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Upper Big Branch deal aimed at preventing future disasters

The Associated Press
Southern West Virginia U.S. District Attorney R. Booth Goodwin II speaks to reporters Tuesday.

CHARLESTON, W.Va. -- More than 20 years ago, the old U.S. Bureau of Mines began promoting a new optical meter that could tell immediately if coal operators had not spread enough crushed limestone through underground tunnels to prevent a disastrous coal-dust explosion.

The coal industry has never deployed these devices, and the U.S. Mine Safety and Health Administration has never tried to require them.

But within two years, Alpha Natural Resources officials will have installed these "coal dust explosibility meters" at every single one of their 104 underground mines across the nation's coalfields.

Alpha, the nation's third-largest coal producer, will also add state-of-the-art ventilation monitors to measure fresh-air velocity, direction and methane content to all of its underground mines.

All these moves are part of $80 million in safety improvements Alpha has agreed to make in a $209.5 million Upper Big Branch Mine Disaster settlement to resolve potential corporate criminal charges Alpha inherited when it bought Massey Energy six months ago.

U.S. Attorney Booth Goodwin crafted the deal in an effort to push Alpha -- and the rest of the coal industry -- toward reforms aimed at avoiding a repeat of the April 5, 2010, explosion that killed 29 miners in the worst U.S. coal-mining disaster in a generation.

The key, according to Goodwin and his team, is the $80 million in safety improvements are specifically designed to address root causes of the Upper Big Branch explosion, such as poor ventilation practices and most specifically doing a better job cleaning up highly explosive coal dust that can turn a minor methane ignition into a horrific blast like the one at UBB.

"This started out by looking at what we could require them to do to do these things better," said Assistant U.S. Attorney Steve Ruby, a lead prosecutor in Goodwin's ongoing criminal probe of Upper Big Branch and the key architect of the Alpha settlement.

Goodwin announced the move last Tuesday morning, upstaging the release several hours later of the U.S. Mine Safety and Health Administration's report of its investigation into the causes of Upper Big Branch.

Under the settlement, Bristol, Va.-based Alpha must perform a study to determine if its mines have adequate staffing to clean up accumulations of explosive coal dust, accelerate research on new ways to control dust accumulations, and install new emergency oxygen equipment for miners. Alpha will build a state-of-the art training center at its regional office in Julian and set up an aggressive new schedule of worker and supervisor training programs.

The deal also includes $46.5 million in restitution to miners' families and a provision for Alpha to pay $35 million in pending safety fines from former Massey operations, including $10.8 million for new violations related to the explosion investigation.

"There should never be another UBB," Goodwin said. "For far too long, we've accepted the idea that catastrophic accidents are an inherent risk of being a coal miner. It's long past time we put that myth to rest. We believe that this agreement does that."

Families of the miners who died at Upper Big Branch, though, have not welcomed the settlement. They want more criminal prosecutions, to put top Massey officials -- especially former CEO Don Blankenship -- in jail.

So far, Goodwin's sprawling, 20-month probe has brought charges and secured convictions of two individuals at Upper Big Branch: a former Massey miner who admitted that for two years he faked his credentials to perform required mine safety examinations and the mine's long-time security director, who was convicted of lying about the company's policy of warning underground workers of impending government inspections.

As details of last week's settlement emerged, some of the biggest critics of Massey and of Blankenship welcomed language in Goodwin's deal that, unlike a promise not to prosecute reached after the 2006 Aracoma Mine fire, allows future criminal charges against any individual officers, executive or employees found to have committed crimes at Upper Big Branch.

"Sadly, aggressive prosecution against upper management in the Aracoma case might have spared us the horror of UBB," said Bruce Stanley, a lawyer for the families of miners Don Bragg and Ellery Hatfield, who died at Aracoma. "We'll never know, of course. But we certainly hope that the lesson of making deals with the devil has been learned, that the criminal investigation makes its way into the boardroom as well as the guard shack, and that Alpha chooses a different path than its predecessor."

In its report last week, the MSHA investigation team outlined what it called "reckless disregard" and "unwarrantable failure" by Massey to comply with some of the most basic mine safety requirements for proper ventilation, control of explosive coal dust, and failure to find and correct hazards before miners go to work. MSHA also outlined what it said were concerted efforts by Massey to cover up those violations, by warning workers prior to inspections, lying on safety reports the government reviews, and making workers so afraid for their jobs they won't report safety concerns to the company or regulators.

Many of the civil citations MSHA issued to Massey and its Performance Coal Co. subsidiary might have easily drawn criminal charges. But Goodwin's office worked out a "non-prosecution agreement" with the corporate entities, rather than bringing charges or trying to force Alpha to enter into a formal plea agreement.

David Uhlmann, a former federal prosecutor who teaches at the University of Michigan Law School, said Goodwin was too quick to give Alpha a deal that included no corporate criminal charges.

Uhlmann, an expert in criminal enforcement of environmental and worker safety laws, said Goodwin worked out an "impressive settlement" in terms of civil penalties, restitution to victims and the steps Alpha will take to enhance safety. But he said the case was more than an appropriate one in which to bring criminal charges against the company.

"The bottom line is that the law authorizes those charges and, if the law is not going to be used in a case that is this egregious, when is it going to be used?" Uhlmann said in an email interview. "If you cannot bring a criminal case against the companies involved when there are years of violations and numerous deaths, when will criminal charges be brought?"

Other critics of the Alpha deal, like Rachel Moreland, a lawyer for several miners' families, complained that the company was getting credit for safety improvements it would eventually have to make anyway.

But longtime mine safety advocate Davitt McAteer, whose independent team's recommendations formed the basis for many of the safety reforms in the Alpha settlement, disagrees. McAteer, a former MSHA chief, said it takes agency officials years to implement new safety requirements, especially in the face of industry opposition and cries of over-regulation by coal's friends in Congress.

Joe Main, a former longtime United Mine Workers safety director who now runs MSHA, admitted as much during the press conference where his agency released its Upper Big Branch report.

"It's pretty clear to everyone that the U.S. Attorney can move more swiftly than we can," Main said.

At that same press conference, chief Labor Department lawyer Patricia Smith tried to argue that many of the changes Alpha has promised to implement would need an act of Congress for MSHA to require, but Main appeared to agree MSHA could -- and should -- take action itself through rulemaking proposals. "These are issues that one would believe we will be focusing attention on going forward," Main said.

It is far from certain that the mining industry will be moving quickly to adopt Alpha's reforms on its own. Carol Raulston, a spokeswoman for the National Mining Association, said last week, "Many of NMA's members, including Alpha, are already investing in safety efforts and equipment not specified, required by MSHA.

"We have not read the agreement between Alpha and the U.S. Attorney, so I cannot comment on any specific provision including the equipment stipulations," Raulston said. "As such, I am reluctant to speculate about future actions of NMA members at this time."

Other critics have argued that the total cost of the settlement -- $209.5 million -- isn't really that much money to a major coal producer.

For Alpha, the settlement amounts to about three quarters' worth of earnings, based on last quarter's results as reported to the U.S. Securities and Exchange Commission. But it's also 50 times what Massey paid to resolve civil violations and criminal charges related to the Aracoma fire.

The Upper Big Branch settlement is hardly the first time that federal prosecutors or regulators tried to figure out a way to clean up environmental and workplace violations at Massey Energy operations.

In the years before Upper Big Branch, at least four Massey subsidiaries pleaded guilty in criminal cases that called for improved operations. And the U.S. Environmental Protection Agency worked out a $20 million deal agency officials touted as the end of Massey's Clean Water Act violations, only to have citizen groups find continued problems that prompted another lawsuit.

Goodwin told reporters last week that he never would have agreed to the Alpha settlement if he were not "absolutely convinced that Alpha is committed to safety and to following the law."

But in the last year, Goodwin's office has prosecuted an Alpha miner who faked foreman's credentials for more than a year and an Alpha contractor who admitted lying to investigators about training practices at the company.

And Goodwin was very clear last week in stating that he would not make public periodic reports Alpha is required to file with his office outlining its progress in meeting the terms of the settlement.

Still, some mine safety advocates aren't jumping to join the Upper Big Branch families in criticizing the Alpha settlement. In holding their tongues, those safety advocates are putting a lot of faith in Goodwin, saying they believe his office is committed to bringing more charges in the disaster.

Pat McGinley, a West Virginia University law professor who served on McAteer's Upper Big Branch investigation team, said he's "confident" that Goodwin's investigators "will continue to pursue every lead" and "bring to justice any and all Massey corporate managers who they find have engaged in criminal conduct leading to the horrendous deaths of 29 UBB miners.

"Coal company managers and executives whose willful conduct causes the death of even one coal miner need to be held criminally accountable and if criminal prosecution and jail time becomes a real possibility for those corporate officials who place profits above miners' lives, I can guarantee that the nation's coal mines will quickly become significantly safer."

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


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