The Aracoma Mine Fire, Jan. 19, 2006

January 19, 2012 by Ken Ward Jr.

My thoughts today are with the families of Don Bragg and Elvis Hatfield, the two coal miners who died six years ago in that terrible fire at Massey Energy’s Aracoma Alma No. 1 Mine in Logan County, W.Va.

As I wrote a year ago on this date, readers will recall that Massey Energy’s Aracoma Coal Co. pleaded guilty to criminal mine safety violations that led to their deaths, and paid a record $2.5 million in criminal fines and $1.7 million in civil penalties. Five Massey foreman also pleaded guilty to criminal charges, but none of them went to jail.

But the U.S. Department of Justice and then-U.S. Attorney Chuck Miller agreed to a plea deal with Aracoma Coal in which the government agreed not to prosecute any employees or officers of the corporate parent, Massey Energy. This deal drew much criticism from the widows of Mr. Bragg and Mr. Hatfield.

Prosecutors said they had no evidence of any criminal wrongdoing by Massey or its officers or employees, but lawyers for the families wondered about a key memo that indicated then-Massey CEO Don Blankenship knew about the poor condition of the conveyor belts at Aracoma and knew mine officials were not accurately reporting those conditions on mine safety reports.

In last year’s anniversary post, I questioned whether the criminal investigation of the deaths of 29 more Massey miners at the company’s Upper Big Branch Mine would end any differently:

What will come of this new criminal investigation? Will prosecutors bring charges against a few mid-level foremen, or will they find and try to punish wrongdoing by anyone further up the corporate ladder?

Over the last few months, we’ve seen a flurry of action on Upper Big Branch.  In late October, the mine’s longtime security director, Hughie Elbert Stover, was convicted of two felonies, with a jury finding that he lied to investigators and tried to destroy evidence about Massey’s habit of warning underground workers of impending safety inspections — a practice that federal inspectors say played a major role in the April 5, 2010, disaster.  Stover faces up to 25 years in prison. Already, a former Massey miner had pleaded guilty to faking foreman’s credentials while he spent almost two years performing safety inspections for the company at Upper Big Branch. While there’s no direct evidence the actions of Thomas Harrah played any role in the disaster, U.S. District Judge Irene Berger sentenced Harrah to 10 months in prison.

Then in December, as the U.S. Mine Safety and Health Administration was preparing to issue the report of its investigation into Upper Big Branch, U.S. Attorney Booth Goodwin announced that his office had reached a landmark deal with Alpha Natural Resources, which bought Massey last June. Alpha would agree to spend tens of millions of dollars on mine safety improvements, and Goodwin would agree not to bring any criminal charges against the company.

And just last week, the remaining families of the Upper Big Branch miners settled their wrongful death cases, agreeing to a deal through with Alpha will pay them undisclosed amounts of money to resolve those cases and allow the company to, essentially, turn the page on the disaster it inherited from Massey CEO Don Blankenship.

The families have made it clear that they want justice — not just money. As one of the family lawyers, Tim Bailey, told me:

Compensation is one thing, but justice is another. Based on what happened at this mine, there is not going to be justice until some people are indicted and some people go to jail.

Will more people go to jail? Well, we know that the Alpha-Justice Department deal does not include language to protect any individual officers, agents or employees of Massey from prosecution … and U.S. Attorney Goodwin has said his office has uncovered other crimes for which the appropriate individuals have not yet been charged.  The question is — will Goodwin and his staff find a way to bring charges against these individuals and to make those charges stick? A more cynical person that I might also ask if higher-ranking officials at the Justice Department, with Goodwin’s Alpha deal already in their pockets, think it’s time to move on and pressure Goodwin to just drop it?

West Virginia political leaders certainly don’t have the stomach for much more talk about 29 coal miners getting blow up … Every chance they get, our local elected officials encourage us all to forget about the bad old days of Massey, and focus on the new leadership at Alpha (the “new ownership in Southern West Virginia“, as my friend Rep. Nick Rahall likes to say), forgetting about Alpha’s willingness to keep some top Massey managers on board — and about the fact that Alpha CEO Kevin Crutchfield can’t seem to bring himself to say publicly that UBB could have easily have been prevented and wasn’t any sort of Act of God. It takes a congressman from California — ranking Democrat on the Labor Committee, George Miller — to bother to ask Crutchfield about any of this.

Before anyone in the federal government decides they should just drop this criminal probe, I wonder if it might be worth them being put into a room for a while with the widows of Don Bragg and Elvis Hatfield or at least read what their lawyer, Bruce Stanley, told me last month:

Sadly, aggressive prosecution against upper management in the Aracoma case might have spared us the horror of UBB. 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.


6 Responses to “The Aracoma Mine Fire, Jan. 19, 2006”

  1. Vernon says:

    I’m continually baffled by the fact that criminal prosecution and jail time of executives (those who make the decisions and give the orders) seems like some sort of taboo, but sending an anti-mountaintop removal activist to jail for 2 months for sitting in a road is okay. Just baffled.

  2. Pragmatic Realist says:

    Beginning with the pardon of Richard Nixon it has been the policy that certain classes of people do not go to jail and that they are given an exemption from being held responsible for their crimes. It is only those who look like the victims of this crime, like Mr Bragg and Mr Hatfield will go to jail. Those who look like Mr Goodwin will not. If you don’t believe me, go and spend a day in any courthouse in America and you will see who it is that is walking around in chains and who in suits.

  3. old one says:

    If these things were independly investigated the company and msha officals would be placed under the jail house. If you stop to think at some point these violations were observed and msha did little or nothing to correct the conditions. This is just my thinking only. post if you want to.

  4. BOUTTIME says:

    Ken, are employees of State agencies such as WVDEP or WVDOH immune from any civil/criminal prosecution when they knowingly & willingly fail to use presented evidence in decision making regarding various permit application approvals, that consequently result in harm to the public.

  5. Ken Ward Jr. says:

    BOUTTIME,

    I’m not burdened with having attended law school, though I sometimes play lawyer on this blog (with help from my many sources who are lawyers).

    I am not aware of any provision that gives state or federal employees immunity from criminal prosecution for any criminal acts — But I’m also not aware of a specific criminal statute that makes it a crime to knowingly and willingly fail to use presented evidence in decision-making regarding various permit application approvals that consequently result in harm to the public. I’m not sure where in the other criminal statutes that sort of thing might — or might not — fall.

    Certainly, if anyone from a government agency misled investigators looking into a mine disaster, that could be prosecuted under the same statutes that Mr. Stover was prosecuted.

    Don’t know if that helps or not, but it’s what I got.

    Ken.

  6. BOUTTIME says:

    Ken

    Your info is definitely helpful & goes along with other info I have obtained.
    Pretty much leaves the door open, so far, to giving some line of legal recourse to the public — we shall see.

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