USA: Widows and children seeks justice for Farmington mine disaster

Consol Energy was sold to Murray Energy in 2013

Almost 50 years later, lawsuit seeks to fix blame for Farmington mine disaster

Len Boselovic

Pittsburgh Post-Gazette - http://www.post-gazette.com/powersource/policy-powersource/2016/09/01/Lawsuit-seeks-to-fix-blame-for-Farmington-mine-disaster-1/stories/201609010159

September 1, 2016

Forty-eight years after explosions ripped through Consolidation Coal’s No. 9 mine in Farmington, W.Va., and killed 78 miners, the widows and children of the victims are seeking the justice that they believe an incomplete investigation of the disaster denied them.

Their hopes are pinned on evidence, documented in papers their attorneys filed in court, that one or more Consolidation employees disabled an alarm that could have alerted the miners to evacuate before the first deadly explosion occurred around 5:30 a.m. on Nov. 20, 1968.

In the early years after the tragedy, widows and families of the doomed miners each would get $10,000 from the coal company. Seven widows whose husbands were buried in the mine didn’t think that was enough. They sued and settled 14 years later for 246 woody, hilly acres of land above No. 9.

But premonitions of disaster that some of the victims and their coworkers spoke of in the days before the explosion caused hard feelings toward Consolidation to fester after the lawsuits were resolved. An abbreviated report of the federal government’s investigation issued more than 20 years later left many in the coal mining town disturbed by the small price the company paid for what happened at No. 9.

Their anger reignited in 2011, when former West Virginia University journalism professor Bonnie Stewart documented what many widows and their families had speculated about over the years.

What most caught their eye was a memo that federal mine inspector Larry Layne wrote two years after the disaster. In it, Mr. Layne notified his superiors that an unidentified Consolidation electrician told him that an alarm that was supposed to be connected to a fan pushing dangerous methane gas out of the mine had been disabled. [http://www.post-gazette.com/.media/2/2016/08/31/d1edaf3d-e88b-4a4e-aae0-d3956574fe20.pdf]

If the fan stopped, the alarm would shut off power to the mine within minutes, alerting miners to evacuate.

Of all the evidence that was disregarded or overlooked by state and federal investigators only to be documented four decades later by Ms. Stewart, Mr. Layne’s memo about the disabled alarm was the most disturbing.

“We didn’t even know that had been done until she wrote the book. She found out about everything,” said Ella Frances Sopuch, the 83-year-old widow of mechanic John Sopuch, one of 19 miners whose bodies were never recovered.

“Every time I pick up the book to read it, I get mad,” Mrs. Sopuch said.

Debbie Boyce was 10 when her father, rock duster Arthur Anderson Jr., was buried in No. 9, leaving her mom a widow with seven children.

“I can’t believe they covered it all up,” said Mrs. Boyce, now 58. “You find out that these guys rigged the fan. You find out that [regulators] knew about it and did nothing.”

Explosions and contaminated air

At the time of the 1968 explosion, Consolidation was owned by Continental Oil. The company later changed its name to Consol Energy, which sold five of its mines and its transportation division to Murray Energy in 2013. With the purchase, Murray took on liabilities from the former Consolidation operations, including No. 9.

Ms. Boyce recalls that in the days before the explosion, her father told her mother that Consolidation would not give him rock dust, pulverized limestone and other inert materials used to prevent coal dust from fueling underground explosions. Ms. Stewart reported that other miners and their families had similar complaints prior to the explosion. No. 9 had a long history of methane gas buildups and other hazardous conditions that led to a series of accidents, including a 1954 explosion that killed 16 people.

“I think they need to be brought to justice,” Mrs. Boyce said. “One day, justice will be served on them and if the court system doesn’t want to do it, then God Almighty will.”

The drama at No. 9 continued for days after 21 of the 99 miners who were working at the time of the initial explosion either escaped on their own or were rescued.

News media from around the nation migrated to the small community. Underground explosions continued in the days that followed, diminishing hopes for rescuing the 78 miners trapped inside.

Analysis of air samples taken inside the mine, where fires continued to rage, led rescuers to believe anyone still trapped inside could not have survived. Faced with the possibility of more explosions, Consolidation halted rescue efforts. On Nov. 30, 1968, the company sealed the mine to extinguish the fires.

Recovery efforts resumed the following year. Eventually, the bodies of 59 miners were found and brought out of the mine. Those efforts ended in November 1978 when Consolidation concluded that the search could no longer be conducted “safely, reasonably, feasibly and practically.” The bodies of Mrs. Sopuch’s husband and 18 other miners were still trapped inside.

The 78 men who died at No. 9 accounted for 25 percent of the 311 coal miners who died in 1968, according to U.S. Labor Department statistics. Since then, no single mine disaster has come close to claiming as many victims. Two years after Farmington, 38 miners died in an explosion at Finley Coal mines in Hyden, Ky. The next biggest coal mining disaster was at West Virginia’s Upper Big Branch mine in 2010, when 29 perished.

Former Assistant Secretary of Labor for Mine Safety and Health J. Davitt McAteer, who was asked by then-West Virginia Gov. Joe Manchin to investigate the Upper Big Branch Mine blast six years ago, said there were similarities between that explosion and what happened at No. 9.

“In terms of force of destruction, they were similar. It was just amazing how much energy tore through those places,” Mr. McAteer said.

A disabled alarm

Spurred by Ms. Stewart’s book, widows and other family members of the 78 miners and their lawyers identified Alex Kovarbasich, a former Consolidation employee who died in 1992, as the one they believe is responsible for disabling the fan’s alarm.

In November 2014, they sued the estate of Mr. Kovarbasich, known as Alex Kovar in the mining community, and Consolidation for wrongful death, alleging that the defendants committed fraud and concealed or failed to disclose vital information about why the explosion occurred.

They are seeking $110,000 for each victim’s family, as well as punitive damages and interest.

Since then, the wheels of justice haven’t turned fast enough for Mrs. Sopuch and Mrs. Boyce. The lawsuit, originally filed in Marion County Circuit Court, was transferred to federal court in Clarksburg, W.Va.

Proceedings in the federal case were put on hold after Consolidation contested the opening of Mr. Kovarbasich’s estate in state court and won. That decision is being appealed to the Supreme Court of West Virginia, which is expected to issue an opinion later this year.

Meanwhile, a federal magistrate in Clarksburg ruled last year that the main lawsuit couldn’t be amended to add another former Consolidation employee, Leonard Sacchetti, 90, as a defendant.

Mr. Layne, the mine inspector whose 1970 memo about the disabled alarm was ignored, had identified Mr. Sacchetti as the employee who told him that Mr. Kovarbasich had disabled the alarm prior to the explosion. Mr. Layne, who court records indicate retired in 1992 and is in his 80s, said it was his understanding that Consolidation told Mr. Kovarbasich to disconnect the alarm.

“Prior to April 3, 2015, I never told anyone that Mr. Sacchetti told me on Sept. 15, 1970, that he and Alex Kovarbasich disconnected the FEMCO alarm,” Mr. Layne said in an April 30, 2015 affidavit filed with the court by attorneys for the miners’ widows and families.

Mr. Layne added that he had visited Mr. Sacchetti at his Fairmont, W.Va., home in 2010.

“At least three times, [he] told me I better ‘be careful’ asking questions about the No. 9 explosion,” Mr. Layne stated in the affidavit.

Mrs. Sopuch and Judith Kuhn, whose husband Paul Henderson was killed in the blast, filed affidavits seven months earlier stating Mr. Sacchetti told them during a June 2014 visit to his home that Mr. Kovarbasich had disabled the alarm.

“He was awful mad when we went over there. He said, ‘Leave it alone. You can’t bring these men back,’” Mrs. Sopuch said.

In a partial transcript of a March 2015 deposition filed with the court, Mr. Sacchetti said he had nothing to do with disabling the alarm and could not recall the visit by the two widows. He said people come to his house and “as soon as they tell me what they are there [for], I say, ‘I can’t help you.’”

“Who is this Larry Layne? I don’t even know Larry Layne,” Mr. Sacchetti said.

Mr. Sacchetti said he did not work at the No. 9 mine in 1970 when Mr. Layne wrote his memo. The transcript and court records indicate Timothy Bailey, a Charleston attorney who represents the families of the victims, showed Mr. Sacchetti company records indicating he worked at the mine from 1969 to 1978.

No one held accountable

Little of this information showed up in the state and federal government investigations of the explosion.

In her book, Ms. Stewart said hearings held shortly after the explosion to determine its cause “were far from neutral.”

Consolidation officials who should have been investigated instead were among those doing the investigating. No objective experts were brought in to weigh the evidence and some miners who were asked to testify didn’t out of fear they would lose their jobs.

“It’s really indicative historically of how coal companies and their managers avoided responsibility by manipulating regulators, to the extent there were any,” said West Virginia University law professor Patrick McGinley, who assisted in West Virginia’s investigation of the Upper Big Branch explosion.

According to Ms. Stewart’s book, state regulators never issued a report on the accident even though they were required to by state law.

She wrote that the federal Mine Safety and Health Administration, which had not been formed at the time of the accident, only issued a report in 1989 after it was pressured by the United Mine Workers union and Mr. McAteer, then executive director of the Occupational Safety and Health Law Center in Washington, D.C.

In her book, “No. 9, the 1968 Farmington Mine Disaster,” Ms. Stewart wrote that hearings after the blast revealed the coal company had violated regulations covering ventilation, controlling coal dust, and other issues.

“Neither the state nor the federal government issued a violation, levied a fine, or took any action against Consol or any of its employees even though conditions in the No. 9 were so bad that 78 men died,” she wrote.

The 1989 federal report said the Farmington investigation could not be completed because the damage was too extensive.

“However, the investigation revealed that the mine power cutoff system was inoperative at the time of the explosion, as well as at several other times prior to the explosion,” the report stated.

The disaster spurred Congress, after hearing testimony from the miner’s widows, to enact the Federal Coal Mine Health and Safety Act a year later.

The law required four annual inspections of underground mines, gave regulators more enforcement powers, required monetary penalties for all violations, and established criminal penalties for violations that are knowing and willful.

That legislation paved the way for the prosecution of former Massey Energy CEO Don Blankenship, who earlier this year began serving a one-year sentence for conspiring to violate federal mine safety laws in connection with the Upper Big Branch disaster.

Waiting for justice

Lawyers for the dead miners’ families did not respond to phone calls seeking comment.

Murray Energy, which took on liabilities for the No. 9 explosion when it purchased Consol’s mines three years ago, had this to say about the lawsuit: “Murray Energy had absolutely nothing to do with the Farmington Mine disaster and ... we will vigorously defend against any such claims. Indeed, Murray Energy did not even exist in 1968, when the accident occurred.”

In court papers, Murray’s attorneys argue the lawsuit should be dismissed because it had to be filed within two years of the 1968 explosion.

The families counter that because Consolidation and Mr. Kovarbasich did not disclose that the fan alarm had been bypassed, the two-year statute of limitations should not start until June 2014, when Mrs. Sopuch and Mrs. Kuhn said Mr. Sacchetti told them Mr. Kovarbasich had disabled the alarm.

After the miners’ families filed a motion requesting to add Mr. Sacchetti as a defendant, U.S. Magistrate John S. Kaull denied the motion last September. The magistrate ruled that, even if he were added, the case against him would likely be dismissed based on the statute of limitations, which the magistrate said went into effect at the time of the explosion in 1968, not in 2014 as the miners’ lawyers are contending.

In the years following the 1968 explosion, the dead miners’ widows and their families agreed to Consolidation’s offer to pay them each $10,000 to compensate them for their loss.

Mrs. Sopuch and six other widows whose husbands’ bodies were never recovered from the mine sued the coal producer in 1978, alleging the company had hidden the cause of the explosion and asking for $1.4 million in punitive damages. The case was settled four years later with each widow getting 35 acres of land above the mine, as well as timber and gas leasing rights. Mrs. Sopuch said the real estate wasn’t worth much except for hunting.

“It’s up one hillside and down another,” she said.

Reports about the disabled alarm makes the dead miners’ families feel something more should be done.

“I want Consol to pay for what they’ve done,” Mrs. Sopuch said. “If they had done what they were supposed to, these 78 men wouldn’t have died.”