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Judge approves Aracoma plea deal in fatal fire

Read more in Coal Tattoo.

CHARLESTON, W.Va. -- A federal judge on Wednesday approved a deal in which a Massey Energy subsidiary pleaded guilty to pay a $2.5 million fine for 10 mine safety crimes related to the January 2006 fire that killed coal miners Don Bragg and Ellery Hatfield.

U.S. District Judge John T. Copenhaver Jr. accepted the agreement after reading off a list of Aracoma Coal Co. violations the judge said "doomed two workers to a tragic death."

"The combination of those failings is simply inexcusable, and shows a lack of concern at the time for the safety and welfare of the miners," Copenhaver told Aracoma lawyers and officials.

Copenhaver approved the plea agreement, worked out privately between prosecutors and Massey lawyers, over the objections of the Bragg and Hatfield widows, who were upset that the charges didn't move farther up the Massey corporate ladder.

"These women are tired widows, and Aracoma made them that way," said Bruce Stanley, a lawyer for the families.

Also Wednesday, Copenhaver did not -- as he had threatened to during a plea hearing in January -- make public the details of a wrongful death settlement between Aracoma Coal and the Bragg and Hatfield estates. Massey lawyers, the families and prosecutors opposed releasing the settlement details.

The plea bargain is part of a sweeping deal with prosecutors and the U.S. Mine Safety and Health Administration to resolve criminal and civil violations related to the fatal fire. Along with the criminal fines, Aracoma agreed to pay $1.7 million to resolve more than 1,300 civil violations cited by MSHA inspectors after the fire.

The total settlement of $4.2 million is believed to be the largest combined government penalty ever in a coal-mining death case, officials said.

On Jan. 19, 2006, a fire broke out in the belt take-up storage unit for the Aracoma mine's longwall conveyor belt. A crew of workers, including Bragg and Hatfield, ran into thick, black smoke in their escape tunnel and had to find another way out. Ten men from the crew escaped. Bragg and Hatfield somehow became separated from the group, got lost and eventually succumbed to the smoke.

MSHA investigators had 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 coal dust and grease to build up on the belt.

But the charges that Aracoma pleaded guilty to focused on violations that hampered miners trying to evacuate the mine after the fire had started.

The central misdemeanor charge alleged Aracoma failed to provide a required primary escapeway that was clearly marked, and isolated from fire sources such as conveyor belts. That charge stemmed from Aracoma's removal of at least two ventilation walls, called stoppings, creating holes that allowed smoke into the tunnel meant to be the miners' main evacuation tunnel.

In their charging documents, prosecutors said that this violation "resulted in the deaths" of Bragg and Hatfield.

Aracoma also agreed to plead guilty to not promptly evacuating its mine once the fire broke out, and to not training a mine dispatcher charged with organizing the evacuation.

The deal also included guilty pleas to six counts of not conducting two different kinds of mine evacuation drills during the three months prior to the fire. And, the one felony count included in the deal was for falsifying a Jan. 7 entry in the mines record books to make it appear that two different escape drills had taken place when they really hadn't.

During Wednesday's sentencing hearing, Stanley urged Copenhaver to look into the windows' belief -- based on an MSHA internal review -- that Massey officials may have pressured MSHA inspectors to go easy on the Aracoma operation.

Aracoma lawyer Robert Luskin said there's no evidence to support such allegations.

"That's speculation," Luskin said. "Nothing in that report would suggest that."

And Hunter Smith, an assistant U.S. Attorney, told Copenhaver the government wasn't giving up prosecution of any provable cases against Massey or company executives.

"The condition [at the mine] was serious, but in the opinion of investigators and my office, contained within [Aracoma Coal Co.] and this mine," Smith said. "Whether it was affected by outside influences or policies is arguable, but it will never rise to the level of knowing and willful violations."

Copenhaver called the agreement not to prosecute Massey or its executives "unusual," and cited the concerns raised by Stanley and the two widows. But the judge said he would not second-guess prosecutors.

"The government informs the court it lacks a case, and the court accepts the government at its word," Copenhaver said.

Copenhaver did sentence Aracoma Coal to three years of probation, overruling the company's request for just one year of probation. Copenhaver also ordered Aracoma to continue safety improvement programs at the Alma No. 1 Mine, and required mine officials to notify the probation department -- and Massey CEO Don Blankenship personally -- if any of those programs were ended.

At a news conference after the hearing, U.S. Attorney Charles Miller said mine safety laws do not always allow prosecution based on lapses in "moral responsibility" uncovered during investigations.

"We may believe that Massey Energy may have established production goals that may have forced the operation at Aracoma to cut corners. [But] that's not a criminal violation."

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


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