The Two-Way
8:43 am
Fri October 28, 2011

West Virginia Prosecutor Defends Long Mine Disaster Investigation

Ken Ward of the Charleston Gazette has a story this morning featuring a rare interview with the U.S. Attorney for West Virginia, who says prosecutors are exploring more serious charges against senior Massey Energy officials in last year's deadly explosion at the company's Upper Big Branch mine.

U.S. Attorney Booth Goodwin told Ward his prosecutors are considering unprecedented approaches, including conspiracy charges against company officials for violating mine safety law.

"It hasn't been in the playbook," Goodwin told the Gazette. "But we're not operating under the prior playbook."

The April, 2010, explosion killed 29 mine workers. It was the worst mine disaster in the U.S. in the last 40 years.

High-level mining company officials are rarely charged as individuals in mine disasters. As Ward points out, only foremen were charged after a 2006 fire killed two miners at Massey's Aracoma mine in West Virginia. They pleaded guilty to misdemeanors and served no jail time. The company itself was charged criminally as a corporate entity and paid a $2.5 million fine. But no senior managers or executives were prosecuted.

Federal prosecutors in Utah have yet to file any charges in the 2007 Crandall Canyon mine disaster in which nine miners and rescuers died, despite strong indications from congressional investigators that criminal charges were warranted.

So far, Goodwin's Upper Big Branch probe has resulted in a conviction for a former mine security chief and a guilty plea from a foreman. Neither was charged with crimes directly related to the explosion.

This week, a West Virginia jury found 60-year-old Hughie Stover guilty of lying to investigators and attempting to dispose of evidence. Goodwin told Ward that he had higher hopes for the Stover prosecution because Stover provided personal security for former Massey CEO Don Blankenship and other company officials.

"What we wanted, bottom line from him, was cooperation, and he provided the exact opposite," Goodwin told the Gazette.

Stover argued at his trial that he was a victim of a zealous prosecution desperate to show progress after an 18-month-long investigation.

"You wanted justice, and this is who they brought you," said defense attorney William Wilmoth. "We're no closer to finding the real villain or villains in that disaster."

Goodwin defended the pace and progress of the probe in his Gazette interview.

"We're taking small chunks," Goodwin said. "If you bite off an enormous deal like what caused the explosion, that's just mind-boggling what it would require, if it's even possible."

In fact, three civil investigations of the disaster have done exactly that and each concluded that Massey Energy put production over safety at the mine. A federal Mine Safety and Health Administration (MSHA) preliminary report contains volumes of documents showing micro-management of the mine by Blankenship and a practice of keeping two sets of books. One detailed safety issues for mine managers. The other hid those issues from MSHA inspectors.

An independent investigative team called Massey Energy a "rogue operation" with a deviant safety culture.

The most recent report was released this week by the United Mine Workers union and it urged criminal prosecution of Massey executives. The report carried the title "Industrial Homicide."

As Ward notes, knowingly and willfully violating mine safety standards is only a misdemeanor. Falsifying mine safety reports is a felony with up to five years in prison.

Goodwin also revealed that he has five prosecutors working on the case. The statute of limitations gives them five years to file charges.

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