Coal Tattoo

Media challenges Blankenship case gag order

Mine Explosion

For Coal Tattoo readers who have been asking if the local or national press would challenge the broad gag order issued by U.S. District Judge Irene Berger in the Don Blankenship criminal case, here’s the answer:

The Charleston Gazette and four other news organizations today urged a federal judge to withdraw a gag order that has blocked access to court records in a criminal case filed against longtime Massey Energy CEO Don Blankenship.

Joining in the legal action in federal court in Beckley were the Gazette, The Wall Street Journal, The Associated Press, National Public Radio and the Friends of Public Broadcasting.

The media coalition asked U.S. District Judge Irene Berger to reconsider her order, which also prohibits parties in the case, potential trial witnesses, and potentially families of the victims of the Upper Big Branch Mine Disaster from talking to the media.

I’ve posted a copy of the legal filing by media lawyer Sean McGinley here.

Gag order in Blankenship case criticized

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We reported in in yesterday’s Gazette about U.S. Magistrate Judge R. Clarke VanDervort refusing a request from longtime Massey Energy CEO Don Blankenship to delay his arraignment on the criminal indictment filed against Blankenship last week. But we weren’t able to explain why the judge did so. If you go to the U.S. District Court for the Southern District of West Virginia‘s PACER computer page, and try to download the judge’s order, this is what you see:

pacer screen

It’s a bit ironic that PACER stands for “Public Access to Court Electronic Records,”  given that records of the U.S. vs. Blankenship are anything but public. Even the indictment — which was initially posted publicly and distributed via email by U.S. Attorney Booth Goodwin’s office, has been removed from public view. Goodwin’s office, apparently worried about violating the judge’s gag order, removed both its press release — a document that merely quoted the indictment and didn’t include any direct quotes from Goodwin — and the indictment from its website. We’ve posted the press release here and the indictment here.

judgebergerIn fact, even U.S. District Judge Irene Berger’s gag order isn’t available to the public through PACER. The clerk’s office in Beckley did finally email copies of it to local media outlets, and we’ve posted it here.  These two sentences — which contain no citations to case law allowing such a gag order — are the only explanation we have of the judge’s action:

The Court observes that the Defendant and the matters which are referenced in the indictment have been the subject of publicity. After careful consideration and in light of the prior publicity, the Court finds it necessary to take precautions to insure that the Government and the Defendant can seat jurors who can be fair and impartial and whose verdict is based only upon evidence presented during trial.

It’s worth noting that neither the government nor Blankenship’s defense team asked for this gag order. The judge did it on her own. And now, she’s taking some criticism for it.

In an editorial that generally praised the government for pursuing this prosecution, the Lexington Herald-Leader said:

The judge’s stated concern is that potential jurors will be biased by pre-trial publicity. But seating an impartial jury can be accomplished without trampling the First Amendment rights of individuals to speak and the media to report the news.

Transparency is especially critical to public trust in the prosecution of Blankenship because of his history of influencing the courts.

Blankenship in 2004 spent $2.5 million on electing a judge to the West Virginia Supreme Court who then cast deciding votes in Blankenship’s favor in a potentially expensive lawsuit, a ruling the U.S. Supreme Court eventually overturned.

Berger should revoke the gag order.

And over at West Virginia MetroNews, Hoppy Kercheval wrote a commentary headlined, “Judge Berger’s gag order in Blankenship case goes too far,” in which he wrote:

Berger is in a tough spot. She’s presiding over a high profile case. Blankenship faces four charges connected with the operation of the Upper Big Branch mine in Raleigh County where 29 miners died in a 2010 explosion.

The disaster, and Blankenship himself, have been the subject of intense public interest, and thus extensive press coverage.  If the case comes to trial it will draw national attention. Still, West Virginia Press Association executive director Don Smith believes the judge overreached.

“We certainly understand Judge Berger’s position and her concerns about seating a jury, but locking down all the information, all the court records… that goes too far,” Smith told me on “Talkline” Tuesday.

Hoppy continued:

More practically speaking, the gag order in the Blankenship case won’t stop pre-trial coverage, but it may distort it, says the First Amendment Center’s Gene Policinski. “It’s going to take the most informed people out of the discussion,” Policinski told me. “You’re condemning the public to less informed, but not less voluminous coverage.”

Trials, and proceedings leading up to them, are public, with some limited exceptions. That’s guaranteed in the Sixth Amendment, and for good reason. The bright light of openness helps preserve and protect public confidence in the judicial system.

Irene Berger is an experienced and respected adjudicator on the federal bench. Her desire to conduct a fair and impartial proceeding in this case is unquestioned. However the judge should have the same level of respect for the press and the public’s ability—and their right—to follow the Blankenship case unfettered.

5 more things about the Don Blankenship indictment


Gazette file photo by Chip Ellis

There’s been a lot written already about the indictment of longtime Massey Energy CEO Don Blankenship (see here, here, here and here for Gazette stories), but there are a few things that readers may have overlooked and are worth knowing:

1.  Prosecutors did not charge Blankenship with actually causing the April 5, 2010, explosion that killed 29 miners at Massey’s Upper Big Branch Mine.

Certainly, the 43-page grand jury indictment mentions the mine disaster, and it alleges that Blankenship was personally an “operator” of the mine who took part in a conspiracy to violate key safety standards that four different investigations (see here, here, here and here) said led to the explosion. But U.S. Attorney Booth Goodwin and Assistant U.S. Attorney Steve Ruby stopped just short of blaming Blankenship, of alleging that blowing up the mine was one of his crimes.

Doing so avoids any eventual criminal trial turning into a “battle of experts,” and may remove some of the ability of Blankenship’s defense team to trot out his much-promoted theory that the explosion was basically an “act of God,” caused by an unforeseeable inundation of natural gas.  Also, U.S. District Judge Irene Berger has not exactly been impressed thus far with the testimony of U.S. Mine Safety and Health Administration witnesses in previous Upper Big Branch cases (see here and here), and in at least one previous coal-mining disaster cases, the MSHA experts on explosions certainly could have done better.

2.  Financial crimes carry much longer maximum sentences than those for violating workplace safety standards.

Most news reports made clear that the total maximum sentence Blankenship would face if convicted on all four counts of the indictment would be 31 years. Of course, that’s the statutory maximum, and if doesn’t take into account federal sentencing guidelines.  But it hasn’t really been made clear that 20 years of that 32-year maximum sentence would come from Count 4 of the indictment, which charges Blankenship with a violation of 15 U.S.C. 78ff. The count alleges that Blankenship made untrue statements to the investing public when Massey defended its corporate safety record after the mine disaster.

Two other counts of the indictment — Count 2 charging Blankenship with conspiracy to defraud MSHA by advance notice of inspections and Count 3 charging him with making false statements to the U.S. Securities and Exchange Commission — each carry maximum jail sentences of 5 years. The allegation that actually involves unsafe mining practices is Count 1, which alleges a conspiracy to violate federal mine safety standards.  It carries a maximum sentence of 1 year in jail.

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Yesterday’s blockbuster news that U.S. Attorney Booth Goodwin had obtained a grand jury indictment of longtime Massey CEO Don Blankenship had me thinking again about the discussions I used to have with a former coal industry publicist about the huge numbers of mine safety violations some mining operations across the country routinely run up every year.

The discussion went something like this:  There’s a fatality at a mine, and in covering the story, we would mention the number of violations cited at that operation the previous year by the U.S. Mine Safety and Health Administration.  The numbers would almost always be large — especially if it was a big underground mine. Sometimes it would be literally hundreds of violations. My industry source would say it was unfair to publish those numbers without more context about the types of violations. I would respond by saying that the public should understand just how often mine companies don’t follow the rules. Eventually, things might get around to the fact that some in the mining industry say it’s simply impossible to run a coal mine, particularly a large underground one, without routinely getting written up by MSHA.

I bring this up today, as everyone is digesting what could be a historic turn of events, because at some point — probably after quite a long and complicated fight among the lawyers — if this case ever gets to a trial, there’s kind of a threshold question that the jury will face. And it’s a question that West Virginians more broadly need to figure out: Is it really acceptable for coal companies to routinely violate the law?

That issue is at the heart of the indictment that Goodwin and Assistant U.S. Attorney Steve Ruby got from a grand jury that met this week in Charleston. Here’s part of the indictment:

During the Indictment period, UBB was cited approximately 835 times for violations of mandatory federal mine safety and health standards … Approximately 319 of these violations were in an especially serious category of violations: those that could significantly and substantially contribute to the cause and effect of a safety or health hazard. Approximately 283 of UBB’s safety-law violations during the Indictment Period wee violations of the laws on mine ventilation, which operate to prevent explosions and fires in coal mines and to minimize deaths and serious injuries in the event an explosion or fire does occur. Approximately 59 of UBB’s safety law violations during the Indictment Period resulted in shutdown orders closing all or part of the mine until the violation was abated …

So yes, these were serious violations, and Upper Big Branch was a particularly problematic mine. But we also know that what can seem like little violations can turn into big violations, and that almost every time a coal miner is killed on the job, it’s because the company he worked for violated the law. And if you can turn your attention away from the Blankenship case long enough to check out the great work that Howard Berkes, Ellen Smith and others at NPR News and Mine Safety and Health News have done, it’s pretty obvious that plenty of coal operators don’t even have to count safety fines as part of the cost of doing business — because nobody ever makes them pay up.

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Don Blankenship indicted

Mine Explosion Congress

If you haven’t heard the latest, here’s the big coal news today from West Virginia:

Don Blankenship, the longtime chief executive officer of Massey Energy, was indicted Thursday on charges that he violated federal mine safety laws at the company’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners.

We’ve posted a copy of the indictment on the Gazette’s website, and here’s a summary of narrative it lays out:

Blankenship knew that UBB was committing hundreds of safety-law violations every year and that he had the ability to prevent most of the violations that UBB was committing. Yet he fostered and participated in an understanding that perpetuated UBB’s practice of routine safety violations, in order to produce more coal, avoid the costs of following safety laws, and make more money.

Also on the Gazette website, my coworker Kate White has a story with what some of the families of the miners who died at Upper Big Branch are saying today. We’ve also got a timeline of major events since the April 5, 2010, disaster, and a summary of convictions so far in the federal probe.

R. Booth Goodwin, Steve Ruby You can read U.S. Attorney Booth Goodwin’s (left, with Assistant U.S. Attorney Steve Ruby)  short and to-the-point statement about the indictment here.

Bill Taylor, Blankenship’s attorney had this to say in a prepared statement:

We were notified today that our client Don Blankenship has been indicted in the Southern District of West Virginia. Mr. Blankenship is entirely innocent of these charges. He will fight them and he will be acquitted.  Don Blankenship has been a tireless advocate for mine safety. His outspoken criticism of powerful bureaucrats has earned this indictment. He will not yield to their effort  to silence him. He will not be intimidated.

And here’s a different statement, issued this evening by retiring Sen. Jay Rockefeller:

For more than four years, Upper Big Branch families have cried out for justice for their loved ones lost in that horrific tragedy. Today’s indictment of former Massey Energy CEO Don Blankenship is another step toward justice.  But let me be clear: in my view, Don Blankenship, and the mines he once operated, treated miners and their safety with callousness and open disregard.  As he goes to trial, he will be treated far fairer and with more dignity than he ever treated the miners he employed. And, frankly, it’s more than he deserves.

Mine Explosion Congress

Over the last week, the “retired” Massey Energy CEO, Don Blankenship, has once again become a bit of a national media darling. He’s done appearances on ABC News and MSNBC, among others. Perhaps the most ridiculous was the interview he did with something called HuffPost Live, which started out with this exchange:

Interviewer: I’m always interested when I talk to people who have reached the very top of their fields what they wanted to do when they were young. You were growing up in a not rich family with a single mother in a West Virginia town. Did you ever dream of being a titan of industry? What did you want to do?

Blankenship: I think I wanted to be a professional baseball player at the time.

Incredibly, later in that particular show, the host, Josh Zepps, asks Blankenship this question:

It can only imagine the kind of pressure a CEO and the chairman of a huge company is under.  And if I try to put myself in your shoes or in the shoes of a CEO, I can sort of imagine that if i have a fiduciary responsibility to a board and shareholders to make sure the profits are as good as they can be, then I’m sort of sympathetic to the idea that, look I’m not forcing my workers to work here, I’m not forcing anyone to do anything. We all use energy, we all use coal. Providing America with cheap and affordable coal is my job. That’s my responsibility. Maybe there are corners that have to be cut. Is that a trade off that happens?

Eventually, Zepps is gushing at Blankenship, when he asks him about a variety of issues beyond coal mining:

You’re an interesting guy, so it’s interesting to get your thoughts on these political things.

What I couldn’t help thinking all week, though, after watching all 51 minutes of  “Upper Big Branch: Never Again” was why the media was going along with Blankenship and calling this a documentary.  Lots of people probably have lots of definitions of “documentary,” but here’s one that I found:

A documentary film is a nonfictional motion picture intended to document some aspect of reality, primarily for the purposes of instruction or maintaining a historical record.

It seems pretty obvious to me that so much of this YouTube video is fiction that the definition just doesn’t apply. Then there’s the notion of what part of reality it is trying to depict, not to mention whether it provides much to accurately maintain a historical record. But beyond that, it seems a little insulting to the good people who work hard to make real documentaries to lump this in with their films. Do we really think that this recycling of Blankenship’s discredited arguments about the Upper Big Branch Mine Disaster belongs in the same category as something like Hollow, the Appalachian interactive documentary that just won a Peabody Award?

Seriously now. You’re going to give us a former Massey board member pontificating about the disaster, and identify him as if he were just any old mining engineer?

By now, if you’re following this issue at all, we know that some of the individuals interviewed for the video have said they either didn’t understand Blankenship’s involvement in funding the project or allege they were specifically misled about his role.

And of course, we’ve seen the somewhat bizarre situation in which Sen. Joe Manchin, D-W.Va., is complaining he didn’t know about Blankenship’s role and demanding that the video be removed from the Internet and not distributed. You have to wonder how this possibly could have happened. And most importantly, some of Sen. Manchin’s comments included in the video were a bit odd.

For example, when the interviewer in the video is pitching Blankenship’s view that a massive inundation of natural gas was what caused the explosion, Sen. Manchin responds, “I never heard that. I always assumed that it was methane.” What? To be sure, the Blankenship-Massey “Act of God” theory about a natural gas inundation got plenty of attention from the media (see here and here, for example). It’s hard to believe Sen. Manchin had never heard of it or wasn’t briefed on that controversy. Surely Sen. Manchin read MSHA’s report on the disaster, and it discusses this issue extensively.

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Blankenship touts UBB ‘documentary’

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Here’s the latest tweet from retired Massey Energy President Don Blankenship:

In honor of UBB victims and the 120 miner fatalities since I retired a documentary will be out next week on what really happened at UBB.

As if the upcoming 4th anniversary of the mine disaster wasn’t going to be hard enough on the families of those 29 miners who died on April 5, 2010, now this …

We’ve been through all of this before about Blankenship’s theories on how the disaster happened (see here, here and here). The question is, now that Blankenship has declared that Hoppy Kercheval isn’t on coal’s side, who among our state media will promote those theories all over again like they are news?

WVU, Gordon Gee and Massey Energy


If you believe the anonymous sources being quoted by most of West Virginia’s media outlets, it appears that Hoppy Kercheval is going to get his wish.  As the Gazette’s MacKenzie Mays is reporting:

E. Gordon Gee, former president at West Virginia University and more recently Ohio State University, will serve as the interim president at WVU starting in January, sources confirmed Thursday.

The WVU Board of Governors unanimously approved an interim president for the school in an emergency meeting on Thursday, but delayed a public announcement for a Higher Education Policy Commission meeting scheduled for Friday at 9 a.m.

Now, it’s not clear from the reporting thus far exactly how the WVU board managed to unanimously approve Gee as interim president without publicly naming him. Remember that the West Virginia Open Governmental Proceedings Act generally prohibits agencies from taking votes during closed-door executive sessions. And, the law generally prohibits agencies from voting on motions that are written in a manner which obscures the precise matter being considered. And in interpreting the statute, the open meetings committee over at the Ethics Commission has said that public bodies must name names when they are voting on personnel items.

In any event, the other thing that seems to be absent from any of these discussions — most of all from Hoppy’s column promoting Gee for the post — was any mention of Gee’s role in overseeing the environmental and safety practices of the former Massey Energy coal empire.

Gee served on the Massey Board of Directors for nearly a decade, from late 2000 until his resignation from that board (under pressure from environmental groups and from students at Ohio State University, where he was then president) in May 2009. Importantly, he served on a board committee whose duty it was to oversee management’s handling of environmental and worker safety issues.

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Blankenship vs. Hoppy: More of the same on UBB

Mine Explosion Congress

Maybe it sounded like a good idea at the time. A “joint friend” hooked Hoppy Kercheval up with former Massey Energy CEO Don Blankenship for an interview on the MetroNews statewide “Talkline” program. They’d take the show’s second full hour. Hoppy would get to grill Blankenship for the first 30 minutes, asking him about mine safety and the Upper Big Branch Mine Disaster. Then Blankenship would get the second half-hour to talk about whatever he wanted to talk about.

hoppyI guess Hoppy thought this would be some big “get” for him. Perhaps he missed that the big WOWK-TV “exclusive” interview with Blankenship really didn’t produce any news. Or maybe he thought he was a more skilled interviewer and would trick Blankenship into revealing something important and new.  Or maybe Hoppy even thought that, given enough rope, Blankenship would show more of himself than he really wanted to — or at least more than his lawyers would like, as the federal criminal probe of Massey’s safety practices continues forward. Of course, Hoppy might have just thought having Blankenship on would be the talk-radio equivalent of link bait — which it certainly turned out to be.

But surely Hoppy never expected what he got out of Blankenship yesterday morning. After Hoppy dared to ask Blankenship a couple of perfectly reasonable — but really fairly restrained — questions, Blankenship went after Hoppy, with the whole thing eventually degenerating into Blankenship making the laughable suggestion that somehow Hoppy Kercheval and West Virginia MetroNews have been helping President Obama with his “war on coal.” Blankenship went so far as to lump Hoppy in with the Gazette in a media conspiracy to destroy the coal industry.

If you really want to, you can listen to the whole thing for yourself here, but there are a couple of points that need to be made following what really amounted to little more than a nice bit of West Virginia media and political theater.

First, Blankenship tries to assert that the growing number of safety violations cited by federal inspectors at the Upper Big Branch Mine in the months prior to the April 5, 2010, explosion that killed 29 miners were simply the result of an overzealous U.S. Mine Safety and Health Administration. MSHA inspectors, according to Blankenship’s theory, were writing up Massey in an effort to do their part on the “war on coal”. They were going after Massey especially hard, this theory says, because Blankenship had been a strong political opponent of Obama and of MSHA chief Joe Main’s former employer, the United Mine Workers of America.

The obvious problem with Blankenship’s theory is that Massey’s safety problems date back to long before anybody ever heard of the Upper Big Branch Mine.  MSHA data shows the number of violations cited at Massey mines was on the rise prior to Obama taking office, and long before Joe Main took over at MSHA.  And as we’ve documented before, it’s not like the UBB Disaster is the first time Massey’s behavior and safety practices were so bad that they prompted federal criminal charges.

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What’s next in the Upper Big Branch criminal probe?

R. Booth Goodwin II

When U.S. Attorney Booth Goodwin stood before the local media Tuesday afternoon for a brief press conference following the sentencing of former Massey official David C. Hughart, the first question was pretty predictable. I didn’t write down the exact wording, but it was something to this effect: Are you going after Don Blankenship? Goodwin’s response was pretty predictable as well:

We are going to take this investigation wherever it leads.

But really, the fact that Goodwin got that statement out was actually kind of important and interesting. I’m not sure if everyone really picked up on this. But rewind to February, when Hughart surprised everyone and implicated the former Massey CEO in a plot to cover up serious safety problems at the company’s coal operations. Describing the aftermath of that courtroom drama, which came during Hughart’s plea hearing, I explained:

U.S. Attorney Booth Goodwin did issue a press release yesterday, but it was pretty modest in tone, and Goodwin declined to answer further question or to make any of the statements he’s made before about how his office is going to follow the evidence where it leads, and bring to justice whoever was responsible for the deaths of 29 miners in the April 5, 2010, Upper Big Branch explosion.

There’s no doubt that Hughart’s statement about Blankenship was a little awkward for Goodwin and for Assistant U.S. Attorney Steve Ruby. They really weren’t counting on Hughart going off the reservation to name names the way he did.  And prosecutors weren’t really much interested in engaging about what Hughart alleged — at least not at that point. (Blankenship, as we’ve noted before, has denied any wrongdoing).

But perhaps now Goodwin and Ruby are feeling a little bit better about the status of things and about where their criminal probe is headed.

Now, some folks are pretty focused on the fact that his recent drug arrest seriously erodes Hughart’s ability to be a very helpful witness against anyone higher up at Massey.  But given what was already known about his departure from employment at Massey, it’s not really clear Hughart was going to end up testifying much in any future court proceedings anyway. And it’s also likely that the folks who will end up testifying if there are someday more trials against others at Massey are not people whose cooperation with prosecutors has been revealed yet to the public and the press. I asked Goodwin about this during his press conference, and he responded:

You want to have all of the witnesses that you can. We’ve identified witnesses who were in a position to know about this.


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Back in February, when one-time Massey Energy official David C. Hughart alleged that former CEO Don Blankenship was part of a conspiracy to cover up mine safety violations, Blankenship’s lawyer made it pretty clear what he thought of Hughart and his claims. As we reported at the time:

William Taylor, a lawyer for Blankenship, said his client has done nothing wrong and downplayed the significance of what Hughart said.

“We were quite surprised at the reports of Mr. Hughart’s statements at the time of his guilty plea,” Taylor said. “Don Blankenship did not conspire with anybody to do anything illegal or improper. To the contrary, he did everything he could to make Massey’s mines safe.

“We’re not concerned particularly about the story concerning Mr. Hughart,” Taylor said. “It’s not surprising that people say untrue things when they are trying to reduce a possible prison sentence.”

Well, yesterday Blankenship added to what his lawyer had to say. The former Massey CEO has a new post on his “American Competitionist” website and blog. It’s headlined MSHA Carries Out Obama/Roberts Agenda.  At the end, Blankenship has this to say about U.S. Attorney Booth Goodwin’s ongoing criminal investigation of the Upper Big Branch Mine Disaster and Massey:

If they put me behind bars …  it will be political.

And he concludes with this comment about Hughart:

As for Dave Hughart who Cecil cites as a witness and who says I conspired with him to notify miners that inspectors were on mine property – Dave was fired by Massey prior to the UBB explosion for drug use and theft- i.e. basically what he was arrested for. He is expecting to get a reduced sentence for his plea. Maybe he will, but he is not telling the truth about me.

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The Gazette’s Dr. Paul Nyden had a review in Sunday’s paper of Laurence Leamer’s major new book, “The Price of Justice: A True Story of Greed and Corruption. ” The book focuses on the Harman Mining/Hugh Caperton lawsuit against Massey.

As most readers of this blog certainly know, that case went all the way to the U.S. Supreme Court and produced a ruling that state Supreme Court Justice Brent Benjamin was wrong to refuse to step down from Harman Mining’s appeal because of then-Massey CEO Don Blankenship’s funding of a campaign that helped put Benjamin on the court. As Dr. Nyden has already reported, this whole dispute continues in the courts in Virginia.

In his Sunday book review, Dr. Nyden explains:

Leamer tells the story of Pittsburgh lawyers Bruce Stanley, who grew up in Mingo County and worked as a newspaper reporter in Williamson before getting a law degree, and David B. Fawcett, whose father and grandfather were both lawyers. Both work for prominent Pittsburgh firms — Stanley for ReedSmith and Fawcett [first] for Buchanan Ingersoll and now for ReedSmith.

Fawcett and Stanley also previously represented clients in two other lawsuits against Blankenship and Massey.

Wheeling-Pittsburgh Steel hired Fawcett to sue Massey after it violated its 10-year contract to supply the company with high-quality metallurgical coal. Instead, Massey began selling its met coal to buyers willing to pay higher prices, exporting much of it to steel producers in foreign countries. After a four-month trial that ended in July 2007, Fawcett won $220 million in damages for Wheeling-Pitt. When the U.S. Supreme Court rejected Massey’s appeal, Massey paid the troubled West Virginia steel company $267 million, including interest.

Stanley sued Massey on behalf of the widows of two coal miners killed during a fire in its Aracoma mine in Logan County. Using government inspection reports and testimony from other miners, Stanley proved Massey had forced its Aracoma miners to work under unsafe conditions. The size of the settlements paid to the widows were never made public.

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Sen. Rockefeller reintroduces mine safety bill

This just in:

Senator Jay Rockefeller today reintroduced his landmark mine safety legislation aimed at fixing the glaring safety issues revealed in the wake of the Upper Big Branch mine disaster on April 5, 2010, which claimed the lives of 29 miners in Montcoal, West Virginia. Senator Joe Manchin cosponsored the legislation.

The Robert C. Byrd Mine and Workplace Safety and Health Act was first introduced in 2010, and again in 2011 and 2012.

Sen. Rockefeller said:

Since the terrible tragedy at Upper Big Branch more than three years ago, some crucial steps have been taken to improve mine safety, but we are long overdue to make an even bigger leap forward by passing comprehensive mine safety legislation. We owe it to families of the victims at Upper Big Branch, and to the miners of today and tomorrow, to pass mine safety legislation that moves us more strongly ahead. Coal miners’ loved ones give thanks for answered prayers every time they walk through the front door. We should be constantly vigilant for that safe return home. We cannot wait for another tragedy before we act. The time is now.

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The Upper Big Branch Mine Disaster, April 5, 2010

Three years ago this afternoon, an explosion tore through Massey Energy’s Upper Big Branch Mine in Raleigh County, W.Va. Twenty-nine coal miners died and two others were seriously injured.

For many of us, it’s just another day. At best, it’s a time to revisit the disaster and ask questions about why more hasn’t been done to prevent another one — or to stop the needless one-by-one death of miners across the coalfields. All too soon, April 5 will be just another date marked on the long, disgraceful calendar of this nation’s record of preventable mine explosions, fires and other disasters. As Sen. Robert C. Byrd said after the previous disasters at Sago and Aracoma:

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.

But for those who lost loved ones, April 5 is now forever the day that they became a widow or an orphan, the day they lost their son or their best friend.  Here’s the list of those men who died so needlessly three years ago today:

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

And here’s a slideshow that the Gazette’s Doug Imbrogno previously put together with photos of all of the miners:

Mine helmets and painted crosses sit at the entrance to Massey Energy’s Upper Big Branch coal mine Tuesday, April 5, 2011 in Montcoal, W.Va. The memorial represents the 29 coal miners who were killed in an explosion at the mine. (AP Photo/Jeff Gentner)

Friday will mark the 3rd anniversary of the massive explosion that killed 29 coal miners at Massey Energy’s Upper Big Branch Mine in Raleigh County, W.Va.  Several events are planned to commemorate the disaster (see here and here), and we can expect the usual round of statements from political leaders about how much they’ve done to ensure nothing like this ever happens again — and to make sure every coal miner gets to go home to their family after every shift.

How well are we really doing? To answer that question, you might turn first to the op-ed piece that was in this past Sunday’s Gazette-Mail, written by longtime mine safety advocate Davitt McAteer and his associate, Beth Spence, who worked on the independent investigation of Upper Big Branch.  They explain:

As we said in our independent report released in May 2011, the explosion was no accident. Those 29 men were killed because officials of a rogue coal company disregarded worker safety in the drive to produce coal. But that’s not the entire story. The UBB miners also died because regulators — both from the federal Mine Safety and Health Administration and the West Virginia Office of Miners’ Health, Safety and Training — abdicated their responsibility of making sure the operator complied with minimum fundamental safety requirements.

The late Sen. Robert C. Byrd once said, “The test of a great country such as ours is how serious we are about protecting those among us who are most at risk … Those men and women who bravely labor in such dangerous occupations as coal mining to provide our country with critical energy should be protected from exploitation by private companies with callous attitudes about health and safety.”

Unfortunately, our country is failing Sen. Byrd’s test. In the first quarter of 2013, eight miners were killed in the nation’s mines, five in West Virginia. This compares with five during the same period of 2012, two in 2011 and two in 2010. Instead of trending downward, deaths are increasing.

Their op-ed notes that the state of West Virginia has really done very little to improve its mine safety system since Upper Big Branch. The minor reforms contained in Gov. Earl Ray Tomblin’s “comprehensive” legislation are mostly stalled, as we’ve reported in the Gazette here, here, here, and here. As McAteer and Spence say:

The state’s one accomplishment has been to implement a drug-testing program, which was promoted by the coal industry and which had absolutely nothing to do with the deaths of the UBB miners.

On the federal level, their op-ed explains:

The U.S. Congress has done even less. Before his death, Sen. Byrd introduced legislation aimed at serial safety violators like Massey Energy, which operated UBB. The bill went nowhere, as has subsequent safety legislation. Bills recently re-introduced in both the House and Senate stand little chance of passage. Republicans and Democrats appear to be engaged in an endless debate as to whether to strengthen legislation or ensure that current laws are enforced.


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Don Blankenship: ‘The chief executive officer’

The development two weeks ago in the Upper Big Branch criminal investigation — in which former Massey Energy official David Hughart implicated longtime Massey CEO Don Blankenship — certainly caused a stir (see here and here). As we reported at the time, Blankenship, through his lawyer, denies any wrongdoing at Upper Big Branch — or any other Massey mines, for that matter.

But in the wake of Hughart’s allegation, I thought readers might want to check out the entire exchange between Hughart and U.S. District Judge Irene Berger. So here it is, based on a transcript that just became available. We’ll jump in at a point in the hearing after Judge Berger had just explained to Hughart one of the charges against him, conspiracy to defraud the United States by using advance notice of inspections to thwart federal Mine Safety and Health Administration enforcement efforts:

Judge: Tell me in your own words, Mr. Hughart, what it is you did that makes you guilty of violating that provision.

Hughart: I knew that we had made pre-notification underground when we had mine inspectors on site. And I knew that had happened and that I was part of it.

Judge: All right. I want you to tell me what you did that makes you guilty of this offense as though you’re telling the facts to someone who does not know. Start at the beginning and tell me exactly what you did and what procedures you are referring to.

Hughart: At my operation, when the mine inspectors would come on-site, a person would notify underground that we had mine inspectors on site, and I knew that that practice was happening.

Judge: And what part did you play in that?

Hughart: I condoned it and seen it happen and knew it was going on.

Judge: When you say you condoned it, knew it was happening, what do you mean? What did you do, if anything?

Hughart: I allowed it to happen.

Judge:  What was your position at the company?

Hughart: President.

Judge: And as president, what were your duties?

Hughart: I was responsible for the whole operation.

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AP: Former UBB superintendent now in prison

Gary May, former UBB mine superintendent walks away from the U.S. District Court in Beckley Thursday, Jan. 17, 2013 with his attorney, Tim Carrico, after his sentence hearing. May was sentenced to 21 months in prison and three years of supervised release. Judge Irene Berger also ordered that May pay a $20,000 fine. (AP Photo/The Register-Herald, Rick Barbero)

Here’s the latest from The Associated Press:

A former superintendent at the West Virginia coal mine where 29 men died in 2010 is now behind bars at a minimum-security federal prison in Morgantown, U.S. Bureau of Prison records showed Tuesday.

Gary May was sentenced in January to 21 months in prison on a conspiracy charge for his actions at the former Massey Energy Co.’s Upper Big Branch Mine.

May, 44, of Bloomingrose pleaded guilty last year to charges that he defrauded the federal government with actions that included disabling a methane gas monitor and falsifying records.

May has cooperated with prosecutors in their continuing criminal investigation of the worst U.S. coal mining disaster in 40 year and testified at the sentencing of former Massey security chief Hughie Stover.

Stover was sent to prison for three years for lying to investigators and ordering a subordinate to destroy documents. It was one of the stiffest punishments ever handed down in a mine safety case, and he’s serving his time at a minimum-security prison near Ashland, Ky.

May had asked U.S. District Judge Irene Berger to sentence him to home confinement or a federal facility closer to his home. Morgantown is about a three-hour drive.

Still awaiting sentencing is David Hughart, head of another Massey subsidiary. He also pleaded guilty to conspiracy charges, testifying last month about a widespread corporate practice of warning coal miners about surprise federal inspections between 2000 and 2010.

Hughart, former president of White Buck Coal Co., said the policy was set by the former chief executive. At the time, that was Don Blankenship. His attorney denies Blankenship did anything wrong.

Hughart faces up to six years in prison when sentenced June 25.

Well, in case you missed it, yesterday’s big news is in today’s Gazette:

A former Massey Energy official who is cooperating with prosecutors on Thursday implicated the company’s former chief executive officer, Don Blankenship, in a decade-long conspiracy to hide safety violations from federal inspectors.

Former Massey official David C. Hughart pleaded guilty to two federal criminal charges that he plotted with other company officials to routinely violate safety standards and then cover up the resulting workplace hazards.

But a fairly routine plea hearing here took a surprising twist when U.S. District Judge Irene Berger pressed Hughart to name his co-conspirators and Hughart responded, “the chief executive officer.”

What does Blankenship have to say about this?

William Taylor, a lawyer for Blankenship, said his client has done nothing wrong and downplayed the significance of what Hughart said.

“We were quite surprised at the reports of Mr. Hughart’s statements at the time of his guilty plea,” Taylor said. “Don Blankenship did not conspire with anybody to do anything illegal or improper. To the contrary, he did everything he could to make Massey’s mines safe.

“We’re not concerned particularly about the story concerning Mr. Hughart,” Taylor said. “It’s not surprising that people say untrue things when they are trying to reduce a possible prison sentence.”

The Associated Press, which had reporter John Raby in the courtroom, led its story on the hearing this way:

A longtime subordinate of ex-Massey Energy chief Don Blankenship publicly implicated his boss for the first time Thursday in what appears to be a widespread corporate practice of warning coal miners about surprise inspections.

The Wall Street Journal said in  its story:

The former head of a Massey Energy Co. subsidiary pleaded guilty to conspiracy charges and alleged he was ordered by the Massey chief executive at the time to illegally warn miners of imminent safety inspections.

And Howard Berkes over at NPR wrote on the Two-Way Blog:

A relatively routine plea hearing in Beckley, W.Va, Thursday, took an unexpected and dramatic turn when a former Massey Energy executive implicated former CEO Don Blankenship in a criminal conspiracy.

It’s the first time Blankenship has been publicly named as an alleged conspirator in the ongoing federal criminal investigation of the 2010 explosion at Massey’s Upper Big Branch coal mine.

The accusation is also the first public indication that Blankenship specifically is in the sights of federal prosecutors.

It’s worth remembering that Judge Berger’s questioning of former Massey officials who have flipped and become government witnesses has produced interesting disclosures before, such as when former Upper Big Branch Mine Superintendent Gary May alleged that federal Mine Safety and Health Administration inspectors were among those in on the conspiracy to provide advance notice of government safety inspections.

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Aracoma ruling: Bad news for MSHA

West Virginia’s state Supreme Court just released a long-awaiting ruling that certainly complicates things for the U.S. Mine Safety and Health Administration. As we reported on the Gazette’s website:

The state Supreme Court on Tuesday paved the way for the widows of two miners killed in the 2006 Aracoma Mine fire to pursue their lawsuit against the U.S. Department of Labor over lax enforcement of federal mine safety standards at the operation.

In a 5-0 ruling, the justices said that a private party conducting mine inspections is liable for the wrongful death of a miner resulting from that private party’s negligent inspection.

The decision appears to allow Delorice Bragg and Freda Hatfield to pursue their suit against the labor department’s Mine Safety and Health Administration, which has publicly conceded major inspection and enforcement lapses at the Aracoma operation.

“A private inspector who inspects a work premises for the purpose of furthering the safety of employees who work on said premises owes a duty of care to those employees to conduct inspections with ordinary skill, care, and diligence commensurate with that rendered by members of his or her profession,” said the ruling, written by Justice Robin Davis.

The case stems from the Jan. 19, 2006, fire at Massey Energy’s Aracoma Alma No. 1 Mine in Logan County. A crew of workers trying to evacuate the underground tunnels ran into thick black smoke in their primary escape tunnel, and was forced to try find another way out. Two workers, Don Bragg and Ellery Hatfield, became separated from the group, got lost, and eventually succumbed to the smoke.

You can read the ruling yourself here, and here’s a bit more of our story to explain the legalities of this:

Citing MSHA’s failures, the Bragg and Hatfield families sued MSHA under the federal Tort Claims Act, alleging federal officials were partly responsible. A suit against Massey was settled, with the terms being kept confidential.

In February 2011, U.S. District Judge John T. Copenhaver threw out the case, concluding that it wasn’t allowed because under West Virginia law a private person in circumstances similar to MSHA’s would not have been held liable. Under the FTCA, the federal government is liable in the same manner, and to the same extent, as private individuals would be in similar situations.

Then, in July 2012, the 4th U.S. Circuit Court of Appeals said it found “no clear controlling West Virginia precedent” on the issue, and asked the state Supreme Court to consider the matter.

Bruce Stanley, attorney for the Bragg and Hatfield families, told me in a statement:

The opinion marks another step in the widows’ continuing efforts to bring to justice all those responsible for the senseless disaster at Aracoma. The conscious decision of coal companies to ignore the most basic of mine safety laws and instead just run coal should not and cannot excuse government regulators from their independent responsibility to enforce those laws, regardless of the prevailing political climate or perceived economic pressures.  Hopefully, the threat of a private suit will serve as an incentive for them to do their jobs instead of turning their heads.

We broke another story this morning on the Gazette’s website about how the Tomblin administration’s efforts at “comprehensive mine safety” reform are stalled. This one (following up on previous stories here and here), reports:

Tomblin administration representatives are still putting the finishing touches on a rule to implement an increase in civil penalties that was part of the governor’s much-touched mine safety legislation passed last year, officials confirmed this morning.

Under the bill, signed into law by Gov. Earl Ray Tomblin last March, the maximum monetary fine for most mine safety violations was to be increased from $3,000 to $5,000.

The state Office of Miners’ Health, Safety and Training has not been using its authority for the increased fines, pending finalization of the rule, agency director Eugene White said. “That will take place when the rule is promulgated,” White said.

As noted in the story, an initial rulemaking aimed at implementing the increase in fines was withdrawn by the administration in the face of criticism from the West Virginia Coal Association. In emails on file with the Secretary of State’s office, association vice president Chris Hamilton explained his concerns about the initial rule:

… This section of law raises the maximum penalty from $3,000 to $5,000. The change to this section was not intended to raise penalties across the board. All evidence behind this change to state law only references an increase in the “Maximum” penalty. My understanding is that rules are being drafted that would effectively raise all penalties, including the minimum penalty by approximately 60 percent.

If you take a look at the initial rule, especially at Table 1 on the last page, it indicates that, through changes in the civil penalty formula used to get the maximum penalty from $3,000 to $5,000 — as mandated by the Legislature — state agency officials also ended up with very small increases in the other, non-maximum fines. For example, a violation that previously drew a $60 fine would not result in a $100 fine. A violation that previously brought a $504 fine would result in a penalty of $840.

But the most interesting thing here is to read the state agency’s description of the real impact of these changes in maximum fines allowed under state law:

It is expected that the increase in the maximum civil penalty … will result in minimal impact on revenues because the maximum penalty was increased from $3,000 to $5,000 which is not a dramatic increase over the previous maximum penalty … while an increase in the maximum civil penalty does result in corresponding increases in the civil penalties for lesser violations … it is not expected that the increases will have a significant impact on revenue because again they are relatively minor.