9:48am

Wed April 20, 2011
The Two-Way

Mine Co. Gives Families Of West Virginia Victims Deadline For Settlements

The families of the 29 victims of last year's Upper Big Branch mine explosion now have until June 1 to accept $3 million settlement offers from mine owner Massey Energy.

That deadline is imposed in letters sent last week to some of the victims' families and their attorneys. The letters arrived a week after the families marked the first anniversary of the disaster with somber memorial services and outpourings of grief.

In a letter obtained by NPR, a Massey corporate counsel refers to the pending takeover of his company by Alpha Natural Resources. Alpha and Massey shareholders are scheduled to vote on the merger on June 1.

"Massey does not know and cannot predict what approach Alpha will take with respect to settlement after the proposed transaction occurs," the letter says.

"In light of the significant amount of time that the current offers have been outstanding," the letter adds, "Massey feels that it is best to bring its settlement efforts toward closure."

The Massey letter then makes the bottom line clear. "Accordingly, the outstanding $3 million settlement offer to your client will expire if not accepted by the close of business on June 1, 2011."

NPR first reported the existence of the $3 million settlement offers a year ago this week.

A June 1 deadline comes before the federal Mine Safety and Health Administration (MSHA) issues a preliminary report on the cause of the explosion. MSHA has said it will discuss its findings in a June 29 public meeting in West Virginia.

An independent investigative team appointed by former West Virginia Gov. Joe Manchin (D) is expected to issue its final report on the disaster before June 1. Manchin is now one of the state's U.S. senators.

Massey's timing is suspicious to attorney Warren Randolph McGraw II, because the MSHA report is one "that most everyone expects will be hyper critical of Massey's conduct." McGraw is a lawyer in Beckley, W. Va., who has filed a wrongful death suit against Massey on behalf of the widow of Kenneth Chapman, one of the 29 mineworkers killed in the Upper Big Branch explosion.

"Massey is attempting to shield itself and its bosses from punitive damages for the deaths of twenty-nine good men," say attorneys Rachel and Mark Moreland, whose law firm represents two families who filed the first Upper Big Branch wrongful death suits.

The Morelands also represent the interests of coal miners in the joint state and federal investigation into the cause of the disaster.

"Our efforts have absolutely nothing to do with the planned June 29th MSHA report," says Shane Harvey, Massey's vice president and general counsel. "Our offers have not changed with any of MSHA's interim findings and the fact that MSHA will publish a final report has no bearing on our longstanding desire to reach an amicable resolution with the families." [Harvey's complete statement and responses to questions from NPR are below.]

Harvey also says there is no arrangement with Alpha about how the Upper Big Branch families will be treated after a takeover. "We have no agreement with them," Harvey adds.

Alpha spokesman Ted Pile agrees, saying "the decision that Massey made to let [the settlement offers] expire was their decision alone."

Pile also says Alpha has not approached the families.

"We are sensitive to the heartache and trauma that these families have been through and we do not believe commenting on our plans in the media, without first speaking with the families, is at all appropriate," Pile adds. [Pile's complete statement is below.]

Harvey says a firm deadline benefits the families and Massey.

"As time goes on," Harvey says, "the parties spend more time and resources on litigation, rather than resolution, to the benefit of no one."

Massey Energy has reported settlement agreements with seven families. Nine others have filed lawsuits. A survivor of the explosion has also filed suit.

A federal criminal investigation is also underway. A Massey foreman has already pleaded guilty to charges unrelated to the explosion. And a company security director has been indicted on charges he lied to federal investigators and attempted to dispose of evidence.

The companies' responses to NPR follow. Click on the titles of the boxes to enlarge the documents:

[Howard Berkes covers rural affairs for NPR and has been reporting about "Mine Safety in America."] Copyright 2011 National Public Radio. To see more, visit http://www.npr.org/.