investigators as they continue to try to work their way up the corporate ladder in their probe of the worst U.S. coal-mining disaster in nearly 40 years, federal prosecutors revealed Wednesday.

Former Massey official David C. Hughart will plead guilty to two criminal charges and provide testimony about a decade-long conspiracy to defy safety laws and hide the resulting conditions from government inspectors.

U.S. Attorney Booth Goodwin said that Hughart plotted with other company officials to routinely violate ventilation and dust-control standards at Massey mines and to cover up those infractions.

In an interview, Goodwin called the plea agreement with Hughart "a significant step" in an ongoing investigation that began with the deaths of 29 miners at Massey's Upper Big Branch Mine and has expanded into a broader examination of the former coal giant's safety practices.

"We are digging deeper and moving forward," Goodwin said.

The charges against Hughart target alleged crimes that occurred between 2000 and 2010 at Massey's White Buck operations in Nicholas County, where two mid-level foremen and a Massey operating subsidiary were prosecuted five years ago for criminal safety violations.

But in new court documents, Goodwin and Assistant U.S. Attorney Steve Ruby allege a broader conspiracy by as-yet unnamed "directors, officers, and agents" of Massey operating companies to put coal production ahead of worker safety and health at "other coal mines owned by Massey."

It is the first time in their Upper Big Branch probe that prosecutors have alleged Massey officials engaged in a scheme that went beyond the Raleigh County mine that exploded on April 5, 2010.

"The meticulous manner in which the U.S. Attorney's office has investigated and brought criminal charges against Massey lower level and now higher ranking mine managers suggests a classic prosecutor's technique of reaching top corporate officials," said West Virginia University law professor Pat McGinley, who served on longtime mine safety advocate Davitt McAteer's independent Upper Big Branch investigation team.

"From what we learned about Massey's management in the Upper Big Branch investigation and from these prosecutions, I expect that those who ran Massey's mining operations are retaining criminal defense counsel right now," McGinley said. "If they aren't, they should be."

Prosecutors identified Hughart as having served as president of Massey's Green Valley "resource group," one of about two dozen such divisions Massey operated in three states. Green Valley included three mines and was among the smaller of Massey's resource groups.

But beyond his role at Green Valley, Hughart worked for Massey for more than 20 years, serving as an officer or a director at more than two-dozen subsidiaries.

"It's fair to say he was a very high-level executive with Massey," Goodwin said during an appearance on the MetroNews statewide radio show "Talkline." "He was a significant player."

Samantha Davison, a spokeswoman for Alpha Natural Resources, said that Hughart was fired by Massey in March 2010 and never worked for Alpha, which bought Massey in June 2011.

Hughart's attorney, Tim Carrico of Charleston, could not be immediately reached for comment. A home telephone listing for Hughart had been disconnected.

In filings today in U.S. District Court in Beckley, Hughart was charged with one felony count of conspiracy to defraud the federal government by trying to thwart government oversight of mining by warning underground workers of impending inspections. This so-called "advance notice" of inspections has become a key part of the Upper Big Branch criminal probe and was a focus of the U.S. Mine Safety and Health Administration's disaster investigation.

Hughart, 53, of Crab Orchard, was also charged with one misdemeanor count of conspiracy to violate federal mine safety and health standards. If convicted of both counts, Hughart could face up to six years in federal prison.

The charges against Hughart were outlined in a court filing known as an information, rather than through a grand jury indictment. Such a move is a method prosecutors use when they've reached a plea agreement with the accused.

Prosecutors allege that mine safety and health laws were routinely violated at the White Buck mines and at other coal mines owned by Massey, in part because of "a belief that consistently following those laws would decrease coal production."

Among the safety standards violated, prosecutors said, were those governing mine ventilation and control of explosive coal dust.

Investigators have said those standards were repeatedly ignored at Upper Big Branch, setting the stage there for a small methane ignition to turn into a huge, coal dust-fueled explosion.

"You were loading the gun against your miners and you were doing that with the sole purpose of getting a high level of coal production at the expense of worker safety," said McAteer, who ran MSHA during the Clinton administration.

Prosecutors did not provide details of specific actions by Hughart, but said his alleged crimes occurred between 2000 and March 2010, while Hughart was helping to manage Massey's White Buck, Green Valley and Hominy Creek operations near Leivasy.

During the George W. Bush administration, federal authorities spent nearly five years investigating safety violations at Massey subsidiary White Buck's Grassy Creek No. 1 Mine. They found that mine officials were not conducting pre-shift safety examinations, but were filling out paperwork as if they had done so.

One of two White Buck employees who pleaded guilty said at the time that higher-up company managers told him to conduct mine examinations that way, and investigators said other workers said the behavior was "common knowledge".

Massey disputed that version of events, and the federal charges stopped with the White Buck subsidiary. As part of a plea deal, then-U.S. Attorney Charles Miller signed off on an agreed statement of facts that said the corporate parent company had no knowledge of the White Buck criminal violations.

During the White Buck case, Hughart at one point delivered a personal message from then-Massey CEO Don Blankenship, asking White Buck foreman Eddie Wine -- who had agreed to testify against the company -- to drop his personal lawyer, Randolph McGraw, and allow a company attorney to represent him, according to court testimony.

During a federal court hearing in December 2006, Wine testified that Hughart and another Massey official approached him while he was working for the company's Mammoth Coal operation.

"[They] told me that they -- that Mr. B., Mr. B they referred to as Mr. Blankenship, had received a bill from Mr. McGraw in the amount of $25,000 for my case, and he wanted me to drop Mr. McGraw and go back to the company attorney, Mr. Allen," Wine testified, according to a transcript of the hearing. "He thought they [prosecutors] were just bluffing on it, it would be no big deal, and that they could help me if I went back to the company."

Also at Mammoth Coal, Hughart's actions were cited by the National Labor Relations Board when it ruled that Massey violated labor law by refusing to rehire United Mine Workers members for their old posts at the former Cannelton Coal mines.

According to the NLRB, Hughart did the interviewing when some former UMW workers came to apply for jobs. When Hughart refused to hire one of the union's longtime members, he made his reasons clear: "Poor attitude. Made comments on trying to organize a union if hired," Hughart said, in comments cited by the NLRB.

Internal Massey documents, made public as part of lawsuits against the company, show that Hughart was fired on March 19, 2010.

Hughart had failed a random drug test and "seemed to be having financial difficulty," according to the documents, which were unsealed by a court action brought by The Charleston Gazette and NPR News. Massey auditors alleged that Hughart hired his son, promoted him to an $89,000-a-year job, and gave him a company truck to drive. The audit report, filed in Kanawha Circuit Court, also alleged that Hughart received $150,000 in kickbacks between May 2008 and March 2010, by having a Massey contract firm fake invoices for work that was never performed.

Goodwin said his office was aware of those allegations, and would not rely on Hughart or any other single witness, but seek other evidence to back up such testimony.

Prior to Hughart, Goodwin's office had brought charges against three people in its investigation of Upper Big Branch and Massey safety practices.

Thomas Harrah, a former miner at Upper Big Branch, was sentenced to 10 months in jail after he admitted to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009 and then lying to investigators about his actions.

Former Massey Energy security director Hughie Elbert Stover is appealing a three-year jail sentence he received after being convicted of lying to investigators and trying to destroy evidence about Massey's practice of warning underground workers of impending government inspections.

And former Upper Big Branch mine superintendent Gary May is awaiting sentencing after pleading guilty to plotting "with others known and unknown" to put coal production ahead of worker safety and to conceal the resulting hazards on numerous occasions at Upper Big Branch. May admitted that he took part in a scheme to provide advance warning of government inspections and then hide or correct violations before federal agents could make it into working sections of the mine.

Goodwin reached a deal not to prosecute Alpha for any Upper Big Branch criminal liabilities, but required the firm to spend $80 million during the next two years on mine safety improvements and create a $48 million mine safety research trust fund. Alpha also agreed to pay $46.5 million in restitution to families of the disaster victims and $35 million to resolve pending Massey safety fines, including $10.8 million levied for violations related to the Upper Big Branch explosion.

That settlement did not prohibit prosecutors from pursuing charges against any individuals -- including Massey officers, employees or agents -- who played a role in the mine disaster.

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


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