Criminal Investigations of Massey Energy Go Forward as Citizen Pressure Builds for Prosecution

Just over a month ago I wrote urging criminal prosecution of Massey Energy executives for the deaths of coal miners at the Upper Big Branch Mine. Since then more evidence of criminal wrongdoing has been shown and federal prosecutors and the FBI are investigating the corporation and its executives. In addition, citizen pressure urging prosecution is growing and financial problems for the corporation are showing.

I went to Richmond to attend the Massey Energy shareholder meeting on May 18^th. We could not get inside but joined more than 1,000 people outside protesting the actions of Massey Energy and their CEO, Don Blankenship. One chant that was repeated regularly was "Send Don to Jail." Protesters included coal miners and their families, environmental activists, economic justice advocates and concerned citizens. See videos of the event here, here and here.

Some of the protesters were able to get inside and drop a banner as shareholders entered their meeting in the main ballroom of the Jefferson Hotel. Activists from Rising Tide occupied the adjacent rotunda, chanting loudly and draping a 10' x 10' banner over the railing saying, "Massey - Stop Putting Profits Over People!" Two activists, Kate Finneran and Oscar Ramirez were arrested.

The day before the meeting, two mountaintop removal mining activists were arrested and charged with trespassing, conspiracy, obstruction and littering when they blocked a road to a Massey Energy office with trash. Emma Kate Martin, 18-years-old, and Ben Bryant, 23, of Climate Ground Zero were charged in Julian, WV and were being held in the Southwestern Regional Jail on $100,000 bail. The bond was later reduced to $2,500 and at least one of the activists, Bryant, is accepting an onerous plea agreement of time served, community service and house arrest.

The key vote at the shareholder meeting was the election of three board nominees who ran unopposed. The company refused to reveal the outcome of the votes, saying only they received a majority vote. United Mine Workers President Cecil Roberts said the vote must have been close for the company to conceal the totals saying "They ran unopposed and almost lost." North Carolina State Treasurer Janet Cowell, whose office is one of nine state pension funds or treasurer's offices opposed to the company's directors, described the close results as "a near majority of shareholders have no confidence in these directors."

The company, which had promised an open meeting, put the meeting on the Internet in a live feed, until the question and answer period. At that point, the company cut off the feed so no one could see or hear what occurred. UMW's Roberts reported that there were a lot of tough and angry questions posed to the company. In fact, the news media were not allowed in the meeting room. They were kept in a separate room and the piped-in feed from the meeting was cut off to them as well when the questions began.

Criminal investigations are beginning. The FBI is currently investigating Massey Energy for criminal negligence and its role in the death of 29 miners at the Upper Big Branch Mine. NPR reports the FBI is investigating possible tampering with safety monitors as part of its criminal probe. Another aspect of the investigation involves a May 13 disclosure by MSHA investigators who acknowledged that a page was removed from the fireboss book where Performance Coal officials were required to record daily ventilation fan measurements. The missing page in the ventilation plan was first publicly disclosed in a lawsuit against the mine administration by the two of the dead miners' families. The missing page could have noted when mine personnel checked ventilation fans and provide evidence of criminal negligence.

The U.S. attorney's office in Charleston, West Virginia, said May 14 that it is investigating the company operating Upper Big Branch, for "willful criminal activity." The U.S. attorney's office said in a letter to the Department of Labor's Mine Safety and Health Administration that investigators are looking into possible criminal conduct by the mine's operator, Performance Coal, and its directors, officers and agents. Performance Coal is a subsidiary of Massey Energy. The criminal probe includes examining violations at Upper Big Branch that date back to at least 2007.

The Criminal probe is being coordinated with an investigation by the Mine Safety and Health Administration which began interviewing witnesses on May 10 at the agency's mine academy in Beaver, WV. The criminal investigators asked that MSHA stay appeals of civil fines involving 500 citations so they do not conflict with the criminal investigation. The interviews are taking place behind closed doors and names of witnesses are not being released. The agency claims this is being done to protect the witnesses and to prevent coordination of testimony because they are serious about the investigation.

My initial article painted a prima facie case of criminal negligence by highlighting the thousands of citations, millions of dollars in fines and previous deaths of miners. Since then statements in the media are making a criminal case stronger.

NPR interviewed ten supervisors and miners at Upper Big Branch off the record and reported statements like: "They wouldn't fix the ventilation problems," a former supervisor and a member of mine management said. "I told them I needed more air. They threatened to fire me if I didn't run enough coal." And, another miner said "there was constant confusion" in the management of the airflow system. The airflow system is critical to preventing explosions like occurred at Big Branch.

The Washington Post reports that regulators "said senior managers showed 'reckless disregard' for worker safety by telling a foreman to ignore a citation the mine had received for faulty ventilation, according to the inspectors' handwritten notes." The notes from inspections in early January, say the president and a vice president of Massey Energy's Performance Coal subsidiary told a foreman at the Upper Big Branch mine "not to worry about it" when he spoke to them about a ventilation problem cited by federal mine safety inspectors." Further, according to the notes an unidentified mine employee told an inspector about a serious ventilation problem -- air flowing the wrong direction in an intake duct. He reported the problem had not been fixed because Performance Coal President Christopher Blanchard and Vice President Jamie Ferguson instructed a foreman, Terry Moore, to disregard the issue. A MSHA inspector described their actions as "reckless disregard of care to the miners," adding later: "I believe the operator has shown high negligence due to fact of management knowing where problem is." His prescient comments predicted that this could "result in fatal injuries."

Russell Mokhiber, a West Virginia resident who has set up ProsecuteMassey.org, says "If a driver in West Virginia drives recklessly, he will be prosecuted for manslaughter. When a coal operator recklessly and negligently operates a mine that kills workers, he should be prosecuted for manslaughter." Mokhiber has talked with prosecutor Kristen Keller who says that she will prosecute executives for manslaughter if the evidence supports it. People can go to ProsecuteMassey.org to sign a petition urging prosecution.

The reported evidence provides a prima facie case of involuntary manslaughter. 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."

Another coalition, which I serve as spokesperson for, StopTheChamber.com, is offering a $50,000 reward for information leading to the arrest and conviction of Massey Energy officials. The reward seeks to encourage whistle blowers to come forward and report on the potential criminality of executives.

All of this is having a significant negative impact on Massey Energy. The stock has plummeted over 40 percent from a year-high price of $54.80 on April 5, when the Upper Big Branch mine accident occurred. The drop has lowered the company's market value to $3.37 billion. It fell 57 cents, or 1.7 percent, to $32.72 the day of the shareholder meeting in New York Stock Exchange composite trading.

The company has had to work to reassure Wall Street that is will survive the disaster. A growing number of investors are questioning CEO Don Blankenship's role. Lawsuits filed on behalf of victims and shareholders are increasing. Government regulators continue to criticize the company's safety record.

Massey said last month that it expects a second-quarter charge of as much as $212 million for the accident, more than twice its 2009 earnings. The costs will include $80 million to $150 million for benefits for families of the miners, rescue and recovery efforts, insurance deductibles, legal and other contingencies, Massey said. The value of the damaged equipment, development and mineral rights is an additional $62 million.

While criminal and civil investigations are a good step, citizens will have to be vigilant to make sure that these do not turn into a white wash of dirty coal. A corporation worth over $3 billion can easily handle fines in the tens of millions, and Massey has already paid the largest fine in coal history, so more than fines are needed and that means personal responsibility - jail time - for Don Blankenship and other executives.