The story began simply and sadly, deep under hulking Black Mountain in Eastern Kentucky. In March 1976, two gas explosions killed 26 men in one of the country's most dangerous coal mines.
Since that beginning four years ago this week, the Scotia Coal Co. disaster at Oven Fork has become a twisted Gothic tale, little related to the mining of coal.
It is now a story about lawyers and judges and big money, a stubborn corporation, laws and regulators and, most of all, justice denied -- or at least slow in coming.
The company has paid no penalties. The miners' widows still await the trial of their damage claims. The government has not fully implemented new safety laws passed after the disaster. Lawyers have produced a swarm of suits and countersuits that have clogged the courts. Prosecutors move at snail's pace.
Scotia, meanwhile, has resumed operations at the mine. It is as though Appalachian history is repeating itself -- the coal comes first, miners and the widows last.
Harry M. Caudill, the laureate writer of the region, has seen enough of these things to be terse and bitter.
"The Scotia situation reflects the complete inability of the United States to challenge culpable conduct," he said last week. "If I go out and run over someone with my car, I will be prosecuted, as I should be. If I negligently blow up a coal mine, nothing will be done."
But coal continues to be trumpeted by President Carter and coal-state legislators as the solution to national energy and economic problems. If the price of foreign oil is prohibitive, coal carries a monstrous human and environmental cost as it is regulated today.
Mining deaths and disabling injuries, slowed during the mid-1970s, are steadily rising again: 144 killed and 18,000 disabled in 1979. Carter's coal commission last week predicted 200 deaths and 25,000 disabling injuries annually by 1985 at present rates.
This is the Scotia scorecard after four years:
Scotia and its parent, the Blue Diamond Coal Co. of Knoxville, Tenn., have yet to pay a cent in fines for the 72 health and safety violations found at their mine.
Widows of the 15 Scotia miners killed in the first explosion on March 9, 1976 still await a full hearing of their $60 million damage suit against the company.
At least a dozen separate legal actions in state, federal and administrative courts, all related to the events at Scotia, have turned the case into a carnival for lawyers. An influential former Kentucky governor and federal judge, Bert T. Combs, heads the Blue Diamond legal team.
U.S. District Court Judge H. David Hermansdorfer, who has substantial financial holdings in the Kentucky coal industry, continues to preside over a motion-stalled criminal case against the company, although he removed himself from the negligence case filed on behalf of the widows.
While the lawyers argue, the Scotia mine is operating again, moving small amounts of coal in preparation for full-scale mining with the same supervisory staff that ran the mine when it blew up in 1976. Even with a federal inspector there full time, the mine has problems. The inspector shut it down briefly last fall for safety violations.
The Department of Justice took more than three years to bring a criminal indictment against the company -- naming no individuals -- for violations related to the disaster. The department has not challenged Hermansdorfer over his coal holdings, nor is it fighting his suppression of a Labor Department investigatory report on the explosions.
The Justice Department also is defending the government against the company and the widows who allege in other suits that federal officials were responsible for a second explosion on March 11 that killed 11 more men.
Congress acted quickly after the disaster. It tightened the mine-safety law to deal with problems that showed up at Scotia. But there has been little, if any, congressional oversight of the new federal Mine Safety and Health Administration (MSHA) and no congressional pressure on the Justice Department for quick prosecution of the criminal case.
"It is a regrettable situation," said Rep. Carl D. Perkins (D-Ky.), chairman of the House Education and Labor Committee that passed the safety law. "An unreasonable period of time has gone by. The way I read the papers, the cases have been delayed by one motion after another. But I believe justice will be done."
His committee's investigative report in 1976 strongly denounced Scotia for its long and poor safety record, and the mine-safety agency for its role in the second explosion and its failure to get tougher with Scotia before the disaster.
Perkins, in whose district the disaster occurred, is one of the few officials who will comment publicly on the tangled Scotia case.
MSHA and Justice Department officials refuse to answer questions on the ground that the case is in litigation. The widows' attorney, Gerald Stern of Washington, and company lawyer Combs will not discuss it. Blue Diamond will not discuss it.
One who has commented, however, a feisty administrative law judge at the Department of Labor, Joseph B. Kennedy, is in hot water for what both the company and the government contend is his "bias."
They want Kennedy removed from hearing evidence in the civil case that will determine whether Scotia/Blue Diamond pays more or less than or none of the $270,000 in panalties that MSHA has proposed against the company.
Kennedy always blunt and outspoken, apparently is under fire for his legal opinions that have been critical of the slowness of the federal courts in Kentucky and the government's lack of zest in prosecuting Scotia.
He has pressed for several years to force the civil penalty case to a rapid hearing, as the safety law requires. Overruling federal and company insistence that the criminal case should be adjudicated first, the Federal Mine Safety and Health Review Commission last week gave Kennedy the green light to move ahead with the penalty hearings.
If Kennedy decides to remain on the case and if he rules against Scotia, the company can forestall payment of fines for years through appeals procedures.
After the explosions, congressional investigators minced no words over Scotia. "It was a mine which . . . placed production and profit before the safety and health of its miners. It was a mine which essentially ignored the law," the official report said.
Scotia's safety record was called "abominable." Federal inspectors shut it down 110 times between 1970 and 1976. Between 1974 and 1976, they cited it for 420 safety violations. The citations showed a long pattern of ventilation and methane-gas problems of the sort that led to the explosions, yet the federal safety men took no action to force full-scale corrections.
In some ways, that record typified the Appalachian condition. The mine owners lived elsewhere, they had a demonstrable record of winking at laws, and they vigorously fought organizing efforts by the United Mine Workers.
They would, in other words, run their mines as they pleased.
In 1977, Blue Diamond paid the highest water-pollution fine in Kentucky history, $25,000, for releasing poisoned water from another mine near Scotia.
In the early 1970s, Blue Diamond was found guilty of ignoring minimum-wage and safety laws in violation of the Walsh-Healy Public Contracts Act.
But business was good. Between Scotia and its other Kentucky operations, Blue Diamond by 1976 was producing more than 2 million tons of coal a year. Operations were directed from Knoxville by board chairman Gordon Bonnyman, a devout Catholic whose Scottish ancestors set up Blue Diamond decades ago. a
One of the ironies is that Bonnyman now is fighting with the Sisters of Loretto, a small order of activist Catholic nuns in Kentucky. Hoping to push Bonnyman and his company to greater corporate responsibility, the nuns several years ago bought 81 shares of Blue Diamond stock.
They have sued in state court to attain status as "shareholders of record," which would give them the right to attend meetings, receive the names of other shareholders and influence company policy.
Blue Diamond is resisting, saying the nuns have "unclean hands," that they bought their stock not simply for economic reasons but also so they could have an impact on the way the company is run.
Harry Caudill is unsparing on this subject.
"There is no civilized society that would want a company like Blue Diamond in its midst," he said. "But this state is governed by governors and legislatures that kowtow to the coal industry."
No contemporary history of coal safety litigation in Central Appalachia is complete without the names of Combs and Hermansdorfer, the attorney and the judge.
Combs, a reputed liberal Democrat from Eastern Kentucky, served a term as governor and then was on the U.S. Court of Appeals for the 6th Circuit until returning to private practice in 1970. He still is addressed as "judge" as he defends Blue Diamond in the courts.
Combs is what one longtime acquaintance calls "the classic Appalachian lawyer -- he wants to make you cry from both eyes. One eye for the pain and the other eye on the merits."
Hermansdorfer, a conservative Republican from Eastern Kentucky, became a federal judge in 1972. Detractors call him "the coal judge," in part because of the results of his first big courtroom meeting with Bert Combs, and in part because many major coal cases have gone through his court.
Combs had successfully defended the Finley brothers, owners of a Kentucky mine that blew up in 1970 and killed 38 miners. The judge was Hermansdorfer. mThere was an uproar in the state, but justice had been done.
There was more controversy when the first Scotia widows' case went before Hermansdorfer. He held that they did not have standing to sue -- a decision quickly overruled on appeal. After the reversal, Hermansdorfer stepped down. qA pretrial conference is set for this week under a new judge.
Throughout the Scotia tangle, a side issue has been Hermansdorfer's outside income from coal holdings. In an area as heavily underlain with coal as Eastern Kentucky, land ownership almost assures coal ownership. But the judge has fueled speculation about his coal interest by refusing to talk about it.
Hermansdorfer said at one point that his coal income had been $1,700 during one year. But those earnings apparently mushroomed later, for he quoted a much higher figure to a review committee considering him for an appeals court vacancy.
The committee questioned Hermansdorfer at length, in secret, about his holdings, then finally chose another nominee for the vacancy. Several committee members told The Washington Post that the judge's holdings had raised serious concerns about potential conflict of interest.
Although he stepped down as judge in the widows' case. Hermansdorfer retains jurisdiction over the criminal case against Blue Diamond. The government has raised no questions about his holdings and Justice Department officials refuse to answer questions about the matter. Hermansdorfer last week declined to answer inquiries about the case or his income.
One of the young prosecutors assigned by the Justice Department to the Scotia case was given a book by a fellow attorney as "must" background on coal and Appalachia. It was "Night Comes to the Cumberland," a modern classic written by Harry Caudill when he lived a few miles down the road from the Scotia mine in Letcher County.
Caudill is an attorney, a former state legislator, a writer and lecturer. Today he teaches at the University of Kentucky, where he discourses on systems that have failed.
"Central Appalachia is the last territory in the world where a man can be elected by vowing to be subservient to his colonial overlord, the coal industry," he said. "Even West Virginia, as benighted as it is, has begun to shake off the shackles of coal. But Kentucky remains the same, under the dominion of coal.
"In Europe, the mere occurrence of a Scotia would have triggered criminal indictments," Caudill said. "Here, nobody is indicted, fined or fired. It is shoot, slaughter and slay -- and go free."