Business, Government Legal News from throughout WVAlpha settlement balanced to save jobs

A landmark settlement of $209 million following the Upper Big Branch explosion may have been even larger if it had not been balanced against jobs the company provides in West Virginia.

U.S. Attorney Booth Goodwin said the day after announcement of the $209 million agreement not to prosecute Alpha Natural Resources on corporate criminal charges that the settlement was a balancing act. The agreement directs millions to mine safety and health research and field implementation in Alpha mines, as well as directs restitution to family members of the 29 coal miners who died in the blast.

"What we set out with was a blueprint with these pieces in mind and then arrived at appropriate figures for each of these pieces, balancing that with the nature of the circumstances and the amount of money that sufficiently reflects the seriousness of the matters involved that would be necessary to advance the state of the art in mine safety, not only at Alpha and in the rest of the industry, but also in the amount of money to compensate for the victims from a restitution standpoint," Goodwin said.

A part of that balancing act was finding an amount that would secure funding for programs to ensure miners can go to work safely without draining the corporation to the point of facing layoffs.

"It's always a balance," Goodwin said. "I don't think the victims would have wanted it to affect the jobs of their former co-workers. It had to be large enough to be fair and just. It had to be a wake-up call. It had to hit the company where it counts, but we had to recognize there is no more Massey."

Alpha became one of the largest employers in West Virginia when it acquired Massey Energy. In that transaction, Alpha acquired potential liability for charges rising up from the Upper Big Branch disaster, one of the worst in recent decades.

"It's a company that helps 14,000 coal miners put food on their tables. If we would have demanded more money or charged the company, it's a near certainty a large number of those miners would have potentially lost their jobs," Goodwin said. "That isn't a good outcome for anybody. We didn't want to do that. We know the victims of this terrible tragedy wouldn't have wanted that."

Goodwin said he hopes his efforts will result in a ripple effect of safety awareness.

"It's our hope that with Alpha being the size that it is, that this will encourage … all coal companies industry wide to follow through these efforts," Goodwin said. "It's not my place to say what a regulatory agency or Congress should do or any of the various state governments should do."

Goodwin added that based on information that has come from the investigation, "these measures we are requiring of Alpha have a real chance … in making sure another UBB doesn't happen."

The settlement requires safety equipment above and beyond compliance federal mine regulations. One aspect of the safety regulations includes an order to build a safety training facility in Julian. The 96,000-square-foot facility will be staffed with full-time Alpha employees.

"It's not designed to find out what blows up coal mines. We know what blows up coal mines," Goodwin said. "The idea is to employ the technology that is available today in the most efficient and effective manner to save coal miners jobs and lives."

Goodwin said the measures being implemented would save lives "almost immediately."

The cost of the investigation, Goodwin said, could not be readily calculated.

"I have five lawyers dedicated to it in my office," he said. "The FBI at various times have had teams of agents assigned to it. The Department of Labor, OIG, as well as MSHA inspectors have been assigned to it at various times. To go back and calculate all of those man hours and multiply them by their salaries, it would be quite an undertaking to do that. Suffice it to say, it definitely wasn't $200 million. The investment was a good one for the monetary outcome, but more importantly for the justice delivered by this result."

Of course, the investigation is not yet complete. Goodwin's office continues to say there could be individual criminal charges for those involved, and the settlement does not prevent those charges from being brought. The agreement also does not prevent families from exercising civil litigation rights and seeking an amount in addition to the $1.5 million each provided in the agreement.

"We didn't want to get into that," Goodwin said of setting civil litigation awards. "It's not our expertise, nor is it our place."

In a release of documents Tuesday, the Mine Safety and Health Administration said it released all the transcripts of UBB investigation interviews except those which were asked to be held by prosecutors. Goodwin said his office holds "not many more than 10 or a dozen" of the hundreds of interview transcripts.

Of the interviews missing from the transcripts released, one notable omission was the transcript of the interview with Bob Hardman, the MSHA district manager who took charge of the rescue effort. Hardman's interview has been cited in MSHA's report as well as in the independent investigation led by Davitt McAteer, but was not part of the release.

"We asked MSHA to hold back just a very few transcripts," Goodwin said. "Ordinarily the purpose of that is so that we can have the opportunity to examine them, have the opportunity to look through them. I wouldn't take a big cue or clue from which one we asked to be held back. Oftentimes, it's because some of these individuals will ultimately be our witnesses down the road."