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Criminal Investigation of Massey Energy

By Kevin Zeese

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July 2010

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Since the April 5 Upper Big Branch Mine disaster that killed 29 West Virginia miners, more evidence of criminal wrongdoing by Massey Energy has been revealed 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.

Miners and activists protest at Massey shareholders meeting—photo by Chris Eichler, Rising Tide

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

Some of the protesters were able to get inside as shareholders entered their meeting in the main ballroom of the Jefferson Hotel. Activists from Rising Tide occupied the adjacent rotunda, chanting loudly while draping a banner over the railing.

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 and Ben Bryant of Climate Ground Zero were charged in Julian, West Virginia and held in the Southwestern Regional Jail on $100,000 bail. The bond was later reduced to $2,500 and Bryant is accepting a 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 (UMW) 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 FBI is currently investigating Massey Energy for criminal negligence for its role in the death of the 29 miners. NPR has reported that 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 that a page was removed from the fire-boss 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 two of the dead miners' families. The missing page would have noted when mine personnel checked ventilation fans and could help provide evidence of criminal negligence.

The U.S. attorney's office in Charleston, West Virginia said on May 14 that it is investigating the company 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 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, West Virginia. 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 co-ordination of testimony.

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 what occurred at Big Branch.

Kevin Zeese is executive director of ProsperityAgenda.US and spokesperson for StopTheChamber.com.

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