Massey Executive Pleads Guilty to Conspiracy Charges

Former Massey Energy Co. executive David Hughart, 53, of Crab Orchard, W.Va., pleaded guilty to two federal crimes today in connection with an ongoing investigation of the company’s actions uncovered during the Upper Big Branch disaster investigation.

Hughart, the former president of Massey’s Green Valley Resource Group, admitted that he conspired to impede MSHA investigations and conspired to violate mine health and safety laws.

“Mine safety and health laws are not optional,” said U.S. Attorney Booth Goodwin. “This prosecution reiterates the message that mine safety violations are very serious crimes.”

Hughart admitted that he and others at Massey conspired to violate health and safety laws and concealed those violations by warning mining operations when MSHA inspectors were arriving to conduct mine inspections.

The investigation was conducted by the Federal Bureau of Investigation, the Department of Labor Office of Inspector General, and the Internal Revenue Service Criminal Investigation Division. Alpha Natural Resources, Inc., which acquired Massey’s operations in a June 2011 merger, is continuing to cooperate with the investigation.

Hughart faces up to six years in prison and a $350,000 fine when he is sentenced on June 25, 2013 by United States District Judge Irene C. Berger. Hugart is the third person to be convicted from the UBB investigation.

Hughie Elbert Stover, head of security, was sentenced to three years in prison for lying to investigators and destroying documents from the UBB mine (19 MSHN 139). His conviction was upheld by the U.S. Court of Appeals for the 4th Circuit.

Former UBB mine superintendent Gary May was sentenced to 21 months in jail and a $20,000 fine under the conspiracy statute (20 MSHN 43).

Counsel to the United States Attorney Steven Ruby is handling the prosecution.

Volume 20, Number 4

  • Accidents:
    • Consol continuous miner operator caught in machine conveyor (100)
    • Motor operator pinned in underground collision at JWR mine (101)
    • Roof fall blocks intersection in Rosebud Mining low-coal mine (101)
    • Warrior Coal mine has two roof falls in a day (102)
    • Rox Coal mine has second large roof fall in month (102)
  • Civil Penalties:
    • District Court rejects argument for bond, but orders operator to pay delinquent fines (102)
    • Secretary goes to court over unpaid penalties, failure to certify impoundment (103)
    • Settlement reached with Connecticut operator, but case didn’t include all delinquent penalties (104)
    • Trucking companies continue to haul despite years of delinquent penalties for unsafe vehicles (104)
  • Criminal Proceedings:
    • MSHA inspector gets 2 years probation for falsifying inspection records (105)
    • State of Pennsylvania pressing charges against miner smoking in Emerald Mine (105)
  • Discovery: ALJ says inspector notes are not subject to ‘work-product privilege’ (106)
  • Fatalities:
    • Explosion of hydraulic cylinder kills one, injures another (107)
    • Hoist overturns scoop, killing driver (107)
    • Coal miner fatally injured while correcting derailment (107)
    • Fourth miner in 2 years fatally pinned between continuous mining machine and rib (108)
    • Multiple failures led to deadly fall from conveyor tip (109)
    • Inhalant abuse suggested as factor in fatal truck runaway (111)
  • Federal Tort Claims Act: Aracoma widows win round in state court (112)
  • On the Move: Harkin to depart Senate after 113th Congress (114)
  • Private Suits:
    • Miner files suit against Argus Energy after becoming disabled in fall from loader (114)
    • Claim against Consol and foreman remanded to West Virginia circuit court (115)
    • Judge Berger allows amended complaint against Alpha in UBB disaster (116)
  • Settlements: ALJ rejects settlement where CLR sought 30% reduction in penalties (116)
  • Review Commission Orders and ALJ Decisions (118)

Judge Rejects Settlement and Appearance of CLR in American Coal Case

Review Commission ALJ William Moran rejected a settlement today involving The American Coal Co., and violations found at its New Era Mine, and has taken the unprecedented step of refusing to accept the appearance of MSHA’s Conference and Litigation Representative in the case.

The settlement motion raised the proverbial “red flag” when the CLR in the case sought a 30% “across-the-board” reduction of 32 citations, with one reason offered: “The Secretary has determined that a reduced penalty is appropriate in light of the parties’ interest in settling this matter amicably without further litigation.”

The settlement did not change the gravity or negligence of any of the citations—only the penalty.

In denying the motion, Moran said, “The idea that every one of 32 citations could warrant a 30% reduction demonstrates, by that fact alone, that the reductions were more in the nature of yard sale, rather than any individualized review meriting, by some impossibly small odds, that each just happened to have earned such an implausibly uniform reduction.”

Moran said “there is no legitimate basis to reduce any of these citations. … Nor can it be said that the cited matters are all negligible violations.”

The violations occurred at the New Era Mine, controlled by Robert E. Murray.

Several examples of the violations were offered by Moran:

    LI>On Aug. 16, 2010, MSHA fined the company $585 for an S&S violation of §77.404(a) where a haul truck seriously leaking oil with an engine that could not be shut down (Citation 8424013);
  • A $425 penalty was issued for a violation of §75.370(a)(1) on Aug. 24, 2010 where MSHA said it found up to 5 feet ofwater in a longwall bleeder (Citation 8424511 );
  • A fine of $3,405.00 was assessed for an S&S violation of §75.202(a) where MSHA found inadequate roof and rib support, a problem which had been cited some 107 times at this mine in the past 2 years, (Citation 7579878).
  • On July 28, 2010, MSHA found an outdated escapeway map in violation of §75.1505(b) and assessed a penalty of $946.00 (Citation 8424509); and found an incompletely installed life line in the primary escapeway in violation of §75.380(d)(7)(I) with a $263.00 penalty (Citation 8424508).
  • On July, 20, 2010, MSHA cited the company for coal accumulations up to 20 inches in depth, and 18 feet wide for a distance of 165 feet in violation of §75.400 with a proposed penalty of $1,944 , and a similar violation of §75.400 in citations 8424502 with a penalty of $2,678.

Harsh Words for Secretary
In chastising the CLR and Secretary, ALJ Moran said, “The only thing that the motion gets right is the math; each of the 32 alleged violations was reduced by 30 percent.

“Motions such as these serve to demonstrate the great wisdom of Congress. It knew that without the fail-safe it installed in the Mine Act, through Section 110(k) of that Act, settlements such as this could occur. … Submissions such as this lay bare the failures that would most certainly occur should the Secretary ever be able to have this protective provision removed from the Commission’s oversight.”

In refusing to allow the CLR in this case to practice before him, Moran said competence is an essential part of the CLR process. “Regrettably, here that competence has not been demonstrated. The idea that there can be a wholesale, large, across the board reduction for a significant number of violations with no justification other than to achieve an amicable settlement and to avoid further litigation, demonstrates a lack of understanding about the operation of the Mine Act’s requirements where civil penalty reductions are sought.”

This is not the first time that settlements have been rejected.

On Oct. 15, 2012, ALJ Thomas McCarthy sent a stern warning to the Solicitor’s Office, saying that the Secretary of Labor may not “continue to act in blatant disregard of the Mine Act,” in refusing to provide information required for settlements, and threatened disciplinary proceedings. ALJ Priscilla Rae wrote an equally harsh opinion, two days after Judge McCarthy, although stopped short of threatening disciplinary action against the Solicitor involved in the case before her (19 MSHN 590).

All of the recent rejected settlements cite the Commission’s Black Beauty decision upholding a decision by ALJ Margaret Miller—a former attorney for the Solicitor’s Office—rejecting a settlement involving Black Beauty Coal Co. The Commission majority ruled that an ALJ is permitted to consider the deterrent effect of a proposed penalty when deciding whether or not to approve a settlement. In addition to ruling on whether a penalty could be increased as a deterrent, the majority also ruled that Judge Miller did not abuse her discretion by requesting additional information before she approved a settlement between the Solicitor’s Office and Black Beauty Coal Co. (19 MSHN 489).

The American Coal Co., 2/11/2013, Docket No. LAKE 2011-12.
CLR for MSHA: Jeffrey Williams, CLR, MSHA, 2300 Willow Street, Suite 200 Vincennes, Ind., 47591
Representative for The American Coal Co.:Kathy Bartek, Paralegal, Murray Energy Corp., 46226 National Rd., St. Clairsville, OH 43950

Vol. 20, No. 3

    In this issue …
  • Accidents:
    • One injured in truck crash at Barrick Storm Decline (67)
    • Water-saturated roof collapses in low coal mine (68)
    • LHD unit catches fire at Stillwater mine (68)
    • Minor explosion reported at Keetac Iron Mine (68)
    • Lehigh Califoperation reports equipment fire (69)
    • Fire reported at National Cement (69)
  • Black Lung: Widow wins black lung claim on 15 year presumption rule (69)
  • Civil Penalties: Labor Dept., Wilcoal in settlement negotiations over delinquent penalties (70)
  • Combustible Materials:
    • West Virginia coal dust standards not enforced (70)
    • MSHA promotes self-testing of rock dust by coal mine operators (71)
  • Discrimination: Hearing ordered where company sues miner for filing discrimination claim (72)
  • Fatalities:
    • Welder dies in repair accident at T & T Energy mine in Kentucky (73)
    • Death resulted from ladder extension used alone at Liberty Processing Plant (73)
    • Customer truck in fatality had bad brakes, Kinsella Quarry faulted on road sign at NY quarry (75)
    • Fatality and injury rates declined in 2012, preliminary data indicate (77)
  • General News: UMWA members arrested during StLouis protest (79)
  • Inspections: December impact inspections detect fewer violations (80)
  • Loading and Hauling: MSHA lacks authority to cite companies for overloaded haul trucks, ALJ rules (82)
  • Mine Refuges: New approaches sought on coal mine refuges (83)
  • State Grants: Most states achieve zero fatalities as cuts eyed in state miner training grants (84)
  • Unwarrantable Failure: Absence of danger does not automatically mean a violation is not unwarrantable (86)
  • Workers Compensation: Ohio court upholds miner’s permanent disability award (87)
  • Review Commission Orders and ALJ Decisions (89)