In the wake of Martin County, the administration of West Virginia Gov. Bob Wise in August 2001 launched a crackdown on Massey, following a long series of blackwater spills along the Coal River in Boone and Raleigh counties. The state Department of Environmental Protection dug out a tool it seldom used: the ability to suspend or revoke mining permits, and block companies with repeated violations from obtaining new permits to mine coal anywhere in the country.
Leading the charge were DEP Secretary Mike Callaghan, a former federal prosecutor, and Callaghan's mining office director, a former U.S. Department of Justice lawyer named Matt Crum. Massey challenged Crum's authority to preside over enforcement hearings, though, and the cases quickly ground to a halt.
While the state cases languished, federal prosecutors went after two Massey subsidiaries for some of the same violations. Independence Coal and Omar Mining pleaded guilty to criminal violations of the federal Clean Water Act and agreed to pay the maximum fines of $200,000. Violations by both companies continued.
State officials, meanwhile, never permit blocked Massey. Instead, the DEP agreed in January 2006 to settle the cases -- along with hundreds of Massey violations dating back years -- for $1.4 million. By then, a new DEP secretary, Stephanie Timmermeyer, had forced Crum out of the agency's mining office.
Pat Parenteau, who teaches environmental law at Vermont Law School, said Massey's history is a symptom of larger problems with the way the nation's pollution laws are written.
First, big corporations create dozens of subsidiary companies to help shield the parent from liability. Also, Parenteau said, "Although environmental laws impose strict liability, significant penalties and stiff criminal sanctions, they are only as good as the agencies that are charged with enforcing them.
"As we've seen with MSHA, and to a lesser degree with [the] EPA, the problem of 'agency capture' by the regulated industry is a deeply engrained cultural phenomenon in the U.S.," Parenteau said. "And when the agency does flex its muscles -- as [the] EPA has been doing with mountaintop mining and coal-ash regulation -- the members of the Congress who owe their seats to industry move quickly to punish the agency by starving it through the budget process and bullying the administrator in oversight hearings."
'Where they had been was not a good place'
Davitt McAteer's phone rang shortly after 4:30 p.m. on April 5, 2010. A reporter was on the line, asking if he'd heard reports about a terrible accident at Upper Big Branch.
"They were asking for as many ambulances as possible," McAteer recalled. Initial numbers of those who were dead or missing shocked McAteer, but he says now that the name of the company involved was no surprise.
"If you look to understand where someone has been, it sometimes tells you where they might be headed," McAteer said last month, "and with Massey, where they had been was not a good place."
McAteer had faced off with Massey before, when he was assistant secretary of labor in charge of MSHA for President Clinton in the 1990s.
After leaving that job, McAteer studied West Virginia mine safety problems for then-Gov. Wise.
In a major report issued in 2001, McAteer singled out the safety records of independent-contract companies Massey hired to do work at its operations. McAteer alleged that Massey used contractors to make its corporate safety record look better. Five years later, Gov. Joe Manchin brought McAteer in to perform an independent investigation of the Aracoma fire.
For years, McAteer watched criminal prosecutions in mine safety cases work out about like the one in 2007 at Massey's White Buck Coal Co. subsidiary.
Federal agents spent nearly five years investigating White Buck's Grassy Creek No. 1 Mine in Nicholas County. They found that mine officials were not conducting pre-shift safety examinations, but were filling out paperwork as if they had done so.
During one hearing in federal court, White Buck foreman William Edwin Wine testified that company managers told him to falsify the pre-shift examination records.
"I was told to do it this way by my supervisors, by my bosses," Wine said.
Massey disputed Wine's story, and the federal charges stopped at Wine, another low-level foreman and the White Buck subsidiary.
McAteer said the nation's mine safety laws put the responsibility for compliance -- and potential criminal liability -- mostly on mid- and low-level mine foremen. When the laws were written, he said, those foremen had a much greater say over how coal mines operate. Today, he said, decisions about spending time and money on safety comes from higher up in parent corporations.
"The structure has changed, and we haven't changed the law," McAteer said. "It's terribly important for management to be made part of the enforcement process."
Shortly after the Upper Big Branch Mine blew up, McAteer recommended a series of changes to West Virginia law to help hold corporate officials more accountable. Manchin, now the junior U.S. senator from West Virginia, declined to push the proposals before leaving the Governor's Mansion for Congress. His acting successor, state Senate President Earl Ray Tomblin, has shown no interest in McAteer's recommendations.
In Congress, Rep. George Miller, D-Calif., has pushed to amend federal mine safety law to make it easer for prosecutors to target corporate officials who knowingly allow criminal safety violations. The House, in early December, voted down Miller's efforts to advance the legislation.
Among those who spoke against the bill was Rep. Shelley Moore Capito, R-W.Va.
"It imposes vague new standards for criminal liability, potentially criminalizing most infractions and subjecting officials to sanctions over which they have no direct control," Capito said.
On Dec. 3, 2010, just after the close of business, Massey Energy announced that Blankenship was retiring as the company's CEO. Under his deal with Massey, Blankenship is expected to receive $12 million in cash by July.
The next evening, Charles R. Qualls, 32, was driving his coal truck down a steep haul road at Massey's Republic Energy Surface Mine along the Kanawha-Fayette County line. Qualls lost control of the truck, the truck overturned, and Qualls was killed. Investigators found the brakes on the truck weren't working properly.
The day of Qualls' wake, Blankenship's attorney submitted a letter to state investigators, invoking his Fifth Amendment right to not answer questions in the Upper Big Branch investigation.
Seven weeks later, Alpha Natural Resources announced that it was buying Massey Energy. The deal is expected to close by midyear.
So far, federal prosecutors have charged two people in the Upper Big Branch inquiry. They allege that one of Massey's security directors lied to investigators and tried to destroy documents regarding the warning of miners that inspectors were on the way. They charged a former Upper Big Branch miner -- who left the operation eight months before the explosion -- with lying about whether he had a foreman's license.
Asked after a court hearing in the security director's case if more charges would be coming, U.S. Attorney Booth Goodwin told reporters to "stay tuned."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.