Jul 21 - McClatchy-Tribune Regional News - Ken Ward Jr. The Charleston Gazette, W.Va.



Three foremen from Massey Energy's Aracoma Alma No. 1 Mine admitted Tuesday that they not only failed to conduct required mine evacuation drills, but also faked official record book entries that would cover up their crimes.

Foremen Edward R. Ellis Jr., 38, of Justice, Donald R. Hagy Jr., 47, of Gilbert, and Michael A. Plumley, 38, of Delbarton all pleaded guilty before U.S. District Judge John T. Copenhaver Jr. to not conducting the mandated escapeway drills at the Logan County underground mine.

A fourth foreman, Terry L. Shadd, 37, of Chapmanville, also pleaded guilty to not conducting required emergency drills, but did not admit to faking the record book.

 Each of the four was charged with one misdemeanor mine safety count of not performing the required drills, an offense that carries a potential sentence of up to one year in jail and a $100,000 fine.

During a plea hearing, Ellis, Hagy and Plumley all told Copenhaver that they also signed a mine evacuation record book, falsely indicating that they had conducted the escapeway drills that they skipped. Under federal mine safety laws, such falsifying of records is a felony that carries a potential penalty of up to five years in jail and a $250,000 fine.

Assistant U.S. Attorney Hunter Smith told Copenhaver that Shadd had not faked a record book entry during the period covered by his charging document, from May 2005 through July 2005.

After the hearing, Smith declined to say whether Shadd had faked a record book entry during some other period of time. Smith also declined to comment on why the three other foremen weren't charged with the more serious violation.

A lawyer for the families of two miners killed in a January 2006 fire at the Aracoma Mine criticized the decision to not charge the foremen with felonies.

"The government should have made the appropriate charge," said Bruce Stanley, a lawyer for the families of miners Don Bragg and Ellery Hatfield.

"By the same token, surely no one can seriously believe that upper management at Aracoma was not acutely aware of the criminal conditions of the mine," said Stanley, who attended Tuesday's hearing with widow Delorice Bragg. "Yet only two widows and a few lowly foremen have been asked to foot any of the human cost of production over safety. Something is sorely wrong with this picture.

The Bragg and Hatfield families previously objected to a plea deal through which Massey subsidiary Aracoma Coal Co. paid $2.5 million in criminal fines, but government lawyers agreed they would not prosecute anyone from the Massey parent company.

Along with the Aracoma subsidiary, another mine foreman, David R. Runyon, previously pleaded guilty to not conducting escapeway drills and was fined $1,000.

During the, 2006, fire, a crew of miners -- supervised by Plumley -- ran into thick, black smoke in their primary escapeway tunnel and had to try to find another way out of the mine. Two workers, Bragg and Hatfield, became separated from the group, got lost and eventually succumbed to the smoke.

U.S. Mine Safety and Health Administration investigators cited a variety of major safety violations that led to the fire, including "prolonged operation" of a misaligned conveyor belt and allowing large spills of combustible coal dust and grease to build up on the belt.

But criminal charges in the case focused on violations that could have hampered miners trying to evacuate the mine after the fire had started.

Aracoma Coal's 10-count plea deal included a misdemeanor -- failing to replace a ventilation wall that could have kept smoke out of the escapeway -- that prosecutors said, "resulted in the deaths" of Hatfield and Bragg.

But so far, prosecutors have not directly linked any of the foremen's crimes to the fatal fire. Court records show that Hagy and Shadd failed to conduct evacuation drills during the period from May 2005 to July 2005, while the period covered by the charges against Plumley and Ellis ran from October 2005 through Jan. 19, 2006, the day of the fatal fire.

Prosecutors revealed Tuesday that plea deals with Ellis and Plumley were reached more than a year ago, in February and April 2009, respectively. Deals with Hagy and Shadd were reached in May, prosecutors said.

During Tuesday's hearing, Copenhaver quizzed each of the foremen about their behavior, asking for an explanation for why they didn't conduct the escapeway drills.

Hagy said he simply "overlooked it."

Plumley said he performed the part of the drill where miners could ride out of the mine, but did not make his crew complete the evacuation by walking the rest of the way out.

Smith said that records show Plumley signed three false entries in the evacuation record book, one every month from November 2005 through January 2006. One of the false entries identified by Smith was for Jan. 7, 2006. That's the same date of a false evacuation record book entry that prompted the one felony count included in Aracoma Coal Co.'s plea agreement.

Ellis indicated he was pressured by his superiors to falsify the record book.

"They tell you to 'catch up your books' or something like that, [because] 'we've got somebody coming to look at them,'" Ellis told Copenhaver.

U.S. Attorney Booth Goodwin has said charges against the four foremen end his office's investigation of the Aracoma fire.

Sentencing for the four men is scheduled for 1:30 p.m. on Oct. 26.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.

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