Massey Gets Away With Murder: Time To Revoke their Charter
Yesterday, Alpha Natural Resources, the parent company of Massey Energy, agreed to pay $209 million in criminal and civil penalties, and compensation to the families of twenty-nine miners killed by an explosion at the Upper Big Branch mine in West Virginia last year.
But for Free Speech for People, Appalachian Voices and the Rainforest Action Network, a financial settlement and admission of criminal liability simply isn’t enough. The groups have renewed their call for Delaware Attorney General Beau Biden to revoke Massey’s corporate charter.
In a joint statement the groups said, “A financial settlement, even for hundreds of millions of dollars, is just not enough to prevent corporations like Massey from abusing their enormous power over our lives. Alpha earned $2.3 billion in the last quarter alone. It is simply not acceptable for corporations to buy their way out after criminally killing people.”
Below is my post earlier this year regarding the tragedy at the mine and the campaign to revoke Massey Energy’s corporate charter.
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It was Easter Weekend 2010 when 33-year-old Gary Quarles—a skilled miner with fourteen years experience and a father of two— and an “up and coming” miner, Nicolas McCroskey, 26, were having dinner with a friend. They said that “something bad was going to happen” at Massey Energy’s Upper Big Branch (UBB) mine where they worked.
That Sunday, Quarles also confided in a close friend he’d known since childhood.
“I’m just scared to go back to work,” he said. “Man, they got us up there mining and we ain’t got no air. You can’t see nothing. I’m just scared to death something bad is going to happen.”
The next day, a powerful explosion tore through two and one-half miles of the mine, killing Quarles, McCroskey andtwenty-seven of their fellow miners. Men like Carl Acord, 52, who had worked the mines for thirty-four years and was a proud member of the “Old Man Crew”; Jason Adkins, 25, who had won all-state honors in football and basketball in high school; Cory Davis, 20, who had followed his family into the mines; US army veteran Steven Harrah, 40, devoted to his wife and 6-year-old son; Dean Jones, 50, leaving behind his wife and a son with cystic fibrosis; Roosevelt Lynch, 59, a miner for more than thirty years and a substitute teacher, as well as a basketball, football and track coach; Vietnam vet Benny Willingham, 61, a coal miner for thirty years who was five weeks away from retirement; and so many more.
Of the twenty-nine men killed, nineteen died as a result of carbon monoxide intoxication and ten as a result of injuries suffered in the explosion.
One week later, former Governor Joe Manchin asked J. Davitt McAteer, an assistant secretary of labor in charge of mine safety in the Clinton administration, to conduct an independent investigation into the causes of the disaster and issue recommendations to prevent similar tragedies in the future.
McAteer and his colleagues—experts in coal mining, mining law, mining communities and occupational safety and public health—released their report last month after conducting underground investigations for over six months and conducting more than 300 interviews. Eighteen corporate officials from Massey Energy and its subsidiary Performance Coal—which ran the UBB mine—invoked the Fifth, declining to be interviewed in order to protect from self-incrimination.
Although it received insufficient media attention, the 126-page Governor’s Independent Investigation Panel (GIIP)report released last month is damning in its conclusion: “Ultimately, the responsibility for the explosion at the Upper Big Branch mine lies with the management of Massey Energy. The company broke faith with its workers by frequently and knowingly violating the law and blatantly disregarding known safety practices.”
The investigation concludes that the explosion occurred when a spark—which occurs frequently when cutting coal due to friction—ignited an explosive accumulation of methane, causing a fireball. The fireball in turn ignited coal dust that had been allowed to build up, and the coal dust carried the explosion throughout more than two miles of the mine.
Massey’s blatant disregard for safety had created a perfect storm.
The methane and coal dust accumulated because of an inadequate ventilation system—the same one Quarles and so many of his co-workers had complained resulted in “no air” circulating where they were mining. The coal dust remained hazardous due to inadequate “rock dusting” which is used to render coal dust inert—Massey only had two men responsible for dusting the entire mine on a part-time basis, when the size justified a two-man crew assigned solely to rock dusting on at least two shifts every day. Finally, the fire spread due to Massey’s failure to maintain vital safety equipment—missing or clogged water sprays could have doused the fire at the point of ignition.
And Massey had ample warnings about these safety problems.
“Pre-shift examinations” between January and April 2010 identified 1,834 instances when rock dusting was needed, and only 302 times when it was performed—in fact, fireboss Michael Elswick, who was killed after just four days on the job, reported that the conveyor belts needed to be cleaned and dusted just one-half hour before the explosion. Also, in fourteen out of fifteen months preceding the disaster, UBB received citations from federal or state inspectors regarding rock dust issues, and nearly half of the forty federal citations were classified as “significant and substantial.” In the months leading up to the explosion, one Mine Safety and Health Administration (MSHA) inspector pulled workers from a section due to inadequate airflow, a MSHA ventilation specialist warned Massey of “a dangerous situation,” and a foreman was told by management to “ignore a citation” the mine received for faulty ventilation. Finally, a foreman who stopped his crew from working for one hour while trying to address ventilation problems was suspended for three days due to “poor work performance” (the executive who suspended him, Jason Whitehead, refused to cooperate with the investigation and was promoted to Massey’s vice president of Underground Operations several months after the disaster).
Even the autopsy reports were stunning in terms of what they revealed about Massey’s reckless disregard for dust control—twenty-four victims were tested for black lung disease caused by coal mine dust, and seventeen came back positive. The national prevalence rate in the United States among active underground miners is 3.2 percent, and the rate in West Virginia is 7.6 percent.
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Inadequate ventilation, poor rock dusting, shoddy maintenance—twenty-nine miners dead.
Where is the justice? Where are the jail terms?
So far, just Massey’s chief of security has been indicted—and that was for lying to the FBI and obstructing the criminal investigation. What about the top brass who insisted that the miners keep running coal even as they rightly feared that basic safety standards were being ignored?
This month, Massey was sold to Alpha Natural Resources for $7.1 billion, creating the nation’s second-largest coal company. Alpha CEO Kevin Crutchfield named Massey’s chief operating officer, Chris Adkins, as one of two people charged with spearheading Alpha’s main safety program. Adkins took the Fifth during the independent investigation, and during the disaster reportedly told trained rescuers who were following critical safety protocols to disregard them, that they weren’t “playing mine rescue.”
MSHA mine rescue team member Jerry Cook would later testify, “You know, it’s bad enough trying to find twenty-nine people, you don’t need to have forty more to look for.…They just had a major explosion. They could’ve killed every one of us.… We were expendable that night, that’s my opinion.… they didn’t care what they did with us.”
And yet Crutchfield described the pairing of Adkins and another executive to lead Alpha’s safety program this way: “Can’t think of two better individuals to lead this effort.”
Fortunately, two public interest groups are leading a very different effort—one that says no more business as usual; no more treating workers as disposable and then taking profits and promotions.
Appalachian Voices and Free Speech for People have petitioned Delaware Attorney General Beau Biden to investigate Massey Energy and revoke its corporate charter (which is in Delaware, as is Alpha’s charter). According to the petitioners, the move would allow the state to appoint a Receiver who would be empowered to replace executives responsible for mismanagement and legal violations, and ensure that better, more responsible managers comply with the law and protect employees.
“It is well established that the corporate charter is a privilege, not a right,” says Jeff Clements, co-founder and general counsel for Free Speech For People. “Delaware, as with other states, reserves the right to revoke or forfeit state corporate charters when they are abused or misused, as in cases of repeated unlawful conduct. The Massey Energy Company presents a classic case of a corporation whose charter should be revoked.”
“Massey Energy has demonstrated a gross disregard for workers and communities in Central Appalachia by systemically ignoring mine safety regulations as well as basic clean air and clean water laws,” says Willa Coffey Mays, executive director of Appalachian Voices. “Bad actors like Massey should not be afforded the same privileges as businesses that play by the rules.”
In Delaware, according to legal precedent, revocation of a corporate charter is appropriate in cases of “a sustained course of fraud, immorality or violations of statutory law.”
That certainly seems to be Massey’s way of doing business. In their letter to Attorney General Biden, Clements and Mays note the GIIP report’s description of a “shocking corporate culture of illegality, [including an] ‘enemies lists’, ‘codes of silence’, and a ‘too big to be regulated’ attitude.”
Indeed, the report describes a “normalization of deviance” at Massey, where “wrongdoing became acceptable, where deviation became the norm. It was acceptable to mine coal with insufficient air, with buildups of coal dust, with inadequate rock dust. The same culture allowed Massey Energy to use its resources to create a false public image to mislead the public, community leaders and investors—the perception that the company exceeded industry safety standards. And it became acceptable to cast agencies designed to protect miners as enemies and to make life difficult for miners who tried to address safety. It is only in the context of a culture bent on production at the expense of safety that these obvious deviations from decades of known safety practices make sense.”
Towards the end of the investigative report there is a description of retired miner Leo Long, testifying at a Congressional field hearing one month after the explosion.
“It just tore us apart, broke our hearts,” the elderly man said of the death of his grandson, 31-year old Ronald Lee Maynor, a father of two . “I cry every day and every night. I can’t help it.” He then pleaded with the Representatives. “I beg you. Please do something.”
Read the report
to learn what happened on April 5, 2010, and what can be done to avert future disasters; and join the effort to end business as usual—revoke Massey Energy’s corporate charter