Coal Tattoo

Always right: Blanchard follows Blankenship’s lead

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Former Performance Coal Co. official Chris Blanchard, right, leaves the federal building with his attorney, Alan Strasser. Photo by Joel Ebert.

As the cross-examination of Chris Blanchard continues in the Don Blankenship trial, it’s interesting to look back at some early testimony from and about Blanchard in the context of Blankenship’s advice to him and Blanchard’s reactions.

First, there was the testimony of Blanchard’s former assistant, Lisa Williams, describing Blanchard’s phone calls with Blankenship:

I could hear him saying “yes, sir,” “no, sir.” It sounded like he was trying to — he sounded kind of whipped, like a whipped pup. I mean, it was “yes, sir,” “no, sir,” “I’ll do better.”

Then, there was Blanchard himself, when first starting his cross-examination by Blankenship defense lawyer Bill Taylor:

Q. And would you also agree that in those communications between you and Mr. Blankenship over this period that he made demands of you?

A. Yes, sir.

Q. He made demands for performance, better performance?

That questioning went on:

Q. And he periodically would criticize your performance, would he not?
A. Yes, sir.
Q. And, indeed, sometimes even insult you?
A. Yes, sir.
Q. And do you remember the long phone call in which he — the first one I think in which he’s telling you about how he thinks you ought to do your job?
A. Yes, sir.
Q. Was — in which he said you’ve got to get moving?
A. Yes, sir.
Q. Remember he talked about moving?
A. Yes, sir.
Q. Was he right about some of those things?
A. Yes, sir. He was always right about some of the things.

Remember, now, we’re talking about a CEO who spent a lot of time criticizing Blanchard for how he held the telephone (listen here).

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Defense lawyers for Don Blankenship this morning continued their cross-examination of prosecution witness Chris Blanchard, now in its fourth day.

Lead defense lawyer Bill Taylor asked the former Performance Coal Company president about a series of memos aimed at showing that Massey Energy was concerned about safety prior to facing tougher federal enforcement in late 2007 and early 2008.

“Safety is our priority,” Blanchard said, reading from one Massey memo dated March 2007.

Blanchard testified about one incident in which the Upper Big Branch Mine’s conveyor belt system was shut down so excess amounts of spilled coal could be cleaned up.

Blanchard read to the jury from handwritten notes that depicted Blankenship as furious that the situation had been allowed to reach that point.

“I’ve had it with nonsense,” Blankenship had written. “Whoever is in charge of the belts needs to be discharged. Let’s turn this company around.”

In a second handwritten note directed to Blanchard, Blankenship said: “Clearly your UBB super[intendent] and belt people are not members” – Massey’s term for its employees. “Clear them out.”

U.S. District Judge Irene Berger this morning told defense lawyers for Don Blankenship that they cannot show jurors a video of an August 2009 meeting where Massey Energy kicked off a new safety program.

Berger, announcing her ruling before bringing the jury into the courtroom, said the video was not admissible evidence in the case against Blankenship.

“It’s riddled with statements of opinion and hearsay that are inadmissible” Berger said. “There is a lot of what I would generally call puffery.”

Defense lawyers have touted the meeting held at Scott High School as an example of Massey’s efforts to implement a new “hazard elimination program” to reduce safety violations.

Blankenship did not attend the meeting because he had recently had gall bladder surgery, defense lawyers said.

Berger said the video shows the meeting starting with a prayer and with one speaker making analogies between the Bible and government safety rules. State rules were the little testament and federal rules the big testament, the speaker said, according to the judge.

Berger said the video included a scene where Massey chief operating officer Chris Adkins is holding one young male child with another child is standing next to him.

“This is what its all about,” Adkins says in the video, according to the judge.

Defense lawyers had argued the video showed the sorts of instructions about following safety rules that Massey officials were giving to employees. But the judge said, “There is much more in this video than directives.”

Defense lawyer Eric Delinsky told Berger that the defense might want to submit a new version of the video with the inadmissible portions taken out.

The judge responded, “I don’t know how you’re going to do that. As I’ve indicated it’s riddled with hearsay and opinion and puffery.”

After Berger announced her ruling the jury was brought in and defense lawyer Bill Taylor continued his cross-examination of former Performance Coal Co. President Chris Blanchard as the trial began its 15th day of testimony.

Blankenship defense still not done with Blanchard

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Chris Blanchard leaves the federal building on Tuesday with his defense lawyer, Alan Strasser. Photo by Joel Ebert.

When the Don Blankenship jury went home for the night today, former Performance Coal Co. President Chris Blanchard was still on the witness stand. Defense lawyer Bill Taylor wasn’t done — yet — with his cross-examination.

Blanchard will be back on the stand tomorrow. And stay tuned, because at some point, Assistant U.S. Attorney Steve Ruby will get to do re-direct examination of Blanchard. If anyone has forgotten, it was the prosecution who put Blanchard up there to testify in the first place.

Court resumes at 9 .m. Wednesday.

Former Performance Coal Co. President Chris Blanchard remained on the stand this afternoon continuing to defend what he said were serious efforts to improve the safety record of Massey Energy’s Upper Big Branch Mine.

“My goal was to reduce violations,” Blanchard said at one point.

Later he said, “At the time, I thought I was doing the best I could.”

Defense lawyer Bill Taylor continued his cross-examination of Blanchard – which began on Friday – late into the afternoon today.

U.S. District Judge Irene Berger appeared to reject, at least for now, Taylor’s efforts to play for the jurors video of an August 2009 meeting where Massey launched what defense lawyers have billed as a major safety initiative.

She also declined to allow Taylor to show jurors a slideshow that Blanchard had prepared for a company meeting but didn’t deliver.

The slideshow titled, “Shooting Myself in the Foot,” was intended to feature safety lessons from UBB’s 2009 violation reduction efforts.

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Blankenship defense lawyer Bill Taylor briefly turns toward the prosecution table during his cross-examination of Chris Blanchard. Illustration by Jeff Pierson.

As the jury in the criminal trial of former Massey Energy CEO Don Blankenship took its lunch break today, defense lawyer Bill Taylor still had former Performance Coal Co. President Chris Blanchard on the stand for cross examination (see here, here, here, and here for previous items).

Among other things, Taylor had Blanchard explain to the jury the steps that Massey officials took to try to remedy a buildup of water in the Upper Big Branch mine that was hampering efforts to properly ventilate the underground operation.

“We hadn’t put enough pumps in that one section to deal with the amount of water we were getting,” Blanchard testified. “We got more pumps and we pumped out the water.”

Blanchard also testified that a mine foreman who was in charge of the area was demoted.

Taylor also continued to use Blanchard’s testimony to try to point out areas where the defense argues Massey — under Blankenship’s leadership — went above and beyond federal rules. Blanchard noted, for example, that Massey had begun daily examinations of certain portions of the mine that federal regulations would have required be examined only once per week.

Today is the 14th day of testimony in the case.

 

As cross-examination of Chris Blanchard continued this morning in the Don Blankenship trial, defense attorney Bill Taylor tried to minimize the importance of certain federal mine safety citations.

Taylor questioned the former Performance Coal Company president about a series of citations the U.S. Mine Safety and Health Administration issued at the Upper Big Branch Mine.

One was for a miner not having an ID tag attached to his belt. Another was for the mine’s bathhouse needing to be cleaned. Another was for having a propane grill in the mine parking lot.

Taylor asked Blanchard, “Is it fair to say that some citations are much more serious than others?” Blanchard responded, “Yes.”

Taylor also used this line of questions to make the defense argument that citations are “inevitable” in the coal industry.

He asked Blanchard if anyone in the country can avoid MSHA citations. Blanchard agreed it was impossible, and added, “Too many of the citations are too subjective.”

Blanchard, a key government witness against former Massey Energy CEO Blankenship, was questioned by Assistant U.S. Attorney Steve Ruby part of last Thursday afternoon and Friday morning. Taylor began his cross-examination on Friday afternoon, continued his questions all day Monday and still had Blanchard on the stand at mid-morning today.

Obama Mine Explosion

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.

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Blankenship defense highlights disciplining miners

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Former Massey Energy CEO Don Blankenship outside the federal court building with his lead defense lawyer, Bill Taylor. Photo by Joel Ebert.

Defense attorneys for former Massey CEO Don Blankenship ended today’s session of Blankenship’s criminal trial with former Performance Coal Co. President Chris Blanchard still on the witness stand.

Lead defense lawyer Bill Taylor closed our the day by having Blanchard go through a list of two dozen instances where Massey officials had disciplined miners at the Upper Big Branch mine for actions — or inactions — that led to citations from the U.S. Mine Safety and Health Administration.

In the middle of this testimony, Taylor asked Blanchard a couple of interesting questions.

First, Taylor asked him if it is hard to get coal miners to do what you want. Blanchard said, “Certainly, sir.”

Then, Taylor asked him if some coal miners don’t like to be told what to do. Blanchard agreed.

Taylor asked if some coal miners are pretty sure they know how to do things better than their bosses. “That’s probably true,” Blanchard said.

Court is set to resume at 9 a.m. tomorrow.  Given that Taylor spent all day today cross-examining Blanchard, the prosecution’s suggestion that they might complete their case by early this week seems unlikely to come true.

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Former Performance Coal President Chris Blanchard leaves the federal courthouse at lunch today. Photo by Joel Ebert.

When the criminal trial of former Massey Energy CEO Don Blankenship broke for lunch today, lead defense lawyer Bill Taylor was still cross-examining Chris Blanchard, the former president of Massey subsidiary Performance Coal, which operated the Upper Big Branch Mine (see here, here and here for previous Blanchard testimony).

Taylor has been questioning Blanchard about Massey safety efforts and has hammered away with questions that prompt Blanchard to repeatedly say that Blankenship never instructed him to violate federal mine safety rules or that violating those rules was acceptable.

Toward the end of the morning’s court session, Taylor was having Blanchard explain to the jury a list of U.S. Mine Safety and Health Administration citations that were issued to Upper Big Branch. Blanchard testified that each of that citations was sent up the line to Massey Chief Operating Officer Chris Adkins, who would send them back to Blanchard with questions about how the violation occurred — and exactly what individual worker was responsible for it — and that Blanchard would then talk to officials at the mine to try to answer Adkins’ questions.

“They wanted the hazards eliminated and the violations reduced,” Blanchard told jurors.

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.

Massey Energy’s Upper Big Branch Mine greatly improved in safety performance in early 2008 in response to a threat for tougher federal enforcement, the jury in the Don Blankenship case heard this morning.

Upper Big Branch reduced its violations by 44 percent in the first quarter of 2008, better than the 30 percent goal set by the U.S. Mine Safety and Health Administration, former Performance Coal President Chris Blanchard testified.

Blanchard was on the stand this morning continuing to be cross-examined by lead defense lawyer Bill Taylor as the 13th day of testimony in the Blankenship case began.

Taylor got Blanchard to agree that MSHA did not demand that UBB reduced its violations to zero.

Blanchard cross-examination continues Monday

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Former Massey Energy CEO Don Blankenship leaves the federal courthouse on Friday with defense attorneys Blair Brown, left, and Steven Herman. Photo by Joel Ebert.

U.S. District Judge Irene Berger sent the jury home at 4 p.m. today, for a slightly early weekend. Court is set to resume at 9 a.m. Monday in the criminal trial of former Massey Energy CEO Don Blankenship.

Defense lawyer Bill Taylor is expected to continue his cross-examination of former Performance Coal Co. president Chris Blanchard (see here, here and here for more).

Taylor indicated that he expects to question Blanchard about a video that shows portions of a much-touted Massey meeting at Scott High School in 2009 where a new company safety initiative was announced. During direct questioning of Blanchard this week, Assistant U.S. Attorney Steve Ruby learned from Blanchard that Blankenship did not attend the meeting — and that hourly coal miners from Upper Big Branch didn’t attend either.

For regulator updates on the Blankenship trial, check Coal Tattoo frequently, and visit our Blankenship Trial page for more coverage.

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Former Performance Coal Co. President Chris Blanchard. Photo by Joel Ebert

A key witness for federal prosecutors denied this afternoon that he conspired with former Massey Energy CEO Don Blankenship to willfully violate mine safety standards.

“No, sir,” former Performance Coal Co. President Chris Blanchard said when cross-examined on the matter by Blankenship defense lawyer Bill Taylor.

Taylor began his cross-examination of Blanchard in mid-afternoon after Assistant U.S. Attorney Steve Ruby finished more than six hours of questioning of Blanchard.

On Thursday, Blanchard had testified that there was “an understanding” at Massey that a certain number of violations would always be written even if they could have been prevented by the company.

This afternoon, Blanchard told jurors that prosecutors had threatened for several years to charge him along with Blankenship following the 2010 Upper Big Branch mine disaster.

Blanchard said he did not want to plead guilty in a deal with prosecutors but did receive immunity for testifying.

“I didn’t break any laws, sir,” Blanchard told Taylor.

Jurors get a pay raise

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

The 15 men and women serving as jurors for the trial of former Massey Energy CEO Don Blankenship received a bump in pay today thanks to U.S. District Judge Irene Berger.

In an order filed this morning, Berger directed the clerk to pay each juror an additional $10 per day for the rest of the trial.

According to 28 U.S.C. § 1871(b)(2):

A juror shall be paid an attendance fee of $40 per day for actual attendance at the place of trial or hearing. A juror shall also be paid the attendance fee for the time necessarily occupied in going to and returning from such place at the beginning and end of such service or at any time during such service.

Judge Berger’s latest order now provides each juror $50 a day.

According to the code, if the trial goes beyond 45 days (we are at Day 12 right now), jurors can get an additional $10 a day.

The trial’s jurors are also given a travel allowance and money to cover tolls, according to 28 U.S.C. § 1871(b)(2):

A travel allowance not to exceed the maximum rate per mile that the Director of the Administrative Office of the United States Courts has prescribed pursuant to section 604(a)(7) of this title for payment to supporting court personnel in travel status using privately owned automobiles shall be paid to each juror, regardless of the mode of transportation actually employed. The prescribed rate shall be paid for the distance necessarily traveled to and from a juror’s residence by the shortest practical route in going to and returning from the place of service. Actual mileage in full at the prescribed rate is payable at the beginning and at the end of a juror’s term of service.

Toll charges for toll roads, bridges, tunnels, and ferries shall be paid in full to the juror incurring such charges. In the discretion of the court, reasonable parking fees may be paid to the juror incurring such fees upon presentation of a valid parking receipt. Parking fees shall not be included in any tabulation of mileage cost allowances.

The order is pretty straightforward but if you’re interested in reading it, click here.

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Former Performance Coal Co. President Chris Blanchard, left, leaves the federal courthouse at lunchtime today with his attorney, Alan Strasser. Photo by Joel Ebert.

As the trial continues, there’s been a lot of talk from the Don Blankenship defense team about this memo from former Massey Chief Operating Officer Chris Adkins. The memo outlines a variety of safety initiatives at Massey, including this one:

We required 20,000 cfm [of air] in every last open crosscut of each split of air on the section. MSHA requires 9,000.

Assistant U.S. Attorney Steve Ruby asked former Performance Coal Co. President Chris Blanchard about this today, specifically if that standard was applied at parts of the Upper Big Branch Mine that were having ventilation problems. Blanchard testified that he talked to Adkins about it:

I requested a variance from him for that section and he gave it to me.

Ruby went through the rest of the list of Massey initiatives with Blanchard, and basically Blanchard told jurors that they had not been implemented at Upper Big Branch.

When U.S. District Judge Irene Berger took today’s lunch break, Ruby was still doing his direct examination of Blanchard.

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Chris Blanchard, former president of Massey subsidiary Performance Coal Company, outside the Robert C. Byrd U.S. Courthouse on Thursday. Photo by Joel Ebert.

Massey Energy could have provided adequate staff to clean up violations at the Upper Big Branch Mine for a year with just one day’s worth of revenue from the mine, a federal jury was told this morning.
Chris Blanchard, former president of Massey subsidiary Performance Coal Company, testified that UBB was staffed with about 48 to 50 miners per mining section, compared to 55 to 60 miners per section at competing companies.
“Our sections were staffed more leanly,” Blanchard said in his second day of testimony against Blankenship.
Blanchard said that if UBB had the safe level of staffing as competing mines, the additional workers would have performed safety-related maintenance such as cleaning up coal dust and applying explosion-preventive rock dust.
The additional workers would have cost about $625,000 a year – equal to one day’s worth of UBB coal revenues, Blanchard said.

Jurors in the Don Blankenship criminal cast this morning heard a recording of Blankenship instructing the man who ran the Upper Big Branch Mine on how he should hold the telephone.
Chris Blanchard, the president of Massey’s Performance Coal Company subsidiary, testified that the call was typical of a level of detail Blankenship focused on as Massey’s chief executive.

In another in a series of calls played for jurors, Blankenship twice in a 15-minute discussion scolded Blanchard for holding the phone under his chin instead of in front of his mouth.

“You reckon when you’re talking to your big boy at the mines, that they can’t hear you any better than I could, and maybe they’re afraid to tell you they can’t hear you and that’s the reason they don’t do what you tell them,” Blankenship told Blanchard in the call.

The recording was among several that U.S. District Judge Irene Berger ruled this morning that prosecutors could play for jurors.

Defense lawyers had previously filed a motion to block the additional calls and Berger held a brief – but publicly unannounced – hearing on this issue this morning before the scheduled start time for the day’s trial proceedings.

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

The aforementioned call was previously written about on this blog and in the Gazette-Mail. There’s another blog post on the subject here.

When the government played two audio tapes this morning jurors could be seen leaning forward while listening.

During the following excerpt one female juror could be seen smiling:

Blankenship: You reckon when you’re talking to your people at the mines that they can’t hear you any better than I could and maybe they’re afraid to tell you they can’t hear you and that’s the reason they don’t do what you tell ’em?”

Blanchard: Sir, I, that’s possible.

Blankenship: Hmm.

Blanchard: It would be bad, but it’s possible.

Blankenship: My guess is you hold the phone under your chin instead of in front of your mouth.

Blanchard: I was, sir.

Blankenship: Okay. Bad habit.

To read a portion of the transcript in the aforementioned audiotape, click here and see Exhibit A.

Blanchard expected back on stand tomorrow

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Former Performance Coal Co. President Chris Blanchard, left, leaves the federal courthouse on Thursday afternoon. Photo by Ken Ward Jr.

When the criminal trial of former Massey Energy CEO Don Blankenship closed for the day this afternoon, the man who ran the Upper Big Branch Mine for Blankenship was still on the stand (see here and here for earlier posts on his appearance)  — and former Performance Coal Co. President Chris Blanchard is expected to resume his testimony when court starts up again at 9 a.m. tomorrow.

Assistant U.S. Attorney Steve Ruby questioned Blanchard for about three hours Thursday afternoon, focusing later in the day on asking Blanchard about a series of handwritten Blankenship notes that show the great level of detail with which the former CEO monitored events at Upper Big Branch.

“He was a micro-manager,” Blanchard told the jury.

 

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

Testimony of former Performance Coal Co. president Chris Blanchard continued this afternoon in the criminal trial of Massey Energy CEO Don Blankenship.

At one point during Blanchard’s testimony, Assistant U.S. Attorney Steve Ruby asked Blanchard how much money he earned in 2008 and 2009.

Blanchard told jurors he made about $400,000 a year, including bonuses.

Upon hearing that, the courtroom could clearly hear a reaction from an audience member, who said, “Geeze.”

When the jury was dismissed for the afternoon recess, U.S. District Judge Irene Berger reminded the audience there should be no audible responses to any testimony by any of the witnesses during the trial.

Blanchard’s testimony was scheduled to resume at 3:15 p.m. and is expected to last through the rest of the day.