West Virginia Open to Homicide Prosecution for Massey Coal Mine Deaths

For years, the state of West Virginia was proud to say that it was "open
for business."

In
a twist, now it might be open for a homicide prosecution in connection with
the deaths of 29 miners at the Massey Energy mine in Raleigh County, West Virginia
earlier this month.

"If
there is evidence to support a homicide prosecution, I would not hesitate to
prosecute," Kristen Keller, the prosecuting attorney for Raleigh County
told Corporate Crime Reporter last week.

Keller
says she has been in touch with the West Virginia State Police on the matter.

And
she says that any federal regulatory investigation would not preclude a state
homicide investigation.

"A
federal regulatory investigation does not satisfy the need for a state criminal
investigation," Keller said. "If there were a car accident where
one or ten or 29 people were killed - a federal investigation would not
preclude a state criminal investigation. In fact, there would be a state criminal
investigation."

Twenty-nine
miners died at Massey's Upper Big Branch mine in Raleigh County as the
result of an explosion on April 5.

Since
then, there have been calls for both federal and state criminal prosecution.

Bob
Franken, wrote
an article last week for The Hill titled "Murder in the Coal
Fields?"

"Plain and simply, the police and prosecutors need to pursue this case,"
Franken wrote. "And if those who run Massey can be shown to be culpable
beyond a reasonable doubt, they need to be thrown into prison. The sentence
for involuntary manslaughter, as just one possible charge, in West Virginia,
is a year in prison. For each case."

West
Virginia has an involuntary manslaughter statute.

Here's
the state's definition: "Involuntary manslaughter involves the accidental
causing of death of another person, although unintended, which death is the
proximate result of negligence so gross, wanton and culpable as to show a reckless
disregard for human life."

Under
West Virginia law, reckless disregard is something more than ordinary or simple
negligence.

It
is negligence that consciously ignores the safety of others.

And
so the question is - do Massey's actions at the Upper Big Branch
mine meet the standard for reckless disregard?

The
Charleston Gazette's Ken Ward Jr. reported
last week that three months before last week's deadly explosion, "Massey
Energy managers at the Upper Big Branch Mine told workers 'not to worry'
that the flow of air in the mine - meant to control deadly gases and coal
dust - was headed in the wrong direction."

The
comment was made in January, when state and federal inspectors were battling
Massey over what Mine Safety and Health Administration (MSHA) and the state
Office of Miners' Health, Safety and Training said were major ventilation problems.

"When
questioned, Terry Moore, mine foreman, said he knew of [the] condition and that
he asked Everett Hager, superintendent, about it and he was told not to worry
about it," the MSHA inspector, whose name was not released, wrote in his
official notebook, the Gazette reported.

"When
mine ventilation moves in the wrong direction, that's a big deal,"
Dan Heyman, a stringer for the New York Times based in Charleston told
Corporate Crime Reporter last week. "The inspector was complaining
to the foreman that the ventilation was moving in the wrong direction and it
was not being fixed."

"The
foreman at the company went to the mine supervisor and was told not to worry
about it," Heyman said. "That's really a smoking gun."

"Inspectors
have told me that it's a constant tug of war trying to get Massey to obey
the rules," Heyman said.

Over
the past two decades, there have been a
number of criminal manslaughter prosecutions around the country for worker
deaths

In
the 1980s, every time a worker died on the job in Los Angeles County, the district
attorney would send out a team to investigate the case for a possible manslaughter
investigation.

And
many successful homicide prosecutions were brought against companies and executives
as a result.

We
asked Heyman what impact he thought the 29 coal miner deaths have on public
opinion in West Virginia.

"I've
been surprised as to how these things will settle back down," Heyman said.
"I thought the coal industry was in terrible trouble after the Sago mine
accident that took 12 lives. And for a time, it was. But eventually, it begins
to try to exercise the influence that it always had in the state."

"This
feels a bit different this time. At least in the worlds of journalism and politics
that I follow - inside the equivalent of the West Virginia beltway -
I sense a willingness to get tough. I don't know whether that will result
in criminal charges. But there have been a couple of op-eds in the states'
largest newspapers calling for criminal prosecutions."

"We
have also seen people saying publically that the coal industry in general is
bad for the state of West Virginia - which is tantamount to heresy. Many
have thought these things, but there hasn't been a willingness to voice
it."

"There
was a lot more shock and dismay in 2006, because it seemed like such a surprise.
This time, there is less rhetoric and more anger."

Heyman
says that coal still has its supporters.

"People
who are tied into the economy - successful local business owners -
will say - this is the only thing that brings money into our area,"
Heyman said.

"I
was making this point to another reporter - that there is a split -
between people like car dealers, who are successful and tied into the American
dream in a sense - and people who live on the margins. I was saying the
successful businessmen are much less likely to criticize Massey."

"And
he went and talked to a local prominent businessman in Raleigh County. And that
businessman refused to talk with him because he said - there is so much
anger at the company, that if his customers heard him on the air saying good
things about Massey and Blankenship, that it would blow back on him."

"That's
the reverse of what we would have seen in the past. So, there's a power
dynamic. And there is a tipping point where the king loses control of the kingdom.
And then everything goes to hell for him. I don't know if we are at that
point."

"Yes,
coal is king in West Virginia. But it's never been a peaceful kingdom.
There has been a long history of conflict and dispute and even violence between
the coal industry and workers or environmentalists. It's always a very
restive situation."

Last
week, an editorial in the Mountain Eagle newspaper of Whitesville, Kentucky
asked the question - Why
Do Miners Die?

And
the paper answered this way:

"They
die because of negligence. They die because the company they work for cares
more about running coal than making mines safe. And they die because the federal
agency that is charged with protecting them fails in its mission."

"The
mine was projected to earn $145.6 million for Massey this year, and nothing
was going to get in the way of meeting that goal. Massey CEO Don Blankenship
has dismissed any and all criticism as the work of 'the enemies of coal.'
He's God, in short, and you're not."

In
a now infamous 2005 memo, Blankenship wrote
this to his workforce:

"If
any of you have been asked by your group presidents, your supervisors, engineers,
or anyone else to do anything other than run coal (i.e. build overcasts, do
construction jobs, or whatever) you need to ignore them and run coal."

The
following year, a deadly fire broke out at another Massey mine, Aracoma, killing
two men.

The
memo helped federal prosecutors secure a guilty plea from Massey's Aracoma
unit in January 2009. The company was fined $2.5 million.

[For
a complete transcript of Interview with Dan Heyman, see 24 Corporate Crime
Reporter 16(12), print edition only.]