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Three more suits filed against Massey in Upper Big Branch Mine disaster

CHARLESTON, W.Va. -- As the one-year anniversary of the Upper Big Branch Mine Disaster approaches, three more lawsuits were filed Monday against Massey Energy over the April 2010 explosion that killed 29 miners.

Suits were filed on behalf of the families of Joe Marcum and Adam Morgan, miners who died in the disaster. A third case was filed on behalf of Stanley Stewart, a miner who narrowly escaped being killed.

The suits were filed against Massey and against subsidiaries Massey Coal Services and Performance Coal Co.

Charleston lawyer Tim Bailey, who filed the three suits, alleged that Massey operated the Upper Big Branch mine in a "willful, wanton and recklessly unsafe manner," citing a "staggering number of safety violations" cited by government inspectors.

"Prior to April 5, 2010, the Upper Big Branch Mine had an abysmal safety record," Bailey said in one of the new suits. "The Upper Big Branch Mine was a catastrophe waiting to happen."

The new suits were filed in Boone Circuit Court, and note that the underground mine was producing coal from both Boone and Raleigh counties.

Among other things, the new suits cite preliminary findings of the U.S. Mine Safety and Health Administration that the Upper Big Branch Mine was not properly treated with crushed limestone or "rock dust" to control the buildup of explosive coal dust. The suits also note preliminary findings that water spray nozzles on the mine's longwall machine were not operating properly to prevent sparks and reduce coal dust.

Massey has said it believes MSHA's rock-dusting data is inaccurate and argued that the water spray problems had little if anything to do with the fatal explosion.

The suits do not name former Massey CEO Don Blankenship as a defendant, but allege that Blankenship had personal knowledge that the mine was being operated in an unsafe fashion. The suits also do not name individual members of Massey's board of directors, but allege that those board members "undertook duties and responsibilities" for mine safety under the settlement of a previous shareholder lawsuit.

At least two other lawsuits are pending against Massey by the families of William Griffith and Ronald Lee Maynor, who died in the explosion. West Virginia law generally requires such suits to be filed within two years.

Massey reported last week that it has reached settlements with seven families of disaster victims, and that a judge has approved four of those settlements. Those settlements were all reached before the actual filing of a lawsuit.

Details of the settlements have not been made public, but Massey has said it offered families $3 million to settle any claims against the company.

The new suits allege that Massey had encountered roof control and flooding problems in part of the mine where officials hoped to be moving the longwall machine when it completed work on the panel of coal currently being mined. As a result, the company had to begin work on a new set of tunnels for the next longwall location.

"The longwall panel being mined on or about April 5, 2010, was nearing completion and the next full panel was well short of readiness for production as desired," one of the lawsuits alleged. "As a result, production and development pressures were placed on the mine managers at the mine and on the miners themselves."

"As a result of the production demands, the non-production work such as rock dusting, replacing and repairing the woeful condition of the longwall units' water sprays and bits was not performed even though mine safety laws require such work to be conducted upon discovery of the conditions," one of the suits said.

The new suits also accuse Massey of damaging potential evidence, noting the indictment of Performance Coal's security director, Hughie Elbert Stover, on charges that he tried to destroy evidence to hinder the government's disaster investigation.

The suits also note that company officials Chris Blanchard and Jason Whitehead were underground for an extended period of time after the explosion, but before official rescue teams arrived.

"Blanchard and Whitehead traveled to such deep areas of the mine that they were at or in close proximity to the longwall section which has now been designated by both the regulatory agencies and defendants as the ignition site and where vast amounts of critical evidence were located," one of the suits states.

The suits also allege that Blanchard and Whitehead had "first-hand knowledge that the explosion had killed all of the miners underground" but did not "fully inform the appropriate regulatory agency representatives, nor did they inform the families as they kept vigil on the mine site.

"Instead, the families and indeed the nation were allowed to sit through several days of vigil without being given information known to the defendants related to the fate of their loved ones," the lawsuit alleges.

Massey officials have praised Blanchard and Whitehead, saying they risked their lives going underground to find any survivors and did not disturb any evidence while they were in the mine.

Shane Harvey, Massey's general counsel, previously noted that Blanchard and Whitehead helped rescue two survivors, James Woods and Timothy Blake, from the mine. "Their efforts were heroic," Harvey said.

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


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