Massey directors did little to improve safety, documents indicate

CHARLESTON, W.Va. -- Despite an alarming increase in safety violations at Massey Energy's Upper Big Branch Mine, the company's board of directors took no focused steps to improve performance at the operation prior to the April 2010 explosion that killed 29 miners.

That's what at least one top Massey executive, Baxter Phillips, said during a previously confidential legal deposition made public Wednesday night.

"It was not singled out ... " testified Phillips, a longtime Massey official who took over as CEO when Don Blankenship retired last December.

Phillips said that board members, despite a legal settlement promising to improve safety oversight, took no steps to make sure rank-and-file miners felt free to report safety problems.

In his testimony, Phillips argued that there was a "disconnect between violations and safety" and downplayed federal enforcement actions as involving little more than "paperwork" or "the location of a toolbox."

Detailed testimony from Phillips, Blankenship and Massey board chairman Bobby Inman was made public by Kanawha Circuit Judge Charles King on Wednesday in response to a legal motion filed by The Charleston Gazette and NPR.

King ordered unsealed more than 5,300 pages of records filed as part of an effort by some Massey shareholder groups to block Alpha Natural Resources' buyout of Massey.

King agreed to a request by Massey lawyer Al Emch that the judge privately review about 120 other pages of records that the company wants to keep confidential.

Among the documents being examined by the judge is a transcript of the deposition of Massey vice president of operations Chris Adkins, whose role in overseeing the Upper Big Branch Mine has been in the spotlight. Alpha officials on Wednesday said that Adkins would not join Alpha, despite an initial announcement that he would be part of the merged company.

Emch said that Massey had no objection to the unsealing of the bulk of roughly 5,500 pages of court records that were initially sealed by court officials.

The court action came as Alpha Natural Resources was finalizing its $8.5 billion buyout of Massey and trying to distance itself from the Upper Big Branch Mine Disaster and other aspects of  Massey's troubled record.

Only a few hundreds of the thousands of pages of records had actually been released by Wednesday night. Massey lawyers were still removing some personal information -- such as home phone numbers and Social Security numbers -- from the depositions, and the court clerks were waiting for a written order from King before unsealing the other documents.

The Gazette and NPR had filed a joint motion to unseal the records, which contain more details about the mine disaster and events leading up to the Alpha-Massey transaction.

Some documents already made public in that case, and in a related case in Delaware, have revealed serious concerns by Alpha officials about Massey's safety practices and corporate culture, questions about the merger, and warnings issued directly to Massey's board about safety problems at Upper Big Branch prior to the disaster.

So far, though, only legal briefs filed by the two sides have been made public. Underlying evidence, such as deposition transcripts and corporate records, have not been released, making it difficult to get a complete picture of the events described.

In a related case, Kanawha Circuit Judge James Stucky on Wednesday morning signed an order sealing all records concerning an effort by Massey shareholders to have a collection of company executives and board members held in contempt of court.

That case involves a court settlement, reached after the deaths of two miners in the January 2006 Aracoma Mine fire, in which Massey managers agreed to more closely police the company's safety practices to ensure better compliance with federal regulations.

Badge<co > Humphries, a lawyer for Massey shareholders in both cases, said the petition filed with Stucky included documents obtained during discovery under a confidentiality agreement signed by both Massey and the shareholder groups who filed the suit.

But in a brief filed for the Gazette and NPR with King, Charleston lawyer Sean McGinley argued that the two sides in a lawsuit couldn't on their own decide which records in the case are public and which are not.

West Virginia's Constitution mandates open court records, as does the First Amendment of the U.S. Constitution, McGinley said. Records can be sealed only in very limited circumstances that don't exist in the Massey cases, he said.

"It is unsurprising the parties to this case 'endorse' the secrecy orders; they likely would prefer to avoid any public scrutiny," McGinley wrote. "Yet this court is not obligated to pander to parties' desires to hide from public scrutiny.

"Massey Energy and its related entities form one of the largest employers in this state. As such, Massey's conduct, the sale or potential sale of the company, the required public disclosure of relevant information concerning the value of the company to shareholders so they can make informed decisions, and the actions of the parties in this case is of great interest and concern both to the citizens of West Virginia, and nationally as well.

"In addition, there is greater cause for public scrutiny of the filings in this matter in light of the April 5, 2010, explosion at Massey's Upper Big Branch Mine," McGinley wrote. "The suspicious circumstances surrounding that tragedy has resulted in numerous lawsuits, including the recently-filed suit alleging that the sale of Massey to Alpha will harm the ability of victims and their families to recover damages. The filings in this case likely will shed new light on Massey's acts and or omissions in relation to this tragedy."

Reach Ken Ward Jr. at or 304-348-1702.

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