Coal Tattoo

Labor finalizes black lung benefit rule

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Here’s the announcement today from the U.S. Department of Labor:

The U.S. Department of Labor’s Office of Workers’ Compensation Programs today issued a final rule to strengthen safeguards for the health of coal workers. The rule makes significant revisions to the regulations implementing the Black Lung Benefits Act that will give miners greater access to their health information, bolster the accuracy of claims decisions, and require coal mine companies to pay all disability or survivor’s benefits due in a claim before modification can challenge the award.

As readers know, this rule comes after Chris Hamby’s Pulitzer Prize-winning expose about how doctors and lawyers worked to keep miners from getting their benefits.

You can read the final rule here.

Jury indicates they remain deadlocked

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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.

Jury sends note seeking clarification

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Jurors in the Don Blankenship trial this afternoon asked U.S. District Judge Irene Berger to define for them the words “condone” and “strive.”

Berger said the jury sent her a note asking for more information about those words, which are at the heart of two of the three felony counts pending against Blankenship.

Blankenship is charged with making a false statement and securities fraud based on the statement Massey Energy issued after the Upper Big Branch mine disaster, saying the company did not condone mine safety violations and strove to be in compliance with all laws at all times.

Berger called lawyers and the jury into the courtroom shortly after 2:30 p.m. and told the jury she had given them all of the legal instructions she could related to those counts of the indictment.

Berger also explained that the 30-minute closed-door session this morning was held so she and the lawyers could question two jurors who reported that they had been approached by a member of the media. Berger said the jurors did not talk to the media representative, and she asked news reporters to stay away from jurors while they are deliberating.

Berger said she plans to call the jury back in before the end of the day Friday and advise them that, if they have not reached a verdict by then, she would give them the Friday after Thanksgiving off, and probably the Wednesday before off as well.

Judge Irene Berger’s courtroom was closed this morning to media and families, who waited in the hall while the jury deliberated. Berger then called for the lawyers in the case to meet with her privately in the courtroom. Prosecutors arrived quickly, since they were in the building, followed a short while later by Blankenship and his attorneys. The meeting is ongoing. A U.S. marshal refused our request to deliver a note of protest to the judge regarding the closed meeting.

Annotated closing arguments

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This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

During closing arguments, attorneys for the prosecution and defense used a plethora of exhibits to make their case. I’ve slowly been adding links to those exhibits to the official transcript.

Over the next day or two I hope to add a few more links to the document but for now, you can check out an annotated version of the transcript here –

The jury in the Don Blankenship case was told to continue deliberating after telling the judge this morning that it “cannot agree” on a verdict.

U.S. District Judge Irene Berger said she received a note at about 11:30 a.m. from the jury that said, “How long do we deliberate? We cannot agree.”

Berger told the jurors that given the length of the trial, the number of witnesses and the limited amount of time they had so far deliberated, that she wanted them to continue their deliberations.

After giving the jury that order in open court, the judge released the eight women and four men for lunch shortly before noon.

Berger denied a request from defense lawyer Bill Taylor for a mistrial.

Jurors resume deliberations

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Jurors in the Don Blankenship trial resumed deliberations this morning on the charges against the former Massey CEO.
U.S. District Judge Irene Berger sent the eight women and four men back to the jury room shortly after 9 a.m. Wednesday. Berger told jurors to knock on the door of the jury room to alert a court security officer if they wanted to take a break.
After jurors left the room, Berger told attorneys for both sides that her clerk would alert them when the jury returns. Defense lawyer Bill Taylor asked the judge if the parties should return at lunchtime to see if the jury is taking a break. Berger said she didn’t see a need for that because “I’m letting them decide if they will take a break.”

Afternoon update: Goodwin completes closing arguments

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Jurors in the Don Blankenship criminal trial took a brief break this morning after U.S. Attorney Booth Goodwin completed the first portion of the government’s closing argument.
The jury will hear next from lead defense lawyer Bill Taylor.

In his closing, Goodwin tried, among other things, to reduce the impact of testimony that former Massey official Chris Blanchard, a government witness who provided much helpful testimony to the defense during his cross examination.

Goodwin referred to Blanchard repeatedly as one of the “yes men” who did Blankenship’s bidding. Goodwin also said Blankenship was obsessed with “flashy things” — like reflective clothing for miners — more than spending money on miners to keep up with safety laws.

Inside the courtroom, the gallery remained at full capacity. People who were trying to get in and watch were directed to an overflow room with a televised video feed of the proceedings. That room contained about 20 people at one point, including U.S. District Judge Joseph R. Goodwin, Booth Goodwin’s father.

Booth Goodwin took about an hour and 15 minutes of the two hours allotted to the government for closing arguments, saving 45 minutes for rebuttal.

U.S. Attorney Booth Goodwin told jurors this morning that former Massey CEO Don Blankenship operated Massey’s Upper Big Branch as “an outlaw” mine that deliberately violated safety laws to run coal.

“The defendant, Donald L. Blankenship, ran a massive, massive criminal conspiracy,” Goodwin said, pointing across the courtroom to where Blankenship sat at the defense counsel table.

Goodwin began his opening statement after jurors heard more than an hour of legal instructions from U.S. District Judge Irene Berger.

Goodwin showed jurors slides with quotes from the now-famous memo outlining the safety concerns raised by former Massey official Bill Ross.

And, in explaining to the jury that the conspiracy Blankenship is charged with, Goodwin reminded jurors that the agreement to conspire did not have to be spoken. Goodwin said Blankenship did not have to be aware of every act committed to further the conspiracy. He compared that to a drug kingpin not needing to know the details of every street corner deal.

“He was the kingpin,” Goodwin said, pointing at Blankenship again.

Goodwin showed jurors photographs of the many former UBB miners who testified at the trial about terrible working conditions at the Raleigh County mine. Goodwin also played again for jurors recordings of Blankenship’s phone calls. Goodwin reminded jurors, for example, that defense lawyers have tried to blame safety problems on federal mine safety and health administration inspectors, but Blankenship himself said in one phone call that if it were not for MSHA, “we’d blow ourselves up.”

Joel Ebert adds: As of 10:45 a.m., Goodwin was still making his opening statements in front of a gallery with 64 people watching. Both the defense and the prosecution have been given two hours to complete their closing arguments. An overflow room has been opened where closing arguments are being televised for those who wish to watch.

Defense lawyers for Don Blankenship alleged this afternoon that the federal government may have destroyed records that are important to the former Massey CEO’s case.

Bill Taylor, Blankenship’s lead defense lawyer, pointed to a statement that former Massey ventilation supervisor Bill Ross gave during a public records lawsuit several years ago against MSHA, that his former secretary at the agency told him documents from the ventilation department had been destroyed.

Defense layers apparently made a motion about the issue Wednesday, but the precise nature of that motion was unclear because it was made during a private bench conference.

After sending jurors out of the courtroom for a break, U.S. District Judge Irene Berger questioned Ross briefly about the matter. Taylor later explained to the judge that the controversy relates to a history of methane “outbursts” at the Upper Big Branch mine during the disaster probe, then-MSHA district manager Bob Hardman discovered records about those incidents slipped under his door.

Blankenship argues the mine disaster was caused by an uncontrollable methane outburst. Four independent and government investigations have disagreed with that argument — and Berger has said the cause of the disaster isn’t at issue in Blankenship’s trial.

Taylor, though, said that the Ross statement in Massey’s lawsuit against MSHA raises questions about whether documents the defense is entitled to were destroyed. Taylor noted that the defense has repeatedly complained that MSHA has not complied with the defense’s document request.

Morning update: Ex-Massey official describes plea deal

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This is an update Ken wrote while in court this morning.
Former Massey Energy official David Hughart remained on the stand for cross examination from Don Blankenship’s defense lawyer, Blair Brown.
Brown asked Hughart questions about a series of memos and emails in which Blankenship and other Massey officials pressed mine managers like Hughart to improve safety conditions and reduce Massey’s violations.
“You have to develop a plan to deal with this,” Blankenship said in one May 2009 document. “Do your job.”
Also Friday, U.S. District Judge Irene Berger allowed Brown to question Hughart about an incident the day before Hughart met with prosecutors to discuss a potential plea deal on mine safety charges.
Hughart admitted he was detained by police that day after he bought 120 painkillers he planned to use and distribute.
Hughart admitted he was never charged in that incident and subsequently entered into a plea deal with U.S. Attorney Booth Goodwin in which he agreed to testify against Blankenship.
On redirect by Assistant U.S. Attorney Greg McVey, Hughart testified that he had previously been injured in a mining accident and was prescribed painkillers when that injury flared up. He said he became addicted to the pills after being on them for a period of four to five months.
Hughart said he received 10 months off his original 42-month sentence after completing the U.S. Bureau of Prison’s drug treatment program.

Judge will release Blankenship trial exhibits

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In an apparent win for public and media access, U.S. District Judge Irene Berger has told lawyers in the Don Blankenship case that she will grant a motion from the Charleston Gazette-Mail and West Virginia Public Broadcasting for daily access to trial exhibits that are shown to jurors.

During a court session on Thursday morning, Berger noted that she had received the media motion, which referenced a 4th Circuit Court of Appeals ruling mandating such access to exhibits and said she wanted to comply with that ruling in Blankenship’s case.

The judge told prosecutors and defense attorneys that they should provide a copy of all exhibits for the media by 9 a.m. the day after those exhibits are used in court.

Also, Judge Berger told both sides that they had until the close of business today to file any response to the media motion asking that the jury selection be opened to the public and the press.

That’s all according to a review of a transcript of Thursday’s court session, which was briefly available for viewing on a public computer terminal at the clerk’s office at the federal building here in Charleston.

The Upper Big Branch Mine Disaster: April 5, 2010

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Carl Calvin Acord

Jason Atkins

Christopher Bell

Gregory Steven Brock

Kenneth Allan Chapman

Robert E. Clark

Cory Thomas Davis

Charles Timothy Davis

Michael Lee Elswick

William Ildon Griffith

Steven Harrah

Edward Dean Jones

Richard K. Lane

William Roosevelt Lynch

Joe Marcum

Ronald Lee Maynor

Nicholas Darrell McCroskey

James E. “Eddie” Mooney

Adam Keith Morgan

Rex L. Mullins

Joshua Napper

Howard D. Payne

Dillard Earl Persinger

Joel R. Price

Gary Wayne Quarles

Deward Allan Scott

Grover Dale Skeens

Benny Ray Willingham

Ricky Workman

First coal-mining death of 2015 reported

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Mine Explosion

The sad news came from the coalfields of Pennsylvania:

A Somerset County man died in a coal mining accident at Brubaker Mine in Hooversville, the first such death in the country this year.

Rick Kline, 43, of Central City was trapped between the continuous mining machine he was operating and a rib of the mine about 6:30 p.m. Wednesday, according to a statement from LCT Energy, the company operating the mine.

MSHA’s preliminary report is available here.


The Sago Mine Disaster, Jan. 2, 2006

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It was 9 years ago this morning that an explosion ripped through International Coal Group’s Sago Mine in Upshur County, W.Va. Twelve miners died and another barely got out alive.

Miner Randal McCloy Jr. survived, and the miners killed were:

Tom Anderson, Terry Helms, Marty Bennett, Martin Toler, Marshall Winans, Junior Hamner, Jesse Jones, Jerry Groves, James Bennett, Jackie Weaver, Fred Ware, and David Lewis.

Investigators said the deaths were avoidable, and a report by Davitt McAteer’s team had plenty of blame to spread around.

This just in this morning:

Jeff KesslerSenate President Jeff Kessler (D-Marshall) is calling on residents and leaders of this great state to envision a revitalized southern West Virginia.

President Kessler announced today he is forming a Senate task force as part of the SCORE initiative.  SCORE, Southern Coalfields Organizing and Revitalizing the Economy, aims to give southern West Virginia much-needed opportunities to diversify the economy and strengthen our families and communities.

“Southern West Virginia has become a region stricken with a lack of opportunity and hope,” says Kessler. “It’s time to change our way of thinking so that it can once again become a region that offers our children and grandchildren opportunities for a better future. It is not impossible to envision a renewed Southern West Virginia.”

SCORE was inspired by Kentucky’s SOAR initiative which stands for Shaping our Appalachian Region.  The goal of SOAR is to revitalize Eastern Kentucky, an area facing many of the same challenges as Southern West Virginia.

“Layoffs and mine closings have become almost routine events,” says Kessler. “This is a time when communities need and deserve serious attention and action from our government officials.  It’s one thing to say that we care about these communities. It’s something else to push for a new way of thinking in order to address the issues facing them.”

Topics for consideration by the SCORE initiative include:

  • Increase funding for tourism advertising and development
  • Education and workforce development and retraining initiatives
  • Dedicating monies for viable redevelopment projects
  • Agribusiness and rural development opportunities
  • Increase Broadband access
  • Expanding and supporting intermodal transportation
  • Explore development of coalbed methane reserves
  • Support clean coal research and development

Continue reading…

Happy Labor Day

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Ukrainian coal miners sit on a bus after finishing their shift at a coal mine outside Donetsk, Ukraine, Tuesday, May 20, 2014. While steel workers in Mariupol joined anti-separatist actions supported by the management of the plants, miners refused to take part in a planned protest against the Donetsk People’s Republic. (AP Photo/Vadim Ghirda)

Jay Rockefeller

Here’s the statement just issued by Sen. Jay Rockefeller, D-W.Va., regarding today’s EPA proposal on carbon pollution from power plants:

The EPA announced today a major step in reducing carbon emissions, and I support its goal of safeguarding the public’s health.  Strengthening West Virginians’ health and well being has always been at the heart of my career in public service.

I understand the fears that these rules will eliminate jobs, hurt our communities, and drive up costs for working families.  I am keenly focused on policy issues that affect West Virginians’ health and their livelihoods.  However, rather than let fear alone drive our response, we should make this an opportunity to build a stronger future for ourselves.  West Virginians have never walked away from a challenge, and I know together we can create a future that protects our health, creates jobs, and maintains coal as a core part of our energy supply.  Already, we’ve seen successes with clean coal technology in West Virginia, and countries around the world are innovating to reduce carbon emissions from coal.  We have the brightest minds and the competitive spirit to solve this challenge – but achieving this goal means finding the political will to invest real federal dollars in clean coal technology rather than continuing to rely solely on the private sector.

The threat that climate change and unhealthy air pose to all of our futures cannot be understated.  And, the costs of inaction are far greater than the costs of action.