The following is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

In a court order filed today, U.S. District Judge Irene Berger dealt a blow to former Massey Energy CEO Don Blankenship’s defense team.

Berger’s order essentially sides with the government which previously filed a motion to exclude evidence related to Massey’s disagreement with federal regulations prohibiting the use of belt air.

In her new filing, Berger cites her October 6 ruling on the government’s motion in limine to exclude “claims that federal mine safety standards were incorrect, misguided or imprudent.”

In the government’s latest motion, which was filed October 8, they called attention to defense lawyer Bill Taylor’s opening statement and subsequent cross-examinations in which the defense has attempted to introduce evidence that suggests the U.S. Mine Safety and Health Administration forced the Upper Big Branch mine to adopt a ventilation plan that did not use “belt air.”

According to EHS Today, an occupational safety and health magazine, belt air is the practice of bringing air into mines for miners to breathe using the same tunnels that are used to take out coal.

In their reply to the government’s motion, the defense claims that the evidence they planned to use “bears directly” on the “cause of citations issued during the indicted period” and also “bears on the relationship between MSHA and Massey.”

The defense argued that the evidence and argument does not fall within Berger’s October 6 in limine ruling.

In her motion, Berger cites the federal regulation governing the use of belt air. She writes:

“Belt air may be used to ventilate a “working section” of a mine only when “evaluated and approved by the district manager in the mine ventilation plan.” 30 C.F.R. §75.350(b). Approval requires the mine operator to provide “justification in the [mine ventilation] plan …” Id. To satisfy the “justification” requirement, the mine operator must show that the “use of air from a belt entry” will provide “at least the same measure of protection” as other ventilation methods. Id. The plain language of this regulation requires MSHA to evaluate mine ventilation plans that propose using belt air to ventilate the mine’s working face, and to reject plans that run afoul of federal mine health and safety regulations.”

Berger concludes:

“Evidence and argument that Massey disagreed with MSHA’s enforcement of the belt air regulations at Upper Big Branch is inadmissible. The same is true of evidence and argument that MSHA “forced” the Upper Big Branch mine to adopt a ventilation plan that did not use belt air. Such evidence clearly falls within the Court’s prior ruling on “claims that federal mine safety regulations were incorrect, misguided, or imprudent,” and must be excluded.”

To read the entire order, click here.