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Letter to Eric H. Holder, Jr. Attorney General -

December 16, 2011

The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear Attorney General Holder:

We write to urge the Department of Justice to vigorously pursue the investigation and prosecution of all the individuals responsible for the April 5, 2010, disaster that killed 29 coal miners at Massey Energy Company's Upper Big Branch (UBB) Mine in Montcoal, West Virginia. This was the worst coal mining disaster in our country in more than forty years.

As you know, on December 6, 2011, the Department of Labor's (DOL) Mine Safety and Health Administration (MSHA) released its final investigation report detailing flagrant violations of federal law, which resulted in the catastrophic explosion that ripped through the UBB mine killing 29 miners and changing the lives of their surviving families and loved ones forever. This tragedy was completely preventable had the managers and senior executive responsible for this mine complied with the requirements of the Mine Act and its regulations. They did not.

According to MSHA's Report of Investigation, there were "multiple examples of systemic, intentional, and aggressive efforts by Massey [and its subsidiary Performance Coal Company] to avoid compliance with safety and health standards, and to thwart detection of that non-compliance by federal and state regulators." MSHA imposed a record $10.8 million penalties; however, those fines do not hold any of the managers or senior executives of Massey Energy Company, or its subsidiary Performance Coal Company, personally accountable for their actions or inactions that resulted in the miners' deaths.

Also on December 6, your Department announced a non-prosecution agreement with Alpha Natural Resources, which had acquired the assets of Massey Energy earlier this year on June 1, 2011. That agreement forgoes prosecuting Alpha Natural Resources in exchange for restitution, investments in mine safety and research, and payment of civil penalties. However, it does not prevent the Department of Justice from investigating or bringing criminal charges against the individuals responsible for the April 5, 2010 disaster.

The root causes of the explosion, as detailed in the report, include stunningly brazen misconduct and violations of federal law, including:

1) Intimidating miners to prevent MSHA from receiving evidence of safety and health violations and hazards;
2) Providing advanced notice of inspections to hide violations and hazards from federal enforcement personnel; and
3) Keeping two sets of mine examination books: a doctored set for MSHA inspectors to review and a separate "management eyes only" set which recorded the actual mine history. MSHA found that miners were pressured by management not to record hazards in the required mine examination books that are relied upon by MSHA inspectors and miners.

MSHA found that individuals at this Massey mine "allowed hazardous levels of loose coal, coal dust and float coal dust to accumulate,…[failed] to adequately apply rock dust to the mine, …[and failed] to comply with approved ventilation plans and approved roof control plans." Not only did the operators of the Upper Big Branch mine repeatedly violate the Mine Act, their "practices and procedures encouraged non-compliance."

Individuals, alone or in concert, established these deadly practices and procedures. Individuals, alone or in concert, implemented and enforced these deadly practices and procedures. Though these individuals stood at the head of this disaster, they have thus far escaped justice.

We note that a number of former Massey executives, officers and managers have not fully accounted for their actions or lack thereof as part of MSHA's investigation. However, the 18 officers and non-employee directors of Massey, as well as its former Chief Executive Officer, Don Blankenship, were entitled to an estimated $196 million from 2010 through the consummation of the merger with Alpha. This payout dwarfs the $46.5 million in civil restitution provided for survivors under the non-prosecution agreement.

While we acknowledge that the criminal provisions of the Mine Act are limited and Congress needs to enact reforms to strengthen them, it is imperative that the Justice Department make use of all available legal authorities at its disposal to deter a model of business operations that puts profits ahead of miners' safety.

Going forward, we view the December 6, 2011, agreement as the beginning of the Department's efforts to go up Massey's chain of command as far as possible, consistent with the evidence, and hold those individuals accountable for the needless deaths of these 29 coal miners. The lives of those affected will never be made whole, but you can continue investigating to ensure that those who acted criminally are prosecuted to the full extent of the law.



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