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McCloy, two families sue

Sago Mine survivor Randal McCloy Jr. filed the first in a series of lawsuits Wednesday that allege poor safety practices by mine owner International Coal Group caused the January disaster at the Upshur County mine.

Lawsuits were also filed Wednesday by the families of James Bennett and Marty Bennett, two of the 12 miners who died in the disaster.

All three suits focus on safety violations by ICG, but also allege wrongdoing by several mine contractors and supply companies.

More specifically, the suits target a long list of problems with foam block seals that did not — as required by federal law — contain a methane explosion inside a closed area of the Upshur County mine.

“On January 2nd of this year, our lives were changed forever,” the family of James Bennett said in a prepared statement.

“We lost our father, grandfather, husband, Jim Bennett,” the family said. “He was our rock. We miss him every moment of every day.

“We know that this will be an uphill fight — but if holding those responsible in a court of law will keep this from happening to another family, it will be well worth the fight.”

In their suits, the Bennett families also fault ICG for not immediately correcting false reports that all 12 trapped miners had been found alive. Those reports were not corrected for nearly three hours.

“The intolerable and outrageous conduct of Defendant ICG was such that it was substantially certain that emotional distress would result from its conduct, was beyond all possible bounds of decency, and said emotional distress was beyond that which any reasonable person should be expected to endure,” the suits state.

In addition to both compensatory and punitive monetary damages, the Bennett families also ask for a court order that ICG implement safety improvements recommended in a report by Davitt McAteer, Gov. Joe Manchin’s special adviser on mine safety.

“The Bennett family gave us clear direction in this case,” said Charleston lawyer Tim Bailey, who represents James Bennett’s family. “It is not about money, because no amount of money could adequately compensate them for their loss.

“It is about putting miner safety ahead of the bottom line,” the statement from James Bennett’s family said. “It is about making sure that another senseless tragedy like Sago never happens again.”

The McCloy suit was filed on behalf of Randal and his wife, Anna, and children Randal III and Isabel by Charleston lawyer Stephen Goodwin.

Judy Bennett, the widow of Marty Bennett, is represented by lawyers Dean Hartley of Wheeling, Bill Harvit of Charleston and Brad Oldaker of Weston.

The family of James Bennett, including his widow, Lilly, and his children John Bennett and Cheryl Meredith, is represented by Bailey and Buckhannon lawyer Burton Hunter.

James Bennett and Marty Bennett were not related.

The defendants named in all three cases are ICG, its Morgantown-based subsidiary Wolf Run Mining Co., Burrell Mining Products Inc. of New Kensington, Pa., Raleigh Mine and Industrial Supply of Mount Hope, and GMS Mine Repair and Maintenance of Oakland, Md.

The suits were all filed Wednesday afternoon in Kanawha Circuit Court in Charleston. Lawyers said they filed the suits here because ICG President Ben Hatfield lives here.

Most of the other Sago victims’ families have retained lawyers, but have not yet filed civil lawsuits.

In a prepared statement, ICG general counsel Roger Nicholson said the company would contest the lawsuits.

“We believe that the various company, state and federal investigations will confirm that the company was not at fault and that, indeed, the company’s actions, like substantial rockdusting in the mine, actually saved lives,” Nicholson said. “The outcome of the Sago mine explosion was indeed tragic; however, that tragic outcome does not translate into negligence on the part of the company.”

At about 6:30 a.m. on Jan. 2, an explosion ripped through the Sago Mine south of Buckhannon. One miner, fireboss Terry Helms, was killed by the explosion itself.

Surrounded by smoke and toxic fumes, 12 other miners took shelter behind a makeshift barricade. Eleven of them — including James and Marty Bennett — succumbed to carbon monoxide poisoning before rescuers reached them 41 hours later. Only McCloy survived.

It was the worst coal-mining disaster in West Virginia in nearly 40 years.

Both Bennett suits state that ICG was formed by New York venture capitalist Wilbur Ross.

“Despite no previous experience in the coal industry, Wilbur Ross and other investors formed ICG in an attempt to take advantage of the rising price of coal in recent years,” the suits state. The suits say that ICG “negligently failed to put in place any standardized operating and safety policies and procedures” and “failed to monitor” subsidiary Wolf Run Mining’s compliance with standard safety rules, the suits say.

McCloy’s suit noted that the U.S. Mine Safety and Health Administration cited the Sago Mine more than 200 times in 2005 for various safety violations, including 96 that federal inspectors deemed “significant and substantial.” The mine’s accident rate in 2005 was roughly three times the national average, the suit noted.

Among other things, the suits state, mine management did not insure proper installation of equipment meant to prevent a lightning strike — the likely ignition source at Sago — from triggering an underground explosion.

The suits allege the problems that led to the disaster started with Burrell Mining Products, which manufactured the foam “Omega” blocks used for the Sago seals, and with Raleigh Mine and Industrial Supply, which sold the blocks to the Sago Mine.

According to the suits, Omega blocks were subjected to explosive tests that demonstrated only that they were able to survive a sideways, glancing blow — not a full-force, head-on explosion like the one that occurred at Sago.

Essentially, the suits say, this means Omega blocks were tested for use as mine “stoppings,” or as block walls placed in crosscuts to direct ventilation air along the main mine tunnels.

Omega blocks were never tested for use as mine seals — which must be much stronger than stoppings — but were marketed and sold by Burrell and Raleigh Mine and Supply for that purpose anyway, the suits say.

Further, the suits allege, ICG and its contractor, GMS Mine Repair, did not build the seals to conform with government-approved plans, manufacturer specifications, and safe mining practices.

And once the seals were built, the suits say, ICG and Wolf Run did not properly monitor the buildup of methane behind and around the blocks.

“Regardless of the ignition source, the explosion ... was possible only because the seal in that area did not in fact ‘seal’ that area and a deadly combustible mixture of oxygen and methane was present,” the suits say.

“This deadly mixture of methane gas and oxygen pre-existed the lightning strike of January 2, 2006, at or about 6:26 a.m.,” the suits say. “This deadly mixture of methane gas and oxygen was the direct result of the illegal and unsafe mining practices of the defendant Wolf Run.”

As for CSE Corp., the lawsuits allege the company provided miners with faulty emergency breathing devices that did not work after the explosion.

Staff writer Ken Ward Jr.’s continuing coverage of the Sago Mine disaster is being supported by a fellowship from the Alicia Patterson Foundation. To contact Ward, use e-mail or call 348-1702.


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