Coal Tattoo

UBB settlement: Who will pay for 29 lives?

It’s raining this morning here in Charleston. The fog was hanging over the Kanawha River on my drive in. Like always, there was a Friend of Coal ad on the local radio station. But over at the Robert C. Byrd United States Courthouse, the lights were already burning.

In a few hours, U.S. Attorney Booth Goodwin will announce details of a landmark settlement in the Upper Big Branch Mine Disaster, a deal that calls for Alpha Natural Resources — which bought UBB mine owner Massey Energy in June — to spend $200 million on major safety initiatives, civil penalties related to the mine disaster and other former Massey mines, and restitution to the families of the 29 miners who died and the two miners who were hurt in the April 2010 explosion.

UPDATED: Here’s a link to our news story with details of the settlement, and you can read the agreement for yourself here.

We first reported the broad scope of the settlement last night, based on information provided by sources who have been briefed on the government’s deal.  More media stories have followed from the Wall Street Journal and from our friend Howard Berkes at NPR, whose story early this morning indicated some displeasure with the deal from the families and their lawyers:

“It’s so wrong,” says Judy Jones Petersen, a Charleston physician whose brother Dean Jones died in the explosion. Petersen is upset by what she sees as a release of some criminal liability for the deaths of 29 men in exchange for a $200 million payment. “It’s so absolutely wrong on the very deepest level of what is moral and right.”

Attorneys Rachel and Mark Moreland, who represent two families of Upper Big Branch victims, also reacted with anger.

“$200 million for the lives of 29 men certainly doesn’t bring justice to the families of those dead miners,” says Mark Moreland.

The families and everyone else will be better able to judge the Justice Department’s deal later today, when more details are provided to families during a conference call at 9:30 a.m. and to the rest of us at an 11 a.m. press conference.

This much we do know: This settlement is unprecedented. Nearly two-thirds of the settlement money is dedicated to mine safety improvements and to advancing the cause of mine safety research. Some of the improvements would implement recommendations made by the independent Upper Big Branch investigation team, led by longtime safety advocate Davitt McAteer.

And as for the question I heard most often from sources and observers last night and this morning, I’m told the settlement most absolutely does not give a pass to any employees, officers, board members, executives — you name it — of the former Massey Energy who are found to have committed crimes related to the disaster, mine safety problems at Upper Big Branch, or impeding the government’s investigation of the explosion.

Keep in mind how different this is from the deal Massey Energy got from prosecutors following the deaths of two miners at its Aracoma Alma No. 1 Mine in Logan County in January 2006.  Under a plea agreement with Massey’s Aracoma Coal Co., then-U.S. Attorney Charles Miller agreed never to prosecute any officers or employees of the Massey parent company for any actions related to the fatal fire. Interestingly, Miller’s office also signed documents in which they said the government just didn’t have any evidence against anyone from Massey, despite possessing a memo that raised questions about what Massey CEO Don Blankenship knew about the condition of conveyor belts at Aracoma prior to the belt fire that killed miners Don Bragg and Ellery Hatfield.

This time, there’s no promise not to go after individuals who committed mine safety crimes, and no statement from the government that they don’t have any evidence of such crimes — and the U.S. Attorney’s criminal probe will continue after today’s deal.

Over the weekend, we published a story outlining questions about what Massey’s board knew about conditions at Upper Big Branch, about what the board was being told, and what — if any — actions were taken as a result of safety problems pointed out by a former MSHA inspector Massey hired to audit the operation before the disaster.  When I asked U.S. Attorney Booth Goodwin last week about these issues, and about whether his investigation would end with the release today of the MSHA report on the disaster, he told me:

Any information of that nature that would come to light would be of interest to us. We’re not limiting the focus of our investigation at all. We are not slowing down at all. If anything, certain aspects of our investigation are going into high gear.

Alpha to pay $200 million in Upper Big Branch deal

Various media outlets are posting late-breaking stories about tomorrow’s release of the U.S. Mine Safety and Health Administration’s report on the Upper Big Branch Mine Disaster.

Kris Maher at The Wall Street Journal is reporting that MSHA is expected to levy a record safety fine, and Ellen Smith from Mine Safety and Health news is reporting that the government has reached some sort of a global settlement with Alpha Natural Resources. Not surprisingly, Ellen is right, and we’ve got some of the details posted in this exclusive Gazette story:

Alpha Natural Resources will spend $200 million on fines, victim restitution and mine safety improvements to resolve enforcement actions and some criminal matters arising from the Upper Big Branch Mine Disaster, the Gazette has learned.

Federal prosecutors are set to announce the deal this morning, just hours before the U.S. Mine Safety and Health Administration is to brief families on the agency’s long-awaited report on the April 2010 explosion, according to sources who have been briefed on the settlement.

The groundbreaking, “global settlement,” covers civil penalties and some limited criminal liability assumed by Alpha when it bought Massey Energy in June, according to the sources, who spoke on condition of anonymity because the deal hadn’t been officially announced.


Under the settlement, civil penalties for the Upper Big Branch Mine operators, Performance Coal Co., would be resolved. So would potential criminal liability for the company.

But unlike a previous government deal with Massey, the deal does not resolve any potential criminal violations by any officers or agents of Performance Coal or Massey, sources said.

When then-U.S. Attorney Charles Miller in December 2008 settled civil and criminal matters concerning the January 2006 Aracoma Mine fire, the deal included an unusual promise not to prosecute any officers or employees of the Massey parent company.


U.S. Attorney Booth Goodwin has scheduled a press conference for 11 a.m. to announce the deal and provide more details.

More major news coming tomorrow regarding the Upper Big Branch Mine Disaster:

U.S. Attorney Booth Goodwin confirms that his office has scheduled a conference call with family lawyers and family members to discuss what has been described as an “important development” in his office’s broad-ranging criminal investigation of the events that led to the April 5, 2010, explosion that killed 29 miners. The conference call is set to start just hours before the federal Mine Safety and Health Administration plans to release the report of its investigation of the disaster.

Not surprisingly, Goodwin declined to identify the development or provide additional specifics, saying:

I’m not going to discuss that until I have an opportunity to tell the families.

Stay tuned …

Alpha hit with another ‘imminent danger’ order

Here’s the latest from an Alpha Natural Resources SEC filing:

On November 28, 2011, White Buck Coal Company (“White Buck”), a subsidiary of Alpha Natural Resources, Inc. (“Alpha”), received an imminent danger order under section 107(a) of the Mine Act alleging that a miner was observed at the Grassy Creek No. 1 Mine cleaning water sprays on a continuous mining machine prior to its power source being locked and tagged out. The circuit breaker that opens all power conductors entering the continuous mining machine had been opened prior to commencement of the work.

White Buck believes that the miner’s actions were in compliance with MSHA’s Program Policy Letter No. P11-V-01, which became effective February 8, 2011 and states that certain maintenance work, such as “changing water sprays,” can be performed on a continuous mining machine “with the circuit breaker opened that opens all power conductors entering the machine.” The Grassy Creek No. 1 Mine has received no prior citations or orders alleging similar violations during the past twelve months. No injuries occurred as a result of the cited practice, and White Buck retrained all miners working at the Grassy Creek No. 1 Mine on the procedure for locking and tagging out the power source prior to performing maintenance work on electric powered equipment. The order was terminated on November 28, 2011.

Here’s the latest from The Associated Press, based on yesterday’s U.S. Mine Safety and Health Administration press release:

The head of the federal Mine Safety and Health Administration said Thursday he’s adopting a new conferencing system that was piloted with mine operators earlier this year in an ongoing attempt to reduce the backlog of contested violations.

Director Joe Main had said in October that both sides liked the pilot program, but he was still evaluating whether it would continue.

On Thursday, he said it will.

Starting in January, operators will be able to request a conference regarding a contested citation or order, but only after MSHA proposes a penalty assessment.

Main said the new system will help reduce the backlog by resolving disputes before they end up in litigation. It may also help improve overall communication among operators, miners and MSHA.

Continue reading…

State to complete UBB report before end of January

Given the scheduled release next week of the U.S. Mine Safety and Health Administration’s report on the Upper Big Branch Mine Disaster, I wondered what was going on with the state Office of Miners’ Health, Safety and Training’s investigation of the April 2010 disaster.

I checked in with office spokeswoman Leslie Fitzwater, and this is what she told me:

The Office of Miners’ Health, Safety and Training plans to have its UBB report completed by the end of January 2012.


I’ve changed the headline on this story to correct my misunderstanding of the agency’s plans … here’s an updated note I received from Leslie Fitzwater —

You did quote me correctly; however, the headline stating the report will be issued before the end of January is misleading.  We plan to complete the report by that date, but we will not decide until that date when to issue it.