Sunday, March 3, 2013

Latest Massey Guilty Pleas Put Advance Warnings Back in the Spotlight

On April 5, 2010, an explosion rocked Massey Energy's Upper Big Branch Mine ("UBB") in Montcoal, West Virginia.  The blast killed 29 Massey miners, making it the worst coal mine disaster in recent memory.  The disaster also spawned multiple investigations, which determined that the blast was caused, in part, by a dangerous build-up of methane gas that ignited and combined with a build-up of coal dust that perpetuated the explosion and resulting fire throughout the mine.  The investigations further determined that the safety hazards causing the explosion were the result of a conspiracy among Massey officials to make coal production a priority over safety and to conceal hazardous working conditions inside the mine. 

One of the practices allegedly used by Massey to cover up hazardous mine conditions was the provision of advanced notice to miners working underground that MSHA inspectors were going to inspect the mine.  Such a practice is a violation of 30 U.S.C. § 820(e), which  provides that "[u]nless otherwise authorized by this Act, any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be punished by a fine of not more than $ 1,000 or by imprisonment for not more than six months, or both." 

 Obviously, once the miners know that MSHA is on its way to the mine they can lay down rock dust (a substance used to control the combustibility of coal dust build-up) and "make things look nice", as Massey foreman Gary May recently admitted when he pled guilty to federal charges stemming, in part, from Massey's alleged scheme to provide advance notice of MSHA inspections. 

As a result of substantial criticism of its enforcement practices following UBB, including from members of Congress, MSHA has renewed its focus on advance notice.  The agency wrote dozens of citations for advance notice in the two years following UBB.  Several Massey officials have been the targets of criminal prosecutions relating, at least in part, to provision of advance notice of MSHA inspections.  The latest Massey official to plead guilty to such charges, David Hughart, indicated at his plea hearing that the conspiracy at Massey to provide advance notice of MSHA inspections was ordered from the very top official in the company.  When asked by a federal judge what officials ordered the policy of providing advanced notice, Mr. Hughart replied "the chief executive officer."  Although he did not name him, the CEO of Massey during times relevant to Mr. Hughart's plea was controversial and notorious CEO Don Blankenship.  Mr. Hughart is cooperating with the government, such that higher-ranking Massey officials, including Mr. Blankenship, could be targets of future federal prosecutions.

The guilty pleas of Mr. May and Mr. Hughart have put advance notice back in the mine safety spotlight.  There is no doubt that MSHA and federal prosecutors are focused on ensuring that miners are not tipped off to MSHA inspections so that they can cover up and conceal hazardous conditions that exist inside the mine during day-to-day operations.  It is also clear that, not only will provision of advance notice result in citations to the mine operators, but those that provide advance notice and those who order that advance notice be provided will be prosecuted to the full extent of the law.  Accordingly, coal company management and other company officials should avoid any practices that could lead to a suggestion that miners are being tipped off regarding MSHA inspections.

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