Almost level: Study details how mining flattens W.Va.

February 8, 2016 by Ken Ward Jr.

MountaintopMiningSlope

The hillside slope of West Virginia’s Headwaters Twentymile Creek watershed pre- and post-mining, calculated from elevation maps. Photo provided by Duke University.

There’s an important new study out from the folks at Duke University that provides some fascinating new calculations of the impacts of mountaintop removal on West Virginia’s coalfield environment.

Here’s the summary abstract:

Land use impacts are commonly quantified and compared using 2D maps, limiting the scale of their reported impacts to surface area estimates. Yet, nearly all land use involves disturbances below the land surface. Incorporating this third dimension into our estimates of land use impact is especially important when examining the impacts of mining. Mountaintop mining is the most common form of coal mining in the Central Appalachian ecoregion. Previous estimates suggest that active, reclaimed, or abandoned mountaintop mines cover ∼7% of Central Appalachia. While this is double the areal extent of development in the ecoregion (estimated to occupy <3% of the land area), the impacts are far more extensive than areal estimates alone can convey as the impacts of mines extend 10s to 100s of meters below the current land surface. Here, we provide the first estimates for the total volumetric and topographic disturbance associated with mining in an 11 500 km2 region of southern West Virginia. We find that the cutting of ridges and filling of valleys has lowered the median slope of mined landscapes in the region by nearly 10 degrees while increasing their average elevation by 3 m as a result of expansive valley filling. We estimate that in southern West Virginia, more than 6.4km3 of bedrock has been broken apart and deposited into 1544 headwater valley fills. We used NPDES monitoring datatsets available for 91 of these valley fills to explore whether fill characteristics could explain variation in the pH or selenium concentrations reported for streams draining these fills. We found that the volume of overburden in individual valley fills correlates with stream pH and selenium concentration, and suggest that a three-dimensional assessment of mountaintop mining impacts is necessary to predict both the severity and the longevity of the resulting environmental impacts.

In a press release from Duke, lead author Matt Ross said:

There hasn’t been a large-scale assessment of just the simple full topographic impact of mountaintop mining, which occupies more than 10 percent of the land in the region we studied. [We found] the impact is deep and extensive. It is locally large and more wide-ranging than other forms of mining.

Another of the authors, biology professor Emily Bernhardt, explained:

We tend to measure the impact of human activity based on the area it affects on a map, but mountaintop mining is penetrating much more deeply into the earth than other land use in the region like forestry, agriculture or urbanization. The depth of these impacts is changing the way the geology, water, and vegetation interact in fundamental ways that are likely to persist far longer than other forms of land use.

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Head in the snow: Why W.Va. doesn’t move forward

January 26, 2016 by Ken Ward Jr.

Utility trucks head west bound on I64 crossing the St. Albans/Nitro bridge, in St. Albans, W.V., Saturday, Jan. 23, 2016. (Tom Hindman /Charleston Gazette-Mail via AP) MANDATORY CREDIT

Utility trucks head west bound on I64 crossing the St. Albans/Nitro bridge, in St. Albans, W.V., Saturday, Jan. 23, 2016. Photo by Tom Hindman.

When we last left the West Virginia Legislature, this was the sad report from The Associated Press:

phillips_rupertAs the snowstorm approached, a West Virginia delegate handed out sunscreen to his colleagues in an attempt to ridicule global warming.

Democratic Delegate Rupie Phillips passed around the bottles of sunscreen Thursday.

The lawmaker from coal-producing Logan County told his colleagues on the House floor, “I worry about you. You’ve got global warming going on. It’s not cold outside. It’s in your mind.”

Phillips said he was going to get everyone a pair of Maui Jim sunglasses, but they are “a little expensive.”

Seriously?

It’s hard to know where to start with this kind of silly stuff. Do we engage with it, and show the science that indicates, just for example that big blizzards in winter don’t disprove global warming and that climate change can actually make East Coast blizzards worse? Or do we ignore it, and hope it goes away?

The Beckley paper decided to take it on, with a very strong editorial that explained how we ignore science at our own risk:

It is clear Delegate Phillips is ignoring facts. Even the kids know that coal, which leaves a heavy carbon footprint in its wake, is a major contributor to global warming. Coal is a fossil fuel just like natural gas. When it is burned, it releases carbon dioxide into the environment. There, it helps trap heat and moisture in our little dome of life. It’s called the greenhouse effect — a pretty simple concept to grasp for anyone paying attention. And so, it gets hotter here on Earth and we get more extreme weather events. Even the oceans are warming up. It is undeniable. It is science. It has been researched. It is a fact. It is the truth.

But forget all of that. Forget the mountains of research. Forget all of the climate scientists around the world who have poured their intellectual curiosity into their work. According to Phillips, one winter weekend storm was all the evidence we needed.

  Read the rest of this entry »

U.S. records 2nd and 3rd coal deaths of 2016

January 20, 2016 by Ken Ward Jr.

Mine Explosion

My apologies for not following up on this sooner, but here’s the sad news reported out of western Pennsylvania earlier this week:

A West Virginia man is dead after a mining accident in southwestern Pennsylvania.

Officials with the Morgantown, West Virginia-based Mepco say 31-year-old Jeremy Neice was fatally injured Saturday evening near Mount Morris, about 50 miles south of Pittsburgh.

Green County emergency authorities say the Danville, West Virginia, man was in an accident at about 6 p.m.

Mine officials say they have suspended operations at the mine and that federal and state mine safety agencies have been notified. They say the company is “deeply saddened” by Neice’s loss.

The accident comes about six months after the state Department of Environmental Protection cited Mepco for another miner’s death at the same mine.

The U.S. Mine Safety and Health Administration said of the recent incident:

A 31-year-old miner was fatality injured on January 16 when a fall of material pinned the victim to the mine floor. First responders freed the victim who was then transported to the surface area of the mine and traveled by ambulance to Ruby Memorial Hospital.

This is the 2nd U.S. coal-mining death in 2016, according to MSHA’s count.

Updated: There was a 3rd coal-mining death also reported in western Kentucky. It doesn’t appear to have been added to MSHA’ s list yet, but here’s what MSHA has to say at this point:

A 36-year-old miner was fatality injured on Jan.19, 2016, when he became pinned between a continuous mining machine and the coal rib.  The continuous miner operator was transported from the mine to the Baptist Hospital in Madisonville Kentucky where he was pronounced dead.

Obama to continue push for coalfield aid

January 15, 2016 by Ken Ward Jr.

President Barack Obama speaks at a town hall styled event at McKinley Senior High School in Baton Rouge, La., Thursday, Jan. 14, 2016. (AP Photo/Gerald Herbert)

There’s big news coming today about the federal coal-leasing program, with an Interior Department press conference planned later this morning and this report out from The Wall Street Journal:

The Obama administration plans to announce Friday that it is going to change the way the federal government handles coal leases on public lands, the latest step in President Barack Obama’s plan to address climate change, according to a congressional aide.

The administration is also expected to put in place a moratorium on at least some new coal leasing until the Interior Department conducts a broad environmental review, which could include coal mining’s impact on climate change, wildlife and other environmental issues. An Interior Department representative didn’t immediately respond to a request for comment.

As the Journal noted, this is following up on President Obama’s comments earlier this week in his final State of the Union address:

Now we’ve got to accelerate the transition away from dirty energy.  Rather than subsidize the past, we should invest in the future – especially in communities that rely on fossil fuels.  That’s why I’m going to push to change the way we manage our oil and coal resources, so that they better reflect the costs they impose on taxpayers and our planet.

At the same time, the administration is also making clear that it plans to continue a major push to help coalfield communities in Appalachia that are struggling through the industry’s continuing downturn.  White House officials told me this week that the upcoming budget proposal for next financial year would include more funding for the Power Plus Plan.

Readers will recall that last year, President Obama included significant funding in his budget proposal to help coalfield communities, including $1 billion in new spending over five years to clean up abandoned strip mines, additional funding for research on carbon capture technology for power plants, and nearly $4 billion over 10 yeas to protect the health and retirement benefits of retired coal miners.

Congress came through with some money for some of these projects, such as a $90 million pilot project for abandoned mine cleanups, $50 million for the Appalachian Regional Commission, and $15 million to the Economic Development Administration for projects and grants under Power Plus.

While the full budget proposal won’t be public until next month, White House officials say that it will include proposing to continue the additional money for the Appalachian Regional Commission, along with more money for other components of the administration’s coalfield aid plan.

“We expect to come out of the gate pretty strong,” one White House official told me. “We are going to be making this a priority for us.”

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Tomblin: Time to reinvest in W.Va. coalfields

January 13, 2016 by Ken Ward Jr.

State of the StateTonight’s State of the State address from West Virginia Gov. Earl Ray Tomblin contained what were certainly the most straightforward comments from the governor on the state of the state’s coal industry:

… We cannot ignore the unprecedented shift that has taken place in our state and our nation. Forces beyond our control have severely damaged our coal industry, and even the most optimistic among us realize it is unlikely coal will ever reach production levels of the past.

Pretty strong stuff, especially for Governor Tomblin. Right before that, though, he had said this:

Despite the difficult times we find ourselves in, West Virginia remains the fourth largest producer of electricity in the country, and I believe our coal industry will continue to support our families well into the future.

It’s true that the coal industry in West Virginia isn’t going to disappear overnight or anytime soon — but it’s still a problem that political leaders feel they need to balance any talk about the downward spiral with hope that it really won’t be quite all that bad.

The governor went on to say more about coal and about mining communities:

For generations, our miners unearthed the coal used to produce the low-cost energy that fueled this country’s Industrial Revolution – one that remains unmatched anywhere in the world. This nation owes these West Virginians a debt of gratitude and we are ready to cash in on that substantial IOU.

And he outlined several proposals for helping struggling coal communities.

First, there was this:

This fall, we submitted an application to the National Disaster Resilience Competition seeking more than $140 million in funding from the United States Department of Housing and Urban Development. This competition has the potential to help six counties in our southern coalfields adjust, adapt and advance their communities.

If we’re successful, these federal funds will help us rebuild aging infrastructure, promote land use planning and hazard reduction efforts and stimulate housing and economic development in areas outside of the region’s floodplains.

And then there was the big one:

We are also proposing to develop the largest industrial site in West Virginia history at the former Hobet surface mine in Boone and Lincoln counties. With 12,000 acres located just off Corridor G, this site is large enough to fit virtually every major economic development project in recent history – including Toyota, Procter & Gamble, Gestamp,  Macy’s, Amazon and more – with thousands of acres left over.

We know this is a major undertaking, and with the help of local landowners Marshall University, West Virginia University and the Virginia Conservation Legacy Fund,  we are working together to find new uses for this site while mining activity continues.

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Sixty days: The state of our state and the coalfields

January 13, 2016 by Ken Ward Jr.

Tomblin

Photo by Tom Hindman

In a few hours, we’ll hear from Gov. Earl Ray Tomblin about his views on the State of the State and his plans for dealing with a budget deficit and for his final year as governor.

Already, though, the governor and his staff  have done a lot to telegraph a bit of what he may say regarding the coal industry. In an interview with the Gazette-Mail’s Phil Kabler for Sunday’s paper, for example, there was this:

Tomblin hopes a myriad of job training opportunities directed at southern West Virginia, particularly for laid-off miners and their families, will eventually lead to a revitalization of that hard-hit region.

“The mining jobs may not be returning, and you can always go back to that if they do, but it’s good to have a little college training under your belt,” he said. “Coal in southern West Virginia has had highs and lows for years, and it seems to be hit particularly hard this time.”

And then in today’s paper, there was this from communications director Chris Stadelman:

He has some exciting new things, not only in developing our workforce, but in diversifying our economy.

It will obviously be encouraging to hear Governor Tomblin talking more directly and — perhaps, forcefully — about the need to diversify coalfield economies here. But two things remain bothersome about the context in which he’s doing it.

First, there’s this business about how “the mining jobs may not be returning” and how “you can always go back to that if they do”. I’m not aware of any forecasts that suggest any grand resurgence of the coal industry in Southern West Virginia. It’s popular among the industry’s political supporters to suggest all manner of actions by elected officials — and the end of the Obama administration — might make that happen. But Governor Tomblin isn’t doing anybody in the coalfields any favors by tipping his rhetoric even a little bit in that direction.

Second, there’s this idea that’s been reported several times about how the state’s current budget problems were somehow unanticipated. When former Gov. Joe Manchin was winning political points with business leaders by cutting their taxes, there were those who warned this would happen. When forecast after forecast from coal experts projected declining production in Southern West Virginia, there were those who warned this would happen. And even the current low price of natural gas was something that wasn’t entirely unanticipated. State officials knew it was projected to drop — it just dropped even more than they thought.

Maybe the governor’s rhetoric and context will change dramatically tonight. After all, former Sens. Robert C. Byrd and Jay Rockefeller both made strong statements about West Virginia’s relationship to coal and the need to reassess the industry late in their careers. Maybe Governor Tomblin is going to call on his fellow West Virginians to “embrace the future.”

Governor Tomblin, though, faces a Republican-controlled Legislature that is itching for fights with Democrats and unions about worn-out issues like right-to-work and prevailing wage, and even about who should be sitting in the state Senate. Coal industry lobbyists, meanwhile, are considering a push to lower mining taxes.

It doesn’t take a political genius to know that a ton of time over the next 60 days will be spent on political fights that don’t get the state anywhere.

Can West Virginians transition our coalfield economy and transform our state’s bitter politics?

January 13, 2016 by Ken Ward Jr.

President Barack Obama delivers his State of the Union address before a joint session of Congress on Capitol Hill in Washington, Tuesday, Jan. 12, 2016. (AP Photo/Evan Vucci, Pool)

President Barack Obama delivers his State of the Union address before a joint session of Congress on Capitol Hill in Washington, Tuesday, Jan. 12, 2016. (AP Photo/Evan Vucci, Pool)

It seems like a long time ago that if President Obama would deliver a State of the Union address or other major speech that touched on energy there would be at least some vague mention of “clean coal.”

Last night, well … not so much.

Instead, President Obama’s discussion of such things last night in his final State of the Union went something like this:

Seven years ago, we made the single biggest investment in clean energy in our history.  Here are the results.  In fields from Iowa to Texas, wind power is now cheaper than dirtier, conventional power.  On rooftops from Arizona to New York, solar is saving Americans tens of millions of dollars a year on their energy bills, and employs more Americans than coal – in jobs that pay better than average.  We’re taking steps to give homeowners the freedom to generate and store their own energy – something environmentalists and Tea Partiers have teamed up to support.  Meanwhile, we’ve cut our imports of foreign oil by nearly 60 percent, and cut carbon pollution more than any other country on Earth.

Now, I don’t know about this business where solar “employs more Americans than coal.” The numbers touted by folks like The Solar Foundation seem to include a pretty broad brush, whereas the figures for the coal industry are a smaller subset that focuses more strictly on miners — not on things like manufacturing, sales and distribution or “project development.” I’m not sure it’s a completely fair comparison. This has been a popular comparison for the wind industry as well, and I’ve pointed out before how that bothered me as well.

New York Times columnist Paul Krugman dismisses questions about these kinds of comparisons:

… While you might want to quibble with specific numbers, the boom in renewable energy is very real, as are the surging number of jobs in things like solar panel installation. I can’t imagine any calculation under which the number of green jobs added doesn’t exceed the loss in coal mining, which was already a shadow of its former self before Obama took office.

There’s no question that the boom in renewable energy is real. But there is also no question that coal’s downturn is hurting many families in the coalfields and it’s also hammering the budgets of coal-producing states like West Virginia.

Read the rest of this entry »

Industry seeks to stall black lung protections

January 7, 2016 by Ken Ward Jr.

blacklungminer2

The latest news on the black lung issue is this:

Coal companies are asking an appeals court to block implementation of the second phase of the U.S. Mine Safety and Health Administration plan for addressing coal miners’ exposure to respirable dust, the cause of black lung disease.

Parties such as Murray Energy Corp., the National Mining Association, Walter Energy Inc. and the Alabama Coal Association are seeking to block implementation of the remainder of the rule ahead of its Feb. 1 rollout date. The rule was unveiled in April 2014 and aims to lower occurrence of black lung, a disease that has been a contributing factor in the death of 76,000 coal miners since 1968.

As that report, from SNL Financial’s Taylor Kuykendall, continues:

The industry argues the rule was unlawfully promulgated without the participation of the National Institute for Occupation Safety and Health. Already, the filing states, the rule has imposed substantial burdens and costs in the form of re-engineering mines, purchasing expensive equipment, training and hiring personnel and new government certifications.

“These costs have hit a coal industry substantially weakened financially even compared to the already-weakened state it was in when the dust rule was promulgated in 2014,” the filing states.

You can read the industry court filing here, and there’s another media report on the issue out in the Herald-Leader:

The coal industry is seeking to forestall new standards aimed at cutting miners’ exposure to breathable dust that can cause deadly black lung disease.

Feb. 1 is the start date for the second phase of the rule. It would require miners to wear continuous personal monitors to check their exposure to dust, and companies would have to do more frequent sampling to check for compliance with dust limits.

Will W.Va. look for some other baskets?

January 6, 2016 by Ken Ward Jr.

fog1_I130113215421

Photo by Kenny Kemp

There’s a new white paper out from Downstream Strategies that summarizes some of their previous findings and recommendations (see here, here, here and here) about the place West Virginia coalfield residents find themselves in.

It’s called, “All of our eggs in one basket?” and among its key messages are:

Among the key messages:

For years, we have known that Central Appalachian coal production was going to decrease dramatically. And it has.

Coal production is falling fast in southern West Virginia, but staying stable in northern West Virginia. This is significantly impacting coal-dependent communities in southern West Virginia.

This is a statewide issue. Severance tax revenues from the coal industry are declining, and increased revenues from the natural gas industry have not fully made up the difference.

The General Revenue Fund relies heavily on severance tax revenues.

Recent budgets have overestimated expected revenues from severance taxes, including the first three months of fiscal year 2016.

Their conclusion:

For years, we have known that coal production was likely to drop significantly in southern West Virginia, and that coal
production will likely continue to decline in the future. Now that these projections are coming true, the state is grappling
with fewer jobs, bankrupt companies, and declining severance tax revenues.

Together, these present unprecedented challenges not just for southern West Virginia counties, but also for the state as a
whole.

New approaches are needed.

Another coal miner dies on the job

December 10, 2015 by Ken Ward Jr.

Mine Explosion

Here’s the sad news out of the coalfields of Illinois:

A Marion man died Tuesday night, the result of a mining accident that occurred at M-Class Mine, located on North Thompsonville Road in Macedonia.

Franklin County Coroner Marty Leffler was informed of the incident shortly before 9 p.m. Tuesday. Chief Deputy Coroner John Gaskewicz responded to the mine to await the removal of the victim.

Near 11:30 p.m. the body of the miner was brought to the surface and pronounced dead at the scene.

The coroner’s office said 20-year-old Tyler D. Rath was identified as the victim. Rath is survived by a wife, a 2-year-old daughter and a six-day old son. Rath is a 2014 graduate of Marion High School.

The U.S. Mine Safety and Health Administration said:

On the night of Dec. 8, a fatal accident occurred at the mine listed below.  Preliminary information indicates that the victim was transporting a trailer loaded with longwall face conveyor chain into the mine via a slope entry.  The trailer travelled over the tractor in which the victim was operating, striking the operator’s compartment.   An investigation is ongoing.

MSHA said that incident occurred at M-Class Mining LLC’s MC #1 Mine. The mine had one fatal accident in 2013 and another in 2014, according to MSHA.

This is the 11th coal mining death in the U.S. in 2015 and the 2nd in Illinois, according to MSHA’s official count.

While M-Class Mining LLC operates the mine, Foresight Energy, founded by coal operator Chris Cline, is the ultimate owner of the mine, said spokesman Gary Broadbent. Foresight entered into a deal earlier this year by which Murray Energy, founded by Bob Murray, acquired “a significant economic interest” in Foresight.

Judge Berger issues post-trial rulings

December 9, 2015 by Ken Ward Jr.

U.S. District Judge Irene Berger has issued a bunch of post-trial rulings in the Don Blankenship case. Here they are:

— An order denying a request from The Associated Press for a list of all of the jurors in the trial.

— A ruling against Blankenship’s request for a judgment of acquittal on all counts.

— Another decision that rejects defense efforts to have the case moved to another court jurisdiction.

— A ruling against a defense request to order MSHA to turn over more records to the defense team.

An order that rules on several other pending motions in the case.

Another order that rules on a long list of matters still pending.

 

The Don Blankenship Verdict

December 4, 2015 by Ken Ward Jr.

F. BRIAN FERGUSON | Gazette-Mail Don Blankenship leaves federal court on Wednesday after a juror fell ill.

Photo by F. Brian Ferguson

Longtime mine safety advocate Davitt McAteer pointed out to me that today is the Feast Day for Saint Barbara, the patron saint of miners.  And Sunday is the 108th anniversary of the Monongah Mine Disaster.

Of course, this time of year especially, it’s hard to find a day on the calendar that isn’t the anniversary of one terrible mine disaster or another.  They kind of all run together sometimes, which I guess is part of the problem. The names of the mines and the towns — even the names of the miners — are often forgotten by all of us, except of course our neighbors who have lost fathers, sons, brothers and friends. For those families, the grief goes on and on.

It’s tempting to dismiss the verdict yesterday from the eight women and four men who decided the Don Blankenship case.  Only a year in jail? A misdemeanor?

It’s equally tempting to make far too much of it. A sea change in how coal-mine safety is enforced in this country?

It’s almost as tempting to politicize it. Is Booth Goodwin going to announce his run for governor now? Remember how all those Republicans tried to weaken our mine safety laws?

At the same time, if you look at Brian Ferguson’s photo on the front page of today’s Gazette-Mail, it’s difficult not to see more than a bit of smugness in Blankenship’s grin. After all, when jurors marked only the first of two “objects” of the conspiracy in Count One on their verdict form — and then checked “not guilty” for Counts Two and Three — they knocked the conviction down to a misdemeanor that, yes, carries a maximum prison sentence of only one year.

It doesn’t seem like much when you look at the photos of those 29 men who died at Upper Big Branch.

Now, I don’t know about you. But if I have my choice of no days in jail or a year — or even a day — in jail, I’ll take no days in jail, thank you very much. And remember that we don’t have much of any idea at this point how the potential fine — up to twice the financial gain or loss from Blankenship’s conspiracy — might shake out.

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Court releases draft ‘Allen charges’

December 2, 2015 by Ken Ward Jr.

F. BRIAN FERGUSON | Gazette-Mail Don Blankenship, left, and his legal team leave federal court on Wednesday after a juror fell ill.

Photo by F. Brian Ferguson

Perhaps lost in the news about yesterday’s issuance of an “Allen charge” in the Don Blankenship case was that there were actually competing proposals that were being debated by lawyers in the case and U.S. District Judge Irene Berger.

For those who are interested, those various proposals have now been made public, added to the court’s PACER computer document filing system by the court.

First, here is the instruction that Judge Berger actually delivered to the jury.

Second, here is the proposal submitted to Judge Berger by the government.

Third, here is a proposed instruction from the defense regarding “juror disagreement.”

Fourth, here is a proposed instruction from the defense regarding communications with the court.

Fifth, here is a proposed instruction from the defense regarding jury deadlock.

Jury sent home early Wednesday

December 2, 2015 by Ken Ward Jr.

The jury in the Don Blankenship case has been sent home for the day because one of the jurors is sick. U.S. District Judge Irene Berger dismissed the jury at about 3:20 p.m. from their ninth day of deliberations.

 

Prosecutors seek 2nd ‘Allen charge’ before mistrial

December 2, 2015 by Ken Ward Jr.

F. BRIAN FERGUSON | Gazette-Mail Don Blankenship and his legal team exit the Robert C. Byrd Courthouse during Tuesday's lunch break.

Photo by F. Brian Ferguson

Jurors in the Don Blankenship case have just taken their daily lunch break, but the latest news just in is that prosecutors have filed this new motion asking U.S. District Judge Irene Berger to give jurors a second “Allen charge” before she considers declaring a mistrial.

The motion begins:

The United States moves that, in the event the jury again states it is deadlocked, the Court give a second Allen charge before considering a mistrial. At the moment, of course, the jury continues to deliberate, and it may well reach a verdict that renders this motion superfluous. The United States nonetheless submits the motion now to give the Court sufficient time to consider it should it ripen.

Here are the reasons prosecutors say this is desirable:

First, the jury’s behavior these past two months shows coercion is unlikely. As the Court observed, the jury has demonstrated exemplary patience, attentiveness, and seriousness of mind. It is evident that the jury regards its duty soberly, and a properly balanced Allen charge would not sway it either way.

Second, the jury has not yet said it cannot make further progress. There have been two notes about the jury’s lack of agreement thus far, and both have asked the Court for direction on how to go forward. Early on, the November 19 note asked, “How long do we deliberate?” The December 1 note sought further direction more expressly, asking, “Do you have any further instructions as to what we should do?” Even after several days of deliberation, the jury thus holds open the prospect of progress and invites the Court to assist it in reaching a verdict. A second Allen charge will not coerce a jury that has taken such a responsible and deliberate approach to its work.

Third, the length of deliberations, even after a second Allen charge, will not be disproportionate to the amount of evidence the jury has seen and heard or the length of that evidence’s presentation. If the case had lasted only a day or two, a second Allen charge after more than seven days’ deliberations might be taken as an order to reach a verdict no matter what. The situation here differs greatly. Even if another deadlock note is received after further deliberation, directing the jury to continue deliberating would not be a disproportionate step in light of the evidence presented. This maintenance of proportionality further minimizes any possibility of coercion.

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‘Coal is about the only thing Central Appalachia has’

December 2, 2015 by Ken Ward Jr.

A pedestrian stands on a street corner as a message is displayed in a storefront window along the business district, Wednesday, Oct. 7, 2015, in Welch, W.Va. West Virginia is the only state in the country where more than half of adults are not working, according to the Census Bureau. It is tied with Kentucky for the highest percentage of residents collecting disability payments from Social Security, according to the Kaiser Family Foundation. And the death rate among working-age adults is highest in the nation, 55 percent higher the national average, according to the Centers for Disease Control and Prevention. (AP Photo/David Goldman)

A pedestrian stands on a street corner as a message is displayed in a storefront window along the business district, Wednesday, Oct. 7, 2015, in Welch, W.Va. (AP Photo/David Goldman)

As we waited at the Robert C. Byrd United States Courthouse yesterday for word on any movement by the jury in the Don Blankenship criminal case, it was interesting to sit in on a hearing that U.S. District Judge Irene Berger was having on another coal-related case. The Gazette-Mail’s Kate White had written about it before, prior to it being moved to federal court:

A Wyoming County couple says the buildup of methane gas from an underground mining operation caused an explosion at their home Sunday — a week after the couple filed a lawsuit against the mining company.

James and Rose Surratt, who own two properties on Woosley Road in Pineville, filed a motion Tuesday asking for emergency injunctive relief against Pinnacle Mining Co. James Surratt is an underground coal miner for Pinnacle. The company is in the beginning process of setting up an underground longwall mine that runs, in part, underneath Woosley Road.

In addition to the lawsuit filed last week by the Surratts, other residents and a small-business owner on or near Woosley Road also filed a lawsuit Tuesday against Pinnacle Mining for damages that allegedly occurred after the company began operations in their area.

Some of the out-of-town press seemed at least mildly interested. Watching the hearing was better than just sitting on the wooden benches in the courthouse lobby, though plenty of other media were content to read their novels, chat or speculate about what the jury was up to. A few folks were amazed by the case — I mean, come on, the house blew up, right?

Of course, West Virginians and other coalfield residents know that suffering all manner of mishaps, inconveniences — and disasters — has long been part of living life with the mining industry.

Anybody who was paying much attention yesterday when the residents’ expert witness, legendary mine engineer and inspector Jack Spadaro, was explaining his professional history — from his early days following the Farmington Mine Disaster, to his investigation of the Buffalo Creek Disaster, to his work on the Martin County Disaster — could not help but be reminded of that. And of course, as Spadaro rattled off those terrible parts of our history, eight women and four men in the next room were deliberating on the future of Don Blankenship, the former Massey Energy CEO whose indictment was spurred by a federal investigation of Upper Big Branch, the worst coal-mining disaster here in a generation.

At about the same time, readers around the world were checking out the latest “big picture” take on the region’s coal industry, provided by The Associated Press:

The seams of coal in some of Eddie Asbury’s mines in McDowell County are so thin that workers can barely squeeze down them. They enter on carts nearly flat on their backs, the roof of the mine coursing by just a few inches above their faces. They don’t stand up all day.

To keep his business operating with such a paltry amount of coal, Asbury has to do everything himself. He has no use for the shiny, multimillion-dollar mining machines on display this fall at the biannual coal show nearby. His equipment is secondhand stuff that he repairs and refurbishes. The coal he and his workers scrape out of the mountain is washed and prepared for sale in a plant Asbury and a colleague built themselves.

“It’s how we survive,” said Asbury, 66, a miner since 1971.

Then there’s this kicker of a line:

Even coal is barely surviving in coal country — and coal is about the only thing Central Appalachia has.

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4 things to know about the ‘Allen charge’ issued to the jury in the Don Blankenship trial

December 1, 2015 by Ken Ward Jr.
F. BRIAN FERGUSON | Gazette-Mail Don Blankenship, center, and his legal team exit the Robert C. Byrd Courthouse during Tuesday's lunch break.

Photo by F. Brian Ferguson

Today’s move by U.S. District Judge Irene Berger to deliver an “Allen charge” to jurors is a potentially significant development in the Don Blankenship trial.

Here’s what you need to know:

— The “Allen charge” is not a new concept:  The name comes from an 1896 U.S. Supreme Court case called “Allen v. United States.”

The case involved 14-year-old Alexander Allen who was tried and convicted twice of killing 18-year-old Phillip Henson. During a third trial in which Allen was eventually convicted again, jurors told the trial judge they were deadlocked. The Judge Isaac Parker instructed the jurors to re-examine their opinions, thus leading to what has come to be known as an Allen charge. Parker’s instruction was nearly verbatim from Commonwealth v Tueywhich was an 1851 Massachusetts state court decision that used similar instructions.

In its ruling affirming Allen’s third conviction,  the Supreme Court upheld the trial court’s instructions that jurors should carefully examine their views and consider whether they could be wrong:

The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself.

It cannot be that each juror should got to the jury room with a blind determination that the verdict shall represent his opinion or the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself.

— It’s controversial: Especially when given in strong terms, Allen instructions are sometimes referred to as “dynamite” charges because of their ability to “blast” a verdict out of a deadlocked jury.

An Allen Charge has also been referred to as a “nitroglycerin charge,” “the third degree instruction” and a “shotgun instruction.”

On appeal, Allen charges can sometimes be overturned if they are determined to have had an “impermissibly coercive” effect on the jury.  For example, judges are generally not supposed to tell juries that they “must” reach a verdict. Also, judges have been advised not to give an Allen charge after inquiring into the numerical division of the jury. In these cases, holdout jurors could interpret the charge as directed specifically at them.

Some defense lawyers argue — as Bill Taylor did on Blankenship’s behalf — that a defendant has a right to a hung jury. In a 1970 case called United States v. Sawyers, the 4th Circuit said that theory is wrong. A defendant, the court said, “has only the right to have the jury speak without being coerced.”

The 4th Circuit has said that one way for trial judges to avoid coercion when giving an Allen charge is to instruct both jurors in the minority and those in the majority to re-examine their positions, as Judge Berger did in the Blankenship case.

— It’s legal in this jurisdiction:  Although several courts have disallowed the use of an Allen charge – for fear of it being coercive and possibly singling out minority jurors – this past March, the 4th U.S. Circuit Court of Appeals — which includes West Virginia — upheld the use of an Allen charge.

In fact, the 4th Circuit ruled in that case that a trial judge could deliver not just one — but two — Allen charges. The court declined to set a limit on the number of times judges can use the instruction to try to encourage continued deliberations.  The 4th Circuit said it reviews appeals of Allen charges based on the “likelihood of coercion” of jurors. Some of the factors to be considered include the language of the instruction, its incorporation with other instructions, the timing of the instructions, and the length of the jury’s subsequent deliberations.

The 4th Circuit said, for example, that three hours of deliberations after a second Allen charge provided “adequate assurance” that the jury was not “improperly coerced.” Also, “very tellingly,” the court said, the jury in the case came back with a split verdict — further suggesting they had not been coerced.

At the government’s request, Judge Berger in the Blankenship case included in her Allen charge an instruction that jurors could return a verdict on some counts, but not on others. The 4th Circuit ruling this March also upheld an Allen charge that included language telling a deadlocked jury that a mistrial could result in lost “time, money and other resources” if the case had to be retried. Judge Berger declined to use such language in her Allen charge in the Blankenship case.

— Judges have broad discretion in these circumstances:   Appeals courts have ruled that trial-court judges like Judge Berger are often “in the best position to gauge whether a jury is deadlocked or able to proceed further with its deliberations.

The U.S. Supreme Court has ruled that trial judges may declared a mistrial “whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity” for doing so. The decision is left to the “sound discretion” of the judge, but the power “ought to be used with the greatest of caution, under urgent circumstances, and for very plain and obvious causes.”

Jury indicates they remain deadlocked

December 1, 2015 by Ken Ward Jr.

UPDATED: Judge tells jury to continue working.

The jury in the Don Blankenship trial has sent a note to U.S. District Judge Irene Berger indicating they remain deadlocked.

Shortly before 11 a.m., Berger received a note and subsequently called attorneys for both the prosecution and defense.

At around 11:15, Berger told attorneys the note indicated that the jury remained deadlocked. Jurors also asked “do you have any further instructions?”

Berger indicated that she intends to give jurors an “Allen Charge,” an instruction that is used to encourage a deadlocked jury to continue deliberating toward a verdict.Lead defense attorney Bill Taylor objected to the Allen Charge, instead calling for a mistrial. Assistant U.S.

Attorney Steve Ruby did not object to the Allen Charge, and asked that the judge follow the language used in previous Allen Charges used in the Fourth Circuit.

In addition to the Allen Charge, Ruby asked Berger to use a previously proposed defense jury instruction.

Court remains in session. Additional updates will be posted as they become available.

Blankenship jury deliberates another day

November 30, 2015 by Ken Ward Jr.

Jurors in the Don Blankenship criminal case put in another full day of deliberations today.

The eight women and four men reported to the Robert C. Byrd United States Courthouse at 9 a.m. and left for the day at about 5 p.m.

No verdict was reached, and U.S. District Judge Irene Berger did not announce any notes received from the jury.

Jurors are due back at the courthouse tomorrow at 9 a.m. to resume their work.

Jurors receive more instructions upon return from holiday break

November 30, 2015 by Ken Ward Jr.

U.S. District Judge Irene Berger this morning cautioned jurors in the Don Blankenship trial to “be vigilant” about discussing the case outside of the jury’s private deliberation room.

Berger told jurors that they must “walk away” if necessary to avoid members of the public talking about the case in their presence.

The judge also gave jurors an additional instruction about the way they deliberate.

“Every juror should be able to express an opinion if he or she wants to do so,” Berger told the jurors. She told them they must “be respectful” of each other and “treat each other with courtesy.”

Berger’s instructions this morning came as jurors began their seventh day of deliberations following a five-day break for Thanksgiving. Instructions also came following a closed-door session last Tuesday between Berger, prosecutors and Blankenship’s defense team. The subject of that meeting has not been disclosed and Berger has not said why it needed to occur in private.

This morning’s instructions to the jury came during a brief discussion between Berger and the attorneys that took place in open court but was held 15 minutes before the scheduled start of the day’s court session.

Berger said that lead defense lawyer Bill Taylor’s flight to Charleston was delayed and that Taylor had asked her to hold off on any additional jury instructions until he could be present. Blair Brown, another of Blankenship’s attorneys, asked the judge to also instruct jurors that none of them should “come to a decision simply because other jurors think it is right.” Berger declined to give that instruction. Brown then asked to make several other requests, but that he be allowed to do so at the bench. Berger granted that request and held a private discussion with the lawyers before the jury came into the room.

No details about Brown’s requests were disclosed.