Coal Tattoo

‘One of the good coal operators’

Jim Justice


Just a few hours before the second and final debate between gubernatorial candidates Jim Justice and Bill Cole — and in the wake of last week’s devastating report about Justice by NPR — the United Mine Workers union is stepping up to defend their candidate. Here’s UMWA President Cecil Roberts in what the union says is a “reality check” on which candidate is best for mine safety:

I read the NPR story regarding the mine safety fines incurred by mines operated by companies that Jim Justice owns. Let me be clear: I believe his company needs to pay any fines it has incurred. My understanding is that those fines are, in fact, being paid right now.

But if we want to talk about which candidate for West Virginia Governor cares more about the health and safety of working miners, let’s make sure the facts are clear. Jim Justice has never questioned the need for mine safety laws and regulations.

The prepared statement from President Roberts went on:

Bill Cole hasn’t just questioned whether we need safety laws for West Virginia miners, he played a key part in slashing the state’s mine safety and health law in 2015. First, the law Bill Cole pushed through the State Senate abolished a commission that was charged with making sure miners weren’t breathing harmful diesel exhaust emissions while working underground.

Bill ColeSecond, Bill Cole agreed with those who thought it was not a problem for miners to have to carry an injured miner 1,500 feet to get to mechanized transportation and then be brought outside for medical treatment. Anyone who has ever walked underground over broken rock and lumps of coal knows how difficult that is at the best of times. Trying to do that over the equivalent of five football fields while rushing to get an injured co-worker to safety is the last thing miners need to be doing.

And third, Bill Cole supported putting miners’ lives in danger by allowing companies to move large equipment around in a mine and putting that equipment between working miners and escape routes if something bad happens. This law was put into place back in the 1970s when miners were killed as a result of this practice. We should never allow something to happen underground that we know has already lead to miners’ deaths. But Bill Cole did.

The UMWA is talking about the legislation described in this story, and which a top union official and state legislator criticized in this op-ed piece, saying:

This extreme legislation loosens coal mining safety regulations to the benefit of big corporations without any regard for worker safety.

Oddly, the UMWA didn’t mention in its statement today that the bill in question was eventually signed by Democratic Gov. Earl Ray Tomblin, over the union’s objections.

Also not mentioned is what happened the following legislative session, earlier this year, when the UMWA actually went along with another coal lobby bill that weakened mine safety protections. That bill also passed, and was signed by Gov. Tomblin. Union officials said they had little choice but to try to reach that compromise bill, fearing the industry — and a Republican controlled Legislature with Cole as Senate President — easily had the votes to pass something worse.

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Jim Justice


Well, our friend Howard Berkes at NPR (along with the good folks at West Virginia Public Broadcasting and the Ohio Valley ReSource) have put together the pieces of the puzzle. Their bombshell this morning on Democratic gubernatorial nominee Jim Justice reports:

… Justice’s mining companies still fail to pay millions of dollars in mine safety penalties two years after an earlier investigation documented the same behavior. Our analysis of federal data shows that Justice is now the nation’s top mine safety delinquent.

His mining companies owe $15 million in six states, including property and minerals taxes, state coal severance and withholding taxes, and federal income, excise and unemployment taxes, as well as mine safety penalties, according to county, state and federal records.

The story continues:

In the past 16 months, while fines and taxes went unpaid, Justice personally contributed nearly $2.9 million in interest-free loans and in-kind contributions to his gubernatorial campaign, according to state campaign finance reports.

Grant Herring, a spokesman for the Justice gubernatorial campaign, said Justice “won’t be doing an interview,” despite multiple requests after NPR provided details of our investigation.

Importantly, the investigation also reports:

Delinquent Justice mines also continue to have worse-than-average safety records, according to NPR’s analysis of MSHA injury and violations data. Our analysis shows that injury rates (for injuries forcing time away from work) are twice the national average and violations rates more than four times the national rate during the years the Justice mines failed to pay penalties.

The Justice fines concern Celeste Monforton, a former MSHA official, mine disaster investigator and lecturer on workplace safety at George Washington University and Texas State University.

“I don’t think we should forget that the reason that he has those penalties is because there were violations and hazards in his coal mining operations,” says Monforton.

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MSHA to miners: ‘Stop and take a breath’

Here’s an announcement just out from the U.S. Mine Safety and Health Administration:

Since October 2015, eight fatalities and more than 1,100 nonfatal accidents have occurred in the nation’s coal mines, resulting in restricted duty, missed days at work, and permanent disabilities for the miners who worked there.  While injury rates have been fairly consistent during this time period, records indicate a trend in accidents resulting in more serious injuries. The circumstances in at least 30 of the accidents might have led to fatalities.

MainMarch2011MSHA continued:

Beginning today, the Mine Safety and Health Administration is issuing a call to safety to coal miners working in underground and surface mines around the country. Inspectors will engage coal miners and mine operators in “walk and talks” through Sept. 30, reminding them to “stop and take a breath” before proceeding with the next task at hand.

The most common outcomes of the more than 1,100 mining accidents – 250 of which occurred at surface operations – were injuries to the back, shoulders, knees and fingers.  In the near-fatal accidents, the majority were attributed to powered haulage, electrical and machinery classifications.

The majority of non-fatal accidents occurred in West Virginia, with 419; Kentucky, with 191, and Pennsylvania, 130.

MSHA chief Joe Main said:

These walk and talks are intended to increase miners’ awareness of recent accidents, encourage the application of safety training and raise hazard recognition.





There’s an interesting op-ed in The New York Times today by civil rights lawyer and author Chase Madar about the use of criminal prosecutions in major public safety disasters. It mentions the Upper Big Branch Mine explosion, and the successful prosecution of former Massey CEO Don Blankenship:

The latest criminal charges of public officials in the contamination of the Flint, Mich., water supply seem righteous. After so much government ineptitude with such hideous consequences — tens of thousands of Flint residents poisoned; elevated blood lead levels in nearly 5 percent of the city’s children, many with possibly irreversible brain damage — surely these criminal charges will bring, at long last, justice for Flint.

Not really. Though these sorts of charges fulfill an emotional need for retribution and are of great benefit to district attorneys on the make, they are seldom more than a mediagenic booby prize. Prosecutorial responses fill the void left when health and safety regulations succumb to corporate and political pressure.

Take the collapse at the Upper Big Branch mine in West Virginia that killed 29 miners in 2010. Flouting safety regulations was an integral part of the corporate culture of the mine’s owner, Massey Energy, and last year its chief executive, Donald L. Blankenship, was convicted of a misdemeanor carrying a one-year sentence. Although some portrayed this as a blow for social justice, it’s difficult to see how it had much impact on mine safety.

Far more significant was the West Virginia Legislature’s passage last year of the Creating Coal Jobs and Safety Act, the first statutory loosening of mine safety standards in state history. While on its deregulatory binge last year, the state almost entirely rolled back aboveground chemical-tank safety standards enacted in response to the Elk River contamination disaster of 2014 – which made the water of 300,000 people undrinkable.

The general point is that criminal prosecutions won’t stop mine disasters, or water pollution, or food contamination — and that the media give far too much attention to criminal trials in these incidents, at the expense of coverage of the many failings of our civil and administrative regulatory systems that are supposed to protect the public. Attorney Madar opines:

Our prosecutorial response tends to be reactive. Volkswagen will pay at least $15 billion for cheating on emissions tests on its diesel vehicles, and may face criminal charges. The tiny research center that caught the discrepancy is now facing cuts to its $1.5 million annual budget.

A well-enforced regulatory regime lacks the TV-movie narrative arc of a criminal trial. But none of these crimes could have been committed if the government had been doing its job properly.

OK. Now one glaring problem with this whole line of thinking is that, while telling readers that these prosecutions are little more than a “mediagenic booby prize”  that we mere news reporters fall for every time, Attorney Madar seems to be getting his information about the glaring holes in regulatory systems that aren’t explained to the public from — that’s right, the mainstream media.

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Bob Murray: MSHA inspections ‘total harassment’



Yesterday, Hoppy Kercheval had Murray Energy CEO Bob Murray on the MetroNews show “Talkline,” ostensibly to talk about the growing financial challenges faced by Murray Energy and the vote coming up on Friday by United Mine Workers of America members on a second contract proposal with Murray.

Murray said, as he has before, that a new contract to replace the UMWA deal that expires at the end of the year, is essential to his company’s survival. The MetroNews summary of his comments went like this:

“The United Mine Workers turned it down last time. It is essential, the approval of it, to complete our four step program to avoid financial default in October,” Murray said.

Murray announced in July that 4,400 employees, 80 percent of his workforce, could lose their jobs. WARN notices were sent out.

But things veered away from that pretty quickly into another attack on the Obama administration and its efforts to better regulate coal mining.  Here’s Murray, responding to Hoppy’s softball questions:

I’ve worked night and day for 29 years building this company and creating these jobs only to have them destroyed by Barack Obama and his excessive regulations. Those regulations are coming out against coal, against the utilization of coal as well as the mining of coal faster than we can read them.

Murray went on:

Talk about harassment. In the first two days of this month, our mines had 89 federal inspectors from the federal Mine Safety and Health Administration run by former UMWA safety man Joe Main. Eight-nine inspectors.

That means I had to take 89 management people off of inspecting the mines, off of doing safety training. It has nothing to do with safety. It is total harassment. Eighty-nine inspectors for 15 mines … All of which are cut back in production because they keep hiring these inspectors. They have nowhere to put them. It’s all harassment. It works against safety. There are so many ways that this federal government, under Obama, which Hilary Clinton has said she will continue trying to drive the coal mines out of business. It has nothing to do with safety. It has to do with eliminating underground coal mining.

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Miner dies after Wyoming County ignition

Mine Explosion


Here’s the information we have so far from the state Office of Miners’ Health, Safety and Training about a West Virginia coal-mining death:

The West Virginia Office of Miners’ Health, Safety and Training confirms Donald Workman of Gilbert, W.Va., died last evening from injuries he sustained from a mine incident that occurred on Friday, July 29, 2016.  The incident occurred at Spartan Mining’s Road fork 51 Mine  Road Fork #51 Spartan Mine in Pineville, Wyoming County.  Mr. Gilbert was a maintenance supervisor at the mine; he was 58 years old. The incident was reported to the Mine and Industrial Rapid Response System at 12:47 p.m. on July 29th

Initial reports indicate there was an ignition in the shaft of this underground mine.  The miner was on the surface at the time of the incident. 

Inspectors from the West Virginia Office of Miners’ Health, Safety and Training are investigating the incident and the cause of the ignition. Further details will be released when the investigation is complete. 

And here’s additional information, just provided by the U.S. Mine Safety and Health Administration:

Coal District 12 was notified that a miner who was seriously injured on July 29, 2016, at the mine listed below, passed away yesterday.  Preliminary information indicates the following:

On July 29, 2016, two miners were performing welding repairs on a dewatering pump located on the surface near a shaft. The miners were welding threaded blocks that would be used to fasten guarding for the shaft.  One miner heard a roaring noise and moved away from the shaft.  The other miner was in the direct line of fire and received 2nd and 3rd degree burns and was transported to a medical facility.  The miner who was not burned said he saw a large blue flame exit the shaft.

How coal miners die on the job

Huff Creek Fatal Photo

U.S. Mine Safety and Health Administration photo

There’s a new report out from the U.S. Mine Safety and Health Administration that spells out the findings of the agency’s investigation into the death earlier this year of Mark Frazier, a miner at Arch Coal’s Huff Creek No. 1 Mine in Harlan County, Kentucky.

Here’s the summary of the report:

Mark FrazierAt 8:16 am, on Friday, March 25, 2016, Mark Frazier (victim) was fatally injured while operating a continuous mining machine in an outby area of the mine. The victim was loading material from a coal transfer chute construction site in the B-Mains No. 3 portion of the mine. A large section of rock rib/brow fell trapping him between the frame of abattery-powered ramcar and the mine floor. The rock rib/brow measured approximately 44 feet in length, 4 feet in width, and 2 feet in thickness. The portion of the rock rib/brow that struck the victim measured 8 feet in length, 4 feet in width, and 2 feet in thickness and weighed over 5 tons.

And here’s a bit of the MSHA description of events leading up to the death:

On March 25, 2016, Mark Frazier, Outby Construction Crew Member and Fireboss, and Brian Napier, Outby Construction Crew Member, entered the mine at approximately 5:00 am and traveled to the coal transfer chute construction site located in the No. 3 entry of the B-Mains No. 3 panel. No coal production was scheduled, but employees were scheduled to work to clean up the coal/rock debris created from the excavation of the transfer chute in an outby area of the mine. Upon arrival at the construction site, Napier began preparing the ramcar for use and Frazier began an examination of the area. In the meantime, Tim Daniels, Outby Construction Crew Member, and Keith Boggs, Mine Examiner, entered the mine. At approximately 5:50 am, Boggs arrived at the transfer chute construction site, boarded a permissible buggy, and began traveling his mineexamination route.  Daniels began the shift by operating a battery-powered scoop to push loose material from the No. 2 entry and adjacent right crosscut toward the transfer chute. There was a short delay in the clean-up process while the feeder was repaired. Frazier operated the continuous mining machine to load out the excavated coal/rock debris into the ramcar operated by Napier. The clean-up process continued until about 25 loads of material were loaded out. At that time, Willard Hickey, First Shift Foreman, arrived at the work site and proceeded to the area of the continuous mining machine.


At 8:16 am, a large section of the rock rib/brow fell from the right rib and trapped Frazier against the ramcar. Hickey was knocked to the mine floor but he was not trapped and not significantly injured.

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Another coal miner killed on the job

Mine Explosion

Here’s the sad news today out of Illinois:

A death investigation is under way after a miner was killed at the New Era Mine in Saline County on Monday, June 7, 2016.

Captain Bill Paterson with the Illinois Department of Mines and Minerals says the man suffered fatal injuries when he was pinned beneath a piece of equipment. Another miner was also hurt and is recovering in the hospital. The names of both of the miners are being withheld until family is notified.

New Era Mine is owned by American Coal.

The New Era Mine is controlled by Murray Energy, and here’s the press statement that company provided today:

The American Coal Company (“American Coal”) confirms that an accident occurred at its New Era Mine, this afternoon, in which an employee of a contractor, David Stanley Consultants, LLC, was pinned beneath a piece of equipment on which he was working. The name of the individual is being withheld pending notification of family members.

UPDATE: The contractor employee is Mr. Robbie E. Clark, thirty-four (34) years old, of Eldorado, Illinois.

This matter is currently being investigated, and we will continue to work closely and diligently with appropriate authorities. American Coal is committed to ensuring that safety remains the absolute highest priority across all of our operations.

Our employees and management are deeply saddened by this tragic event. During this very difficult time, we send our sincerest condolences and prayers to the family and to all those affected by this loss.

This is the fifth coal-mining death listed by MSHA so far this year in the U.S.

UPDATED:  Here’s a statement from MSHA —

Two miners were working with a diesel scoop. They lowered the bucket and put downward hydraulic pressure on the bucket to raise the middle of the scoop up. Both men crawled under the scoop to look at something. The hydraulic pressure slowly released, allowing the scoop to lower onto and trap the two men under it. An examiner heard them yelling and came to the scoop and saw them under it. He put downward hydraulic pressure on it again by lowering the bucket. He got the survivor out and then they got the victim out. CPR was started but the victim could not be revived. 


It is hard to imagine what the families of those 29 miners have been through. Think about it. Your husband or son or brother or father is snatched away — blown away really — stolen from your family in a violent underground explosion.

But it’s not like they just didn’t come home from work one day. You got a terrifying phone call. The phone call mining families have come to fear, but somehow always know could come. And then you spent a couple days in the ritual of waiting and hoping and praying that maybe, just maybe he somehow survived.

But even when that reality hits you, it’s not like you got to just bury him and grieve and try to find a way to live. There were meetings, and hearings and lawsuits. And all of the people from the media — maybe they’re just trying to do their job, but after a while having a microphone in your face gets kind of old.

And then, the CEO of the company who ran the mine that blew up got indicted. Maybe there would be justice, you thought. But then there was the trial. And it seemed like it would never end. And it was confusing — What were all the lawyers talking about up at the judge’s bench? What do all of these objections mean? Are those jurors even paying any attention to any of this?

Finally, though, there was a verdict. But even then — even then — everybody keeps talking about how none of this was really about what happened to him. What happened to all of them. It was about something else, not about what happened to those 29 miners.

Just imagine.

Today is one of those days on the coalfield calendar. Another mine disaster anniversary. There are so many of them.  Two weeks ago, it was Centralia, Illinois. March 25, 1947, 111 miners killed. Later this month, it’s Dola No. 1 in Harrison County. April 25, 1963, 22 dead. Then Federal No. 3, Everettville, W.Va., 97 miners.

Today, lots of people will talk about how they remember, how they’re praying for the families. How they’ll never forget.

I’m sure that’s all true. People do remember, and they do pray. Certainly, those families will never forget. The pain that folks like Gary and Patty Quarles must feel. I can’t imagine. They lost their son at Upper Big Branch. That never goes away. They won’t forget what happened.

But what about the rest of us? How can it be that today, of all days, there aren’t hundreds of people over in front of the Robert C. Byrd United States Courthouse for a protest or a vigil or just a quiet remembrance? Where are all those friends who care so much about our state’s coal miners now? What about the people who had a chance to speak up before all those miners died, and didn’t? What about all of us, who have a chance now to speak up, to do whatever needs to be done to make sure it doesn’t happen again?

Because while today is a day like many others on the coalfield calendar, tomorrow is a quite different sort of day.

Mine Explosion CongressDuring a hearing scheduled to start at 10 a.m., U.S. District Judge Irene C. Berger will sentence that CEO who got indicted. Don Blankenship is really a legendary sort of figure in Appalachia and the coal industry. He was once one of the region’s most powerful men. He’s still one of its richest.

Tomorrow in court, Blankenship will stand convicted by a federal jury of conspiring to willfully violate mandatory mine safety and health standards. He faces up to a year in prison and a $250,000 fine.

It’s a remarkable thing. A historic development. The CEO of one of the region’s largest coal companies was convicted of a mine safety crime after the worst mining disaster in a generation.

It’s true that Blankenship, as the defense makes clear in its recent court filings,  wasn’t charged with blowing up the mine. He wasn’t convicted of causing that explosion, of killing those 29 men.

But what Assistant U.S. Attorney Steve Ruby outlined in his sentencing memo to Judge Berger is also true:

We have known for a very long time what makes coal mines explode. We have known for a very long time how to prevent it. And, sadly, we have known for a very long time that some mine operators will ignore these hard-learned lessons until the law compels them to take notice. The mine safety laws, it is said with good reason, are written in coal miners’ blood.

Defendant knew full well the awful risks, dramatized time and again in ghastly fashion over the years, that he was taking by flouting the mine safety laws at Upper Big Branch. There was no mystery about what poor ventilation meant: buildups of methane that would ignite with the slightest spark. Yet UBB’s miners were left pleading for air. There was no question what accumulations of coal dust meant if not properly treated: a powder keg 1,000 feet below the surface, primed to blow at any time. Yet black dust pervaded the mine, a calamity in the making.

There was nothing the least bit hidden or mysterious about the dangers of how Defendant chose to run UBB. They manifested themselves openly, obviously, to anyone with the most basic knowledge of coal mining, and certainly to Defendant.

Ruby goes on to remind us about Blankenship, and provide more important context:

How does one take the measure of such a crime? Defendant was the chief executive of one of America’s largest coal companies—a multibillion-dollar behemoth with its shares traded on the New York Stock Exchange, a fleet of private aircraft, luxurious board meetings at posh resorts around the country, and vast resources to support its mining operations. He had every opportunity to run UBB safely and legally. Instead, he actively conspired to break the laws that protect coal miners’ lives. Although already fabulously wealthy by the time of the criminal conspiracy of which he stands convicted, Defendant’s greed was such that he would willfully imperil his workers’ survival to further fatten his bank account.

After the trial, some of the Blankenship jurors said that they didn’t know that conspiracy to violate mine safety standards was a misdemeanor. If that’s true, they were just following instructions from the judge — juries aren’t supposed to know potential penalties. They’re just supposed to decide guilt or innocence.

Deciding a just sentence will be up to Judge Berger. And of course, Blankenship’s appeal will be up to the 4th U.S. Circuit Court of Appeals.

Rally For CoalDeciding the potential penalties for a criminal conspiracy that puts miners at risk, though … well, that’s up to Congress. And when was the last time you heard any of West Virginia’s elected officials — either on the state or federal level — talking about the need to change that law, to make mine safety crimes felonies, and provide more serious punishments?

In Washington, our elected officials are way too busy making noise about the U.S. Environmental Protection Agency to do anything about coal-mine safety.

And in Charleston, about the only thing on the mine safety agenda has been  the coal industry bill to weaken mine rescue team requirements and some other safety mandates. Hardly anyone in the Legislature would bother to even ask decent questions about that bill, and Gov. Earl Ray Tomblin doesn’t seem to have hesitated to sign it. None of that is surprising if you remember that Gov. Tomblin’s legislative response to Upper Big Branch was not to crack down on things like coal dust or methane monitoring, but to drug test miners.

It’s hard to escape the words of the late Sen. Robert C. Byrd after the Sago Mine Disaster a decade ago:

I have seen it all before.  First, the disaster. Then the weeping. Then the outrage. And we are all too familiar with what comes next. After a few weeks, when the cameras are gone, when the ink on the editorials has dried, everything returns to business as usual. The health and the safety of America’s coal miners, the men and women upon whom the nation depends so much, is once again forgotten until the next disaster.

Just this morning, both Sens. Joe Manchin and Shelley Moore Capito issued statements to mark the Upper Big Branch anniversary.

Sen. Manchin said:

Six years ago I grieved with the miners’ families, West Virginians and the entire nation during the hours and days after the unspeakable mining tragedy at Upper Big Branch. Today on this sad anniversary, our hearts weigh heavy as we remember the tragic Upper Big Branch Mine Disaster. Not a day goes by that I don’t think about the 29 brave West Virginia miners we lost that day, who went to work and never returned home to their loved ones. I stayed with the miners’ loved ones through moments of hope and despair in the days following the devastating tragedy and saw the unbreakable bonds of family.

No family or community should ever endure a preventable tragedy like the one at Upper Big Branch again and this day reminds us that we always must put safety first. The health and safety of our miners will always be my top priority and I have always been committed to ensuring our miners return home safely every night. Our hearts are still broken and Gayle and I join all West Virginians in honoring those miners’ memories as we grieve their loss and pray for continued strength for their families.”

Sen. Capito said:

It’s hard to believe that six years ago today 29 miners lost their lives in an explosion at the Upper Big Branch coal mine. For many West Virginians, especially those who lost loved ones and friends, the memories from that terrible day are still so fresh in our minds. My heart still aches for the families of the 29 miners whose lives were forever changed on April 5, 2010. As our state continues to heal from this tragedy, I will continue my efforts to protect our coal miners who selflessly put their lives at risk in order to provide for their families and power our state.

No real mention in there of anything either of them has done recently to try to get any sort of mine safety bill, especially one that would toughen the penalties for mine safety crimes, moving in Congress. Thinking about the families and praying for them is obviously worth doing. But trying to divorce the mine disaster completely from the Blankenship case — and especially divorcing the weak state of current criminal laws about mine safety violations — seems to be quite a disservice to the men who died and to their surviving families.

It’s like we feel compelled to remember the Upper Big Branch Mine Disaster, but it’s convenient to at the same time forget how it happened and what needs done to make sure it doesn’t happen again.

So, is Don Blankenship ‘hardly a criminal’?

Mine Explosion Congress

As the public tries to understand how six former Freedom Industries officials received a total of 60 days in jail for contaminating the drinking water for 300,000 people (see here and here for some of my efforts at explaining), some folks have naturally turned their attention to the upcoming sentencing in another of former U.S. Attorney Booth Goodwin’s major white-collar criminal cases

It’s hard not to wonder now whether former Massey Energy CEO Don Blankenship — to borrow a phrase that U.S. District Judge Thomas E. Johnston has now made famous — is “hardly a criminal.”

Like former Freedom officials Gary Southern, Dennis Farrell, William Tis, Charles Herzing, Michael Burdette and Robert Reynolds, Blankenship stands guilty of a crime that the law books list as a “misdemeanor.” A minor offense. A lesser crime (for more on whether crimes that put coal miner safety and health at risk deserve to be felonies, read this).

So when U.S. District Judge Irene Berger sentences Blankenship on April 6 — the day after the sixth anniversary of the Upper Big Branch Mine Disaster — will she let him off with what Blankenship’s critics (and certainly the families of the 29 miners who died at UBB) would consider a slap on the wrist?

Well, it’s true that Judge Berger’s hands are in some ways tied. Congress has made willfully violating a federal mine safety and health standard punishable by only up to one year in prison. And because Blankenship’s jury found him guilty only of conspiracy to willfully violate such standards, his conspiracy crime — normally a felony — is punishable with a maximum of one year in prison. Moreover, the Blankenship jury found him not guilty of the other, felony charges brought against him.

And while it’s true that Judge Berger has already sent four former Massey officials to prison for not insignificant periods of time, those four individuals (former Massey miner Thomas Harrah, UBB security chief Hughie Elbert Stover, UBB mine superintendent Gary May and former Massey unit president David Hughart) all were convicted by a jury or pleaded guilty to felony offenses.

Still, there some significant differences between the Blankenship and the Freedom cases, and they are worth understanding if you’re wondering how the next big sentencing in federal court here in Charleston might turn out. I’ve looked into this a little bit in the last day or so, and I asked Assistant U.S. Attorney Steve Ruby and defense lawyer Bill Taylor for their thoughts. I haven’t heard back from Mr. Taylor, but I’ll share some of AUSA Ruby’s comments below.

First, Blankenship was found guilty by the jury of conspiracy to willfully violate mandatory mine safety and health violations. This is quite different from the negligence and strict liability crimes involved in the water pollution cases against Freedom officials. As Ruby explained:

As you point out, Blankenship was convicted of conspiring to commit willful mine safety violations. The jury also found that his participation in the conspiracy was willful — a second level of willful misconduct, beyond the willfulness of the violations themselves. Willfulness is the highest standard of criminal intent that exists in the law. The difference between the willfulness of Blankenship’s actions, on the one hand, and the negligence and strict liability involved [in] the Freedom convictions, on the other, does distinguish the cases and would weigh in favor of a more severe sentence here.

Second, the federal government has already indicated in a court filing that it believes the advisory guideline sentencing range for Blankenship is 10 to 16 months (generally speaking, when a guidelines calculation produces a sentence which, like this one, ranges above the statutory maximum, that maximum becomes the guidelines range). Prosecutors indicated they believe there are factors that could push the guidelines range even higher, but they won’t yet explain their thinking on that. Ruby said:

We believe that the guidelines range ultimately could be some months higher than the 10- to 16-month range we discussed in our filing, but any difference would likely be a matter only of months, not years. We will decline at this time to discuss the specific enhancement that might increase the range. Given that the minimum range should be 10 to 16 months and the statutory maximum, unfortunately, is a year, we would not expect any difference to have much practical impact.

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

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.

Another coal miner dies on the job

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.

IG: MSHA emergency phone list wrong


While I’ve been focused the last two weeks on the ongoing criminal trial of former Massey Energy CEO Don Blankenship, I also realized the other day that the 10th anniversary of the Sago Mine Disaster is fast approaching.

As most Coal Tattoo readers probably recall, both our reporting on Sago and the McAteer report on the disaster outlined serious issues with mine emergency response systems that played a role in those deaths.  Congress responded with the MINER Act, signed by President George W. Bush, to beef up the nation’s mine rescue infrastructure.

The Department of Labor’s Inspector General has been looking into one aspect of the MINER Act — coal company emergency response plans — and in the process of doing that they discovered this:

We found mine operators were not consistently updating telephone numbers in the local coordination section of the ERP. Moreover, MSHA’s periodic ERP review process has not been correcting this issue.

As part of our audit, we statistically sampled 124 ERPs from mines listed in MSHA’s system as “active” and “nonproducing/active” as of March 27, 2015.1 From those 124 ERPs, we judgmentally selected 51 to verify the accuracy of telephone numbers listed in the local coordination section. From each ERP, we randomly selected telephone numbers that included mine rescue teams, fire departments, hospitals, police, suppliers, mine personnel, and federal and state officials.

We called 779 emergency contact telephone numbers listed in the ERPs, and found many incorrect numbers. We verified our results by calling each of the incorrect numbers on three separate occasions. From these calls, we found:

— 3 mine rescue team numbers were incorrect;
— 98 fire department and ambulance numbers were incorrect;
— 4 hospital numbers were incorrect;
— 3 police department numbers were incorrect; and
— 69 other (e.g., suppliers, federal and state officials, mine personnel, etc.) numbers were incorrect.

In addition, 83 phones were not answered and/or did not offer a means of identification, such as a personalized voicemail greeting. These 83 primarily consisted of numbers listed in the ERPs as fire department and ambulance (35) and other as defined above (45).

In total, 260 (33 percent) of the emergency contacts we tried to reach were incorrect or unidentifiable. Additionally, many of the same emergency contacts were included in more than one ERP. As a result, 44 of the 51 ERPs (86 percent) we tested included at least one incorrect or unidentifiable number.

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MSHA proposes additional proximity detection


Here’s the announcement, just out this morning from the U.S. Mine Safety and Health Administration:

Haulage machinery in underground coal mines – such as shuttle cars, ram cars and scoops – would have to be equipped with technology that prevents miners from becoming struck, pinned or crushed, as per a proposed rule from the Mine Safety and Health Administration.

On Sept. 2, MSHA will publish a proposed rule calling for proximity detection systems on underground coal hauling systems used on the mining section. Proximity detection is a technology that uses electronic sensors to detect motion and the distance between a miner and a machine. These systems provide audible and visual warnings, and automatically stop moving machines before miners are injured.

As most Coal Tattoo readers will recall, MSHA previously finalized a rule to require proximity detection systems on continuous mining machines, and the state of West Virginia issued its own rule to require a phase-in of proximity detection for continuous miners and some other equipment.

Commenting on the latest federal proposal, Joe Main, assistant labor secretary for MSHA, said this morning:

This proposed proximity detection system rule would better protect miners from being crushed or pinned in the confined underground mine spaces where large equipment is constantly in motion. It is an important component of the department’s ‘Plan, Prevent and Protect’ strategy for safeguarding all workers.

An advance copy of the rule, scheduled to be published tomorrow in the Federal Register, is available here.

Mine Explosion Congress

Late last Friday, the defense lawyers representing former Massey Energy CEO Don Blankenship filed a motion asking to keep the jury in Blankenship’s criminal trial from hearing any evidence about the April 5, 2010, mine explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.

We published a story that evening online and in the next day’s print edition about the filing, and I’ve posted the court document here.

One of the things I noticed initially about this filing was the little dig Blankenship’s lawyers got in about media coverage of the case:

Not only will every juror know about the UBB explosion, many jurors will bring to this trial the misimpression that this case is about Mr. Blankenship’s responsibility for the UBB explosion. That mistaken belief would have been formed and reinforced repeatedly by the media and interactions in the community. From day one, the local press has covered these proceedings, erroneously, as intended to determine Mr. Blankenship’s responsibility for the UBB tragedy.

The first story cited as an example of this “erroneous” reporting was a piece I wrote for the anniversary of the disaster.  It was headlined, “Upper Big Branch 5-Year Anniversary: Blankenship’s trial is focus of families,” and it says very clearly:

While the allegations against Blankenship focus on events at Massey’s Upper Big Branch Mine, in Raleigh County, prosecutors stopped just short of alleging the former CEO was responsible for the deadly explosion.

The other thing I noticed was that, while Blankenship’s defense team doesn’t want the jury to hear evidence about what happened at Upper Big Branch, they go to great lengths to insist that, if the subject comes up, they can convince jurors that Blankenship’s theories that those 29 miners died in a “natural disaster”:

… Evidence from the government regarding causation and responsibility for the UBB explosion would be met by strong evidence from Mr. Blankenship rebutting the government’s theories, leading to confusion about the actual issues and to undue delay – a satellite mini-trial about the cause of the UBB explosion and who is responsible for it. If the cause of the explosion is at issue in the trial, the defense is ready to present substantial, compelling evidence that the incident was actually a natural disaster.

It does make you wonder why, if their case on the cause of the disaster is so good, Blankenship’s lawyers wouldn’t want to just go right down that road at trial.

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Another miner killed on the job

Mine Explosion

The Associated Press has the bad weekend news from Pennsylvania:

Authorities say a coal miner was killed  over the weekend in an accident at a mine in southwestern Pennsylvania.

The Greene County coroner’s office says 55-year-old John Kelly of Albright, West Virginia died shortly after 1:30 a.m. Sunday in the emergency room at Southwest Regional Medical Center.

Authorities said Kelly had been injured while working at a mine in Mount Morris.

The coroner’s office said preliminary information indicates that he was injured by “some type of air shaft/mine door coming down upon him.”

The cause and manner of death are pending a final autopsy.

West Virginia Public Broadcasting had additional details:

At approximately 12:15 AM on June 28, 2015, John William “Bill” Kelly, 55 years old, of Albright, West Virginia a long-term employee of Mepco, LLC, was fatally injured. According to a release from Mepco, Kelly died in an accident at the Company’s 4 West Mine located near Mount Morris, Pennsylvania.

This is the 8th coal-mining death in the U.S. this year.



Over the weekend, The New York Times published an interesting West Virginia Day offering:  A lengthy story about former Massey Energy CEO Don Blankenship. The story dug deep into the archives of various Blankenship controversies, and understandably made much about the big trial that’s coming up in October.

The story was what folks in the business call “a good read,” and obviously a lot of folks with a keen interest in all things Blankenship and in the pending criminal case (myself included) were posting the link and commenting on it through various social media outlets.

But gosh, the story got the number of counts and the potential sentence that Blankenship faces wrong, with the Times apparently being unaware of the superseding indictment that consolidated the charges into three felony counts and trimmed one year off what what was originally a 31-year maximum sentence.

Frankly, I was a little surprised that the Times did this particular piece, given that many of the same themes — especially how unusual it is in these parts for a coal CEO to be held accountable through a criminal trial — were covered in a previous piece the Times did shortly after the original indictment back in November 2014.

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Shocked that Gov. Tomblin sided with coal lobby?

Special Gubernatorial Primary Election

A funny thing happened as this year’s West Virginia legislative session comes to an end … Gov. Earl Ray Tomblin had a choice between siding with coal miners and coal operators, and he went with the operators.

What’s most incredible about that is the headline on the press release from the West Virginia AFL-CIO, in which that group’s president, Kenny Perdue, called the governor’s approval of the “safety rollback” legislation “shocking”:

In his long career as a lawmaker, Governor Tomblin had always worked to adopt laws that help protect coal miners – until now. Senate Bill 357 is a disappointing step backward in mine safety, and I had hoped the Governor would veto the legislation.

How soon they forget … It wasn’t so terribly long ago that Governor Tomblin offered a fairly weak mine safety bill in response to the state’s worst coal-mining disaster in a generation. And the cornerstone of that bill was an industry pet proposal to drug test coal miners, despite the fact that there was no link at all between drug use and those 29 miners getting blown up at Upper Big Branch.

And if that weren’t enough, the legislation was further weakened in a backroom deal with coal industry lobbyists, and then the Tomblin administration did its best to avoid and delay any real enforcement of the few reforms included in that bill.

So I guess when I hear that a top state labor leader is shocked that Governor Tomblin signed legislation drawn directly from the West Virginia Coal Association’s legislative agenda, well, it reminds me of that great scene from Casablanca:

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Read all about the Don Blankenship case

Mine Explosion

As we’ve done more stories (see here and here) about the legal filings in the Don Blankenship criminal case — unsealed thanks for a coalition of media organizations and our lawyers — I’ve tried to post and include links to many of those filings. But for those who want to dig in a little more, here are links to what are — at least for now — the most important filings, the various pre-trial motions filed by Blankenship’s legal team and the responses from U.S. Attorney Booth Goodwin’s office.

First, here are the original indictment and the superseding indictment. And for those who want to follow along, Blankenship’s legal team filed a helpful “Memorandum to the Court” that listed and numbered their pre-trial motions. I’ve actually posted the legal briefs in support of each motion, rather than the motions themselves, because the briefs are actually much more informative. I haven’t yet posted the defense replies to the government responses, I have added the defense replies to government responses, and but I hope to add those and other documents to this post as time permits. As you can see, several documents remain under seal, despite the 4th Circuit Court of Appeals order in our favor.

— Motion No. 1 — Motion to Disqualify This Court and All the Judges of the United States District Court for the Southern District of West Virginia.  Response from the government. Defense reply brief.

— Motion No. 2 — Motion to Revoke Order of Reference to Magistrate.  Response from the government. Defense reply brief.

— Motion No. 3 — Motion to Transfer to Another District for Trial (STILL UNDER SEAL). Response from the government. Reply brief by defense is SEALED.

— Motion No. 4 — Motion to Dismiss for Vindictive and Selective Prosecution of Donald L. Blankenship for Exercising His First Amendment Rights. Response by the government.  Defense reply brief.

— Motion No. 5 — Motion to Dismiss for Improper and Misleading Conduct before the Grand Jury (This document, number 84 on the court docket, was initially unsealed after the 4th Circuit ruling, but is no longer available on the court’s PACER system). Response by the government (STILL UNDER SEAL). Defense reply brief.

— Motion No. 6 — Motion to Dismiss Count One for Failure to State an Offense. Response by the government. Response by the government to defense MOTIONS 6-15. Defense reply brief.

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First W.Va. mining death of 2015 reported

Mine Explosion

The sad news overnight came from Marshall County, West Virginia. According to the state Office of Miners’ Health, Safety and Training:

The West Virginia Office of Miners’ Health, Safety and Training is investigating a fatal incident that occurred Sunday evening, March 8, 2015, at the McElroy Mine in Marshall County. Preliminary reports cite three miners were injured, one fatally. State investigators are on site and will provide updates as they become available.

As Coal Tattoo readers know, McElroy is one of the large underground operations that Murray Energy bought in 2013 from CONSOL Energy. This is the 3rd coal-mining death in the U.S. so far in 2015 and the 1st in West Virginia, according to the U.S. Mine Safety and Health Administration.

The Wheeling paper was reporting this morning:

The coal miner who died late Sunday following a roof collapse at the Marshall County Coal Co.’s Marshall County Mine near Cameron has been identified as John M. “Mike” Garloch of Neffs, a management employee.

Murray Energy Corp., the parent company of the Marshall County Coal Co., confirmed Garloch’s death early this morning. Two other people were injured in the collapse and have not yet been identified. Murray’s statement did note that both injured miners were conscious, with one being air lifted to Morgantown and the other transported to Wheeling Hospital.

“The Marshall County Coal Co.’s employees and management send their sincere condolences and prayers to the Garloch family,” the company statement said.