Upper Big Branch settlement results in financial penalty but no criminal charges

The US Justice Department on December 6 announced that it reached a settlement agreement with Alpha Natural Resources of Virginia in which the corporation agrees to pay $209 million to clear itself of further responsibility for the deaths of 29 miners who died in the 2010 explosion at the Upper Big Branch mine in Montcoal, West Virginia. The US Mine Safety and Health Administration (MSHA) on the same day issued a final report on the explosion saying that the explosion that killed the miners was “entirely preventable” and that the company “promoted and enforced a workplace culture that valued production over safety.”

Upper Big Branch at the time of the explosion was operated by Performance Coal Company, a subsidiary of Massey Energy, which since then has been acquired by Alpha Natural Resources. Massey has subsequently changed its name to Alpha Appalachia Holdings.

United Mine Workers President Cecil Roberts called the settlement “a mixed bag.” Part of the settlement requires Alpha to invest $80 million in safety improvements in all of its underground mines. It also requires the company to pay  families of the dead miners and two miners injured in the explosion $1.5 million each for a total of $46.5 million.

Roberts called the investment in safety improvements a good first step  and noted that the settlement requires the company to report implementation progress to the US Attorney’s Office.  He said the reporting requirement was welcomed news “as long as the reporting duty has some teeth, so that corporate leaders are personally held accountable in a way that hasn’t happened before.”

He also said that he was glad that those who lost loved ones or were injured in the blast will receive some financial help toward meeting their ongoing financial burdens caused by the explosion and that the settlement allows them to pursue litigation against the company.

But Roberts said that he was disappointed that no criminal prosecution resulted from the investigations conducted by the MSHA and the US Attorney’s Office; furthermore, the settlement absolves the corporation of any criminal responsibility for the explosion.

“I must  say that we are very disappointed that the settlement apparently  includes a ‘non-prosecution’ clause, which means that neither Massey nor  Alpha admit to any criminal wrongdoing, and the US Attorney has agreed  not to pursue criminal charges against them,” Roberts said.

He noted that the agreement does not preclude charges from being filed against individuals who violated the law while working for Massey. “We remain hopeful that responsibility will be placed where it belongs–on upper level management at Massey who created the safety-last culture at the company,” Roberts said. “Until someone goes to jail, there will be no justice done here.”

The report by the MSHA finds that the explosion was caused by a dust explosion that started as a methane gas ignition. “The physical conditions that led to the explosion were the result of a series of basic safety violations at Upper Big Branch, and were entirely preventable,” reads the report. The report cites lack of equipment repair, poor ventilation, and the lack of safety work that would have prevented the dust buildup.

The report goes on to say that Massey “promoted and enforced a workplace culture that valued production over safety, including practices calculated to allow it to conduct mining operations in violation of the law.” Massey also used the threat of retaliation to prevent workers from reporting unsafe conditions to MSHA or the state mine safety office.

After learning of the settlement, United Steelworkers President Leo Gerard issued a statement saying that the $209 million settlement was “a significant step by the US government,” but that criminal charges need to be pursued.

“Executives, who personally profit from violating safety regulations, must be held criminally liable,” Gerard said. “Any executive who decides lining his pockets and those of shareholders is more important than the life and limbs of workers must be held to account criminally.”

Gerard said that the US should follow the example of Canada, which after a deadly mine explosion in 2003 passed a law known as the Westray law that holds corporations, their executives, and their directors criminally liable for negligence causing worker deaths. “The United States needs a Westray law because decisions to disregard safety regulations come from the top,” Gerard said.

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