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Federal prosecutors in West Virginia stepped higher up the corporate ladder at Massey Energy Wednesday with new criminal charges stemming from the investigation of the 2010 coal mine explosion that killed 29 workers.
David C. Hughart was president of Massey's Green Valley Resource Group, a major coal mining subsidiary based in Leivasy, W. Va., from 2000 to 2010.
He has agreed to plead guilty to the charges and is cooperating with the investigation, U.S. Attorney Booth Goodwin announced this morning.
Hughart is now charged in a federal "criminal information" with two counts of conspiracy. Neither count is directly tied to the explosion two years ago at Massey's Upper Big Branch mine. But the charges target the corporate culture that allegedly led to the nation's worst mine disaster in 40 years.
Prosecutors say Hughart conspired with other unnamed Massey officials to thwart surprise inspections by the Mine Safety and Health Administration (MSHA). Hughart is accused of authorizing and facilitating advance warnings to miners underground when MSHA inspectors arrived unannounced at several Massey mines.
The charging document says the advance warnings caused "the concealing and covering up of violations of mine safety and health laws that otherwise would result in citations and orders" that could have slowed or halted coal production.
The alleged inspection dodge kept inspectors from discovering inadequate use of ventilation control devices and failure to control explosive methane gas and coal dust.
Inadequate ventilation, uncontrolled methane gas and excessive coal dust were major factors in the Upper Big Branch explosion.
Hughart is also charged with conspiracy to violate mandatory health and safety standards that are designed to prevent mine explosions and minimize exposure to the coal mine dust that causes the deadly respiratory disease known as black lung.
"Mine safety and health laws were routinely violated" at mines managed by Hughart "and other coal mines owned by Massey," according to the charging document.
Hughart and Massey believed that "consistently following those laws would decrease coal production," the document adds.
The alleged conspiracy kept the company from being exposed to possible fines, criminal penalties, and "patterns of violation" status, which would have triggered more regulatory scrutiny.
Prosecutors typically file charges using a "criminal information" document when the defendant has accepted a plea agreement and is a cooperating witness.
Hughart's role in the company put him in regular contact with higher-level executives, including former CEO Don Blankenship, former chief operating officer Chris Adkins and former safety chief Elizabeth Chamberlin.
A lower level Massey official pleaded guilty in March to similar charges involving advance warning of inspections. Gary May was a foreman at the Upper Big Branch mine and his sentencing has been postponed as he continues to work with prosecutors.
The broader conspiracy charge against Hughart is a novel approach and indicates an attempt to test possible criminal charges against more senior officials. Mining company executives are rarely charged when miners die in accidents.
The broader charge also sends signals to former Massey executives higher up the corporate chain. It shows that prosecutors are willing to be creative as they consider more criminal charges.
Massey Energy was absorbed by Alpha Natural Resources last year. In December, Alpha agreed to pay nearly $210 million for fines, victims' compensation and industry safety programs. The agreement kept the company from facing corporate criminal charges for the Upper Big Branch disaster but did not preclude prosecution of individual Massey officials.
Update at 12:30 p.m. ET. More About Hughart:
Reporting by Ken Ward Jr. in The Charleston Gazette includes more background on Hughart.
Ward writes that documents unsealed in a court action jointly launched by The Gazette and NPR show that Hughart was fired by Massey in March 2010, just a few weeks before the Upper Big Branch explosion.
The internal company documents allege that Hughart failed a drug test, "seemed to be having financial difficulty," hired and promoted his son to an $89,000 a year job, gave his son use of a company truck and received kickbacks from a contractor.
Ward also recounts an earlier MSHA investigation of the Massey subsidiary Hughart managed. "They found that mine officials were not conducting pre-shift safety examinations, but were filling out paperwork as if they had done so," Ward reports.
Federal and independent investigators reported the same behavior at the Upper Big Branch mine before the massive explosion there.
Hughart is also named in a ruling by the National Labor Relations Board citing Massey for violating federal labor law when the company refused to rehire union workers when the company bought union mines.
Ward also notes that "public records indicate Hughart worked for Massey for more than 20 years, holding executive positions for more than a dozen different subsidiaries."
Former CEO Don Blankenship was known for micro-managing the company's mines and subsidiaries. Documents obtained by NPR and others disclosed in the Upper Big Branch investigation show that Blankenship kept careful track of each mine's coal production and any delays.
Hughart's management responsibilities at the company and Blankenship's tight management style indicate that Hughart might have valuable information for prosecutors. But the problems laid out in the internal Massey documents may give defense attorneys room to challenge Hughart's credibility during a trial.
U.S. Attorney Booth Goodwin acknowledges that potential problem but tells NPR "we're never going to go to court with just one witness to this activity."
Goodwin also says Hughart's role at Massey was significant. "He is very possibly the highest-ranking coal executive ever charged in an investigation of this nature," he adds.
Update at 11:15 a.m. ET. The Court Document And A Comment From The U.S. Attorney:
We've put the court filing online. Also, in a statement sent to reporters Goodwin had this to say: "Miners deserve a safe place to earn a living. Some mine officials, unfortunately, seem to believe health and safety laws are optional. That attitude has no place in the mining industry or any industry. Today's charges reinforce that urgent message."