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Four years after nine coal miners and mine rescuers died underground in the Crandall Canyon mine in Utah, federal prosecutors say they're still not ready to file criminal charges or to conclude that no charges are warranted.
In response to an NPR inquiry, spokeswoman Melodie Rydalch of the Utah U.S. Attorney's Office says, "Our investigation is ongoing. This week, we will ask MSHA [the Mine Safety and Health Administration] for what we anticipate will be the final extension of the stay of MSHA's administrative cases."
That's a reference to a three-year delay in civil citations and fines levied by MSHA after the agency completed its investigation of two mine collapses at Crandall Canyon in August 2007.
A year later, MSHA referred its findings to the U.S. Attorney for Utah "for possible criminal charges."
At the time, acting assistant labor secretary Richard Stickler said "MSHA determined that the operator and its engineering consultants demonstrated reckless disregard for safety."
Rep. George Miller (D-CA), the chairman of the House Labor Committee at the time, also sought a federal criminal investigation.
Crandall Canyon owner Murray Energy has $1.34 million in civil fines pending. Consultant Agapito Associates was fined $220,000. Both companies were also issued safety citations and orders. But final action on all of that has been on hold, at the U.S. attorney's request, pending the completion of the criminal investigation.
"Lengthy civil and criminal investigations mean that justice — conviction or acquittal — is delayed and the deterrent effect of successful enforcement is diminished," says Ed Clair, the former senior MSHA attorney who handled the case.
Rigorous enforcement of mine safety laws has been an issue in the ongoing investigations of last year's explosion at Massey Energy's Upper Big Branch coal mine in West Virginia. Twenty-nine mine workers died in that incident, and an independent investigation concluded that Massey failed to put safety before profits and production. The independent investigative team also concluded that MSHA failed to use its toughest enforcement tools at the mine before the explosion.
"It's just unfortunate that there hasn't been more of a sense of urgency to the [Crandall Canyon] case," says Davitt McAteer, a former federal mine safety chief who led the independent investigation of the Upper Big Branch incident.
"Justice delayed is justice denied," McAteer adds, noting that the delay in the conclusion of the criminal case "impedes the civil proceeding. If you languish in both those areas, nobody gains."
Rydalch of the Utah U.S. Attorney's Office acknowledges the criminal "referrals from various sources following the Crandall Canyon mine disaster." But, she says, "we must conduct an independent investigation to determine whether there is evidence to support any criminal charges."
Clair adds that "four to five years is a long time to wait for the victims' families who want to know who was at fault and for mine operators who want to get out from under a cloud of accusation."
But attorney Edward Havas, who represents the families and estates of three Crandall Canyon victims, says a thorough investigation is more important than a quick one, despite the frustration and concern a lengthy investigation generates.
"Ideally the process would take less time," Havas says. But, "it is more important that it be done well than that it be done quickly. Our clients are concerned that those truly responsible for this avoidable disaster be called to account."
Rob Murray, a Murray Energy executive and spokesman, says his company has no comment. In the past, the company has asserted that it "truly believed the mine was safe. ... This tragedy could not be averted."
A spokesman for MSHA says he is seeking comment from agency officials.
Clair says there is still a little more than a year before the statute of limitations would block criminal charges. But he is worried about the time that has passed.
"Time takes a toll on witnesses' memories, and that will make prosecution more difficult, assuming charges are eventually brought," Clair explains.
In February 2009, then-U.S. Attorney Brett Tolman spoke at length about the case in an interview with Paul Foy of The Associated Press. Foy asked then why the investigation was taking so long.
"At what point does greed become criminal behavior?" Tolman answered. "It's a tough decision but one we're very prepared to make."
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