Upper Big Branch Mine Disaster: Justice Department Investigating Massey For 'Willful Criminal Activity

By SAM HANANEL

WASHINGTON — Federal prosecutors said Friday they are investigating whether there was "willful criminal activity" by the company that operates the West Virginia coal mine where 29 workers died in an accident last month.

The U.S. attorney's office for the Southern District of West Virginia said in a letter that investigators are looking into possible criminal conduct by the mine's operator, Performance Coal, and its directors, officers and agents.

The letter, obtained by The Associated Press, asks the Labor Department to hold off pursuing dozens of civil cases against Performance for alleged mine safety violations.

Performance is a subsidiary of Massey Energy Co., which owns the Upper Big Branch mine.

Last month, federal law enforcement officials said the FBI had interviewed nearly two dozen current and former employees of Massey in the probe. But the Justice Department declined to publicly confirm there was a criminal investigation.

In the letter Friday, Assistant U.S. Attorney R. Booth Goodwin II said his office wants to make sure the pending civil cases don't interfere with the criminal probe. He asks Douglas White, a top lawyer for the federal Mine Safety and Health Administration, to delay 44 civil penalty cases against Performance that could form the basis of criminal penalties under federal mine laws.

The cases involve about 500 citations issued between June 3, 2006, and April 5, 2010 – the day of the explosion, according to a federal official familiar with the records. The official requested anonymity because he was not authorized to discuss the case.

About 300 of the citations are for "significant and substantial" violations, which are among the most serious that can be alleged at a mine, the official said. More than 90 allege the mine operator's high negligence or reckless disregard for safety standards.

The citations range from inadequate roof support and ventilation problems to improper accumulations of combustible dust, the official said.

A Massey spokesman has said previously that the company was not aware of the nature of the federal probe but that "we intend to cooperate in all phases of the accident investigation."

Massey chief executive Don Blankenship is set to testify next week before a Senate panel looking into the accident.

The company was repeatedly cited for problems with its methane ventilation system and other issues in the months before the accident.

A half dozen of the civil cases federal investigators are looking at have been pending for at least three years at the Federal Mine Safety and Health Review Commission, a separate agency that resolves mine safety cases.

Some lawmakers blame Massey for clogging the system with legal challenges to dozens of safety citations to delay stronger penalties. The commission has a backlog of more than 16,000 cases and lawmakers are trying to direct more money so it can hire more staff.

Massey has defended its safety record and says all of its appeals have merit.

MSHA Director Joe Main said at a Senate hearing last month that Massey has a "troubling record" of safety violations and appeared to take a "catch-me-if-you-can" attitude toward workplace safety at the mine.

Corporate Front Group Funded By Coal Industry Scorns Widow Of Mine Disaster: ‘Everyone Wants Free Money’

By Lee Fang

Yesterday, the AP reported that Marlene Griffith, a widow of William Griffith, one of the 29 men killed in last week’s explosion at a coal mine in West Virginia, is suing Massey Energy, the owner of the mine. Griffith filed a wrongful death lawsuit in Raleigh County Circuit Court, arguing that Massey’s handling of work conditions at the mine plus its history of safety violations amounted to aggravated conduct that rises above the level of ordinary negligence. Marlene and here husband were to celebrate their 33rd wedding anniversary weeks after the deadly blast on April 5.

Indeed, as the Wonk Room’s Brad Johnson has reported, the mine where William Griffith worked had been cited for over 3,000 safety violations. Massey Energy CEO Don Blankenship, who has mocked safety regulators as being “as silly as global warming,” had gummed up the safety regulations process by filing endless appeals instead of paying fines and fixing safety problems.

Responding to the lawsuit, Nathan Coffey, the Public Affairs Coordinator of the American Legislative Exchange Council (ALEC), took to Twitter yesterday to mock Marlene Griffith. Coffey posted a link to the AP story about Marlene Griffith, sarcastically commenting that “Everyone wants free money!” View a screen shot of the comment below:

ALEC, founded in 1973 by conservative activist Paul Weyrich, is a DC-based front group which helps state lawmakers craft corporate-friendly legislation. State-based schemes aimed at deregulation are often conceived and coordinated out of ALEC. It is funded by some of the biggest corporations in America, including Koch Industries, Wal-Mart, and AT&T, as well as by the coal industry. Peabody Coal’s Kelly Mader, a Vice President for State Government Affairs at the company, sits on the board of directors of ALEC.

Rush Lies Again: ‘There Were Union Workers’ At Non-Union Mine Explosion

By Brad Johnson

Last Friday, Rush Limbaugh demanded to know why a coal miner union didn’t protect the 29 miners who were killed in one of Massey CEO Don Blankenship’s mines. After ThinkProgress reported that there was no union at the mine, Limbaugh claimed yesterday that it was a “fact” that “there were union workers there.” Limbaugh cited a news article that the “National Labor Relations Board has affirmed a decision that Massey Energy must rehire 85 coal miners who alleged they were illegally discriminated against because of their union affiliation.” Limbaugh concluded that “the left” who “are trying to blame the Massey disaster on its union busting” were wrong:

So there were union workers there, and so the United Mine Workers should have been overseeing their safety. United Mine Workers of America. There were union workers at that mine, and the left is trying to say, “You can’t say that, Limbaugh! Why it’s a nonunion shop. That SOB CEO got rid of all the unions!” No, no. He agreed to bring back 85 of them. You people, it’s been 21 years. At some point you are going to learn: If you go up against me on a challenge of fact, you are going to be wrong. It’s just that simple.

Watch it:

On this “challenge of fact,” Limbaugh is wrong once again. The 85 union coal miners were actually at a different Massey subsidiary at a different mine in a different county than the one where the disaster occurred. The coal miners that Limbaugh references were located at Mammoth Coal’s Mammoth (formerly Cannelton) mine in Kannawha County, WV, while the tragedy occurred in Performance Coal’s Upper Big Branch-South mine in Raleigh County, WV.

In fact, Blankenship successfully fought three different attempts by the United Mine Workers of America to unionize Upper Big Branch in the 1990s. After the last union drive failed, Blankenship cut bonuses in half and increased hours by fifty percent.

Update Andrew Tyndall observed the network nightly news coverage of the disaster and notes:

Not once, in all five days of coverage, did a single reporter mention the organization that has worked hardest over the decades to make sure that mining management does not cut safety corners and that miners can monitor their own working conditions with impunity. The union went unmentioned, as did the fact that the Upper Big Branch workforce went unorganized.

However, MSNBC's Ed Schultz has dedicated significant coverage to the lack of union representation at the mines.

Update Phil Smith, Communications Director for the United Mine Workers of America, tells ThinkProgress that Massey Energy is still appealing the NLRB decision, and that the 85 union miners have not been rehired. In fact, Massey Energy has not employed any union miners for over a decade. There are only about 80 UMWA members working for Massey, not in the mines but at two preparation plants in West Virginia.