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Former Massey executive charged in mine safety conspiracy

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The criminal investigation into the Upper Big Branch disaster moved further up the corporate ladder of the former Massey Energy on Nov. 28 when a Massey division president pleaded guilty to charges of conspiring to violate mine health and safety laws.

U.S. Attorney Booth Goodwin described the charges as historical. 

"This is the highest former Massey executive charged in this probe," Goodwin said.  "We believe he may be the highest coal executive ever charged in a mine disaster probe."

Long-time Massey division president David Hughart, 53, of Crab Orchard, was charged in federal court in Beckley. According to an information filed with the court, Hughart pleaded guilty and agreed to cooperate with prosecutors in their continuing investigation into the UBB disaster.

The charges against Hughart are not directly related to the UBB explosion in Raleigh County of April 2010, which killed 29 miners, but they are a result of that investigation.

According to information filed in federal court, Hughart is cooperating with the investigations.

The information filed with the court said Hughart and others at Massey conspired to violate health and safety laws and conspired to conceal violations by warning mining operations ahead of MSHA inspections. The violations were alleged to have occurred from 2000 through March 2010.

"The objects and purposes of the conspiracy were to hamper, hinder, impair, impede, and obstruct the lawful government functions of (Department of Labor) and (the Mine Safety and Health Administration) in the administration and enforcement of mine safety and health laws at the White Buck Mines and at other coal mines owned by Massey," the court information states.

The court information said other players are also involved in conspiracy but have yet to be named.

Hughart faces up to six years in prison on the two charges.

Goodwin said Hughart no longer is employed by Massey or by Alpha Natural Resources, which acquired Massey in June 2011.

"I believe he is working at another coal company right now, I'm not exactly sure which one," Goodwin said.

Four different reports stemming from the Upper Big Branch explosion concluded that deaths were largely preventable and tied primarily to Massey's safety culture.

Specifically, the violations related to ventilation and dust control measures. The Upper Big Branch explosion was believed to have been caused by the explosion of built-up coal dust ignited by a small methane explosion.

According to the court information, the White Buck coal mines owned by Massey frequently violated health and safety laws. Hughart was president of Green Valley Resource Group, the organizational unit that controlled the mines.

"As President of the Green Valley resource group, Hughart exercised control and authority over all aspects of the operations of the White Buck Mines," court information states.

Alpha has vowed to increase safety procedures at the former Alpha mines. Alpha has agreed to pay a $210 million settlement with the federal government for past violations at UBB. Although the settlement agreement protects Alpha itself from criminal prosecution, its former executives may still be held criminally liable for their actions.

"This is a significant charge in our investigation," Goodwin said. "The charge arises directly out of our investigation into the Upper Big Branch mine disaster. We've taken a broader strategy in this investigation than really ever before."

J. Davitt McAteer, leader of the independent investigation probe into Upper Big Branch, also said the charge was unprecedented.

"It's the exception rather than the rule – not just in the mining industry but in other industries as well," McAteer said. "The typical process is having the first-level supervisor, the foreman or someone at the supervisor level of a mine or company charged. But to have the higher-ups charged, especially as it relates to ventilation and dust control is an unusual circumstance."

McAteer said he was surprised a high-ranking official was charged but he was not surprised about the allegations.

"It doesn't surprise me that there was an operation in another division engaged in the same kind of conduct," he said.

As for the future, McAteer said the investigation sends a clear message that there is a harder look at determining the culpability up the chain.

"It sends a message to individuals who are in a supervisory and official capacity in other coal companies that you can longer try to avoid the application of the mine safety law," he said. "It sends a message to the persons in charge of companies that you can't condone this kind of conduct – you can't encourage it and can't say that's the way it is and that's the way it happens. You have to make sure that the application of the law is being followed." 

The investigation itself, Goodwin said, is highly complex. That, he said, is why charges are being revealed slowly as the investigation reveals new alleged activity.

"I believe it's safe to say it's an unprecedented sort of investigation in the mine safety and health arena," Goodwin said. "We're talking about a wide-ranging investigation reaching into a Fortune 500 company. It takes some time. We're going to move as quickly as we possibly can, but we want to get it right."

If Hughart is cooperating, higher-level officials within the Massey organization may be targeted as well. The investigations of the accident has largely alleged a culture of profits over safety, including close monitoring of mine production and its safety efforts by CEO Don Blankenship.

Goodwin said "this by no means signals an end to the investigation."

The charges against Hughart, he said, while significant, are just a step in the investigation. 

"We're going to take this investigation wherever it leads, and obviously anyone who has violated mine safety and health laws and has done so in a manner that has exposed miners lives to dangers, we're going to look at it and we're going to look at it closely," Goodwin said in response to a question regarding potential charges against Blankenship. "If appropriate, we're going to bring charges."

Goodwin declined to answer whether higher officials had already been targeted in the investigation or even if higher officials had been interviewed as a part of the investigation.

Blankenship stepped down from the company shortly before it was sold to Alpha Natural Resources.

Upper Big Branch superintendent Gary May pleaded to federal conspiracy charges and is also working with prosecutors. Hughie Stover, safety director at the Upper Big Branch mine has already been convicted of lying to federal investigators and obstructing their investigation. Thomas Harrah, a miner at Upper Big Branch, was convicted of faking a foremen's license and performing mine examinations at the Upper Big Branch mine.

The charges arise from an investigation by the FBI, the Department of Labor Office of Inspector General, and the Internal Revenue Service Criminal Investigation Division. Alpha Natural Resources is cooperating with the investigation.

Goodwin said he hopes the charges encourage other coal operators to conform to federal law and safety practices. 

"We hope this sends a message that this sort of conduct won't be tolerated," Goodwin said.

The United Mine Workers of America was one of the organizations that filed a report on the investigation. The title of its report accused Massey of industrial homicide.

"We've been saying for years that Massey Energy was a company that put production first, with safety being an afterthought," said UMWA President Cecil Robers. "We look forward to the U.S. Attorney continuing his investigation, with a special emphasis on all Massey officials, regardless of title, who formulated and implemented criminal behavior, like Mr. Hughart."

Sen. Jay Rockefeller, D-W.Va., said he is frustrated lawmakers have not yet done their part in drafting mine safety legislation. He commended Goodwin's efforts in the prosecution.

"These new revelations show a complete failure by senior management at Massey to put our miners first and absolutely reinforce the pressing need to pass comprehensive mine safety legislation," Rockefeller said.