The lights on the helmets are turned on at the end of a memorial service for the miners killed in the Upper Big Branch Mine, in Beckley, W.Va., Sunday, April 25, 2010.(AP Photo/Alex Brandon)

Maybe it was always kind of lurking beneath the surface of former Massey Energy President Don Blankenship’s defense — kind of like the Upper Big Branch Mine Disaster is the seldom-mentioned elephant in the room of his trial — but certainly, the long-pushed industry line that safety citations are unavoidable in the mining industry came out front and center yesterday.

Here’s the exchange between defense lawyer Bill Taylor and former Performance Coal Co. President Chris Blanchard:

Q. And did you think that MSHA recognized that even after reduction which got it off the PPOV status, it would continue to receive citations?

A. Yes, sir.

Q. Did you understand that it would continue to receive citations? A. Yes, sir.

Q. Because citations are inevitable, aren’t they?

A.  Yes, sir.

Taylor was asking Blanchard about the letter the Upper Big Branch Mine received from the U.S. Mine Safety and Health Administration when MSHA had determined that UBB’s safety performance had improved enough to have the mine taken off the list for “potential pattern of violation status.” In particular, Taylor asked Blanchard about a sentence in the letter in which then-MSHA District Manager Bob Hardman encouraged the Upper Big Branch Mine “to build on this success by striving for even greater achievement in your compliance record.”

Read carefully what Blanchard said he thought that meant:

I would understand that to mean that it should be our goal to — it should be our goal to not receive any violations and to continue to try and find hazards and correct them.

Well, Bill Taylor didn’t exactly like Blanchard’s wording, so he followed up with this question:

But he didn’t say that you had to strive to reduce them to zero?

Blanchard responded:

No, sir.

Still not quite enough for Bill Taylor, who then asked Blanchard:

If — in fact, if MSHA had made all coal mines reduce their violations to zero, there wouldn’t have been any coal mines in operation in the United States, would there?

Assistant U.S. Attorney Steve Ruby objected, saying the question called for Blanchard to speculate. Incredibly, Bill Taylor responded:

It’s a question of fact.

U.S. District Judge Irene Berger sustained the objection, but Taylor continued with a similar — but rephrased — line of questioning:

Question: Did you know of any mines in the United States that received zero citations?

A. No, sir.

Q. So if MSHA — if MSHA’s rule was that you had to have zero citations, none of the mines that, in the United States would have been able to operate, would they?

A. That’s correct.

Now keep in mind that this is all part of the defense strategy in this case, a way to deflect any damage to Blankenship by the poor record of safety compliance at Upper Big Branch prior to the April 2010 explosion that killed 29 miners. The defense is particularly worried about prosecutors making an argument that by setting a goal of reducing violations at Upper Big Branch by a certain percentage — to anything less than zero violations — the government will show that Blankenship was accepting the number of violations that remained after that percentage reduction was reached.

Prior to trial, defense lawyers filed a whole motion trying to prevent the government from going down this particular road.  They said:

Approving a short-term violation reduction goal of 50% does not mean that Mr. Blankenship intended to commit or  condone the remaining 50% of safety violations. Nor does Massey’s goal of 59 violations forUBB indicate that Mr. Blankenship intended or condoned 59 violations in the mine. Indeed, this evidence shows precisely the opposite. Mr. Blankenship instituted a company campaign
intended to prevent safety violations and set aggressive, short-term reduction goals in order to achieve that end.

For the government to pluck a figure or two from the context of a much largercompany effort and use it to suggest that the violation-reduction campaign was actually an authorization of unlawful conduct defies any reasonable inference and is fundamentally misleading. Individuals and companies commonly set “clear,” “measurable,” and “achieveble”goals for themselves – this, of course, does not mean they do not wish to do even better in the long-run.

Prosecutors responded with this:

In truth, what did was tell his mines to keep breaking the safety laws rampantly but to do it somewhat less rampantly than before. For this, he applauds himself, and he asks the Court to join in. That is absurd. And it highlights the fact that breaking the safety laws was just one more part of his business strategy—one more variable to manage with an eye on the bottom line, like the cost of electricity or the price of a ton of coal. Nearly a year after being indicted, he seems still not to understand that the law is the law, that he does not get to decide when or how often he will break it, and that if he behaves otherwise, he must pay the consequences.

Eventually, here’s how Judge Berger ruled:

I’ve reviewed the arguments by the parties here. I’ve denied the motion, finding that argument should not be excluded if based on evidence admitted during the course of the trial or if based on fair inferences from that evidence. The fact that different inferences could be drawn from the evidence does not make the argument subject to exclusion and, therefore, I deny the motion, preserving the defendant’s objection and exception if evidence or fair inferences from evidence would support such an argument.

As this issue plays out in the trial, though, there’s something that is hard to escape. There’s a long history of the coal industry telling West Virginians that certain sorts of things — oh, mining deaths and disasters, for example — are just inevitable, whether just fluke accidents or Acts of God.  We’re written about this before on Coal Tattoo.  And it’s worth remembering that even some coal industry executives have taken to the notion that the only acceptable goal, really, is zero.