Coal Tattoo

Blankenship touts UBB ‘documentary’

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Mine Explosion

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

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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

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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?

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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

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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

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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’

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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

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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

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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.

Gov. Earl Ray Tomblin reacts to crowd support during the Democratic primary election party Saturday, May 14, 2011 in Charleston, W.Va. (AP Photo/Jeff Gentner)

Three weeks ago, when he was sworn in again as governor of the great state of West Virginia, Gov. Earl Ray Tomblin said this about the state’s efforts to ensure there’s never a repeat of the Upper Big Branch Mine Disaster:

We made our mines safer by passing a comprehensive mine safety bill to protect the thousands of miners across this state who work each and every day so we may all enjoy a better life.

Of course, a law really doesn’t mean much if it’s not enforced. So what do we know so far about the state’s efforts to enforce this “comprehensive mine safety bill” the governor touted not only his in inaugural address, but also in his re-election campaign?

Well, we reported in the Sunday Gazette-Mail two weeks ago about how the state has yet to write rules that are required for enforcement of the bill’s requirement to toughen the requirement for shutting down underground mining equipment when explosive methane is detected. Under the legislation, those rules were due in October.

And yesterday, we broke another story in the Sunday paper, this one reporting:

Nearly three years after the Upper Big Branch Mine Disaster, West Virginia regulators still haven’t begun citing and fining mine operators who violate new standards aimed at preventing coal-dust explosions, according to interviews and records obtained under the state Freedom of Information Act.

The new standards were mandated by an executive order issued by then-Gov. Joe Manchin just nine days after the April 5, 2010, explosion that killed 29 miners.

Lawmakers later added the standards, mandating more crushed limestone be used to control the buildup of explosive coal dust underground, to state law. Current Gov. Earl Ray Tomblin touted the change as a major part of what he says was a “comprehensive mine safety bill.”

But despite finding hundreds of instances over the last 18 months where mining operations didn’t comply with the new standards, the state Office of Miners’ Health, Safety and Training has not issued even a single citation for violating the dust standards, records and interviews show.

“We haven’t been writing any paper,” said Randy Harris, a consultant who has been helping the state agency develop its coal-dust sampling program.

What wasn’t mentioned in either of those stories is that another rule — one aimed at implementing a small increase in state safety fines for mine operators established by the legislation — also has not yet been finalized. Like the rock-dusting rule, it was submitted last summer, but then abruptly withdrawn, and hasn’t surfaced since. Like the rock-dusting rule, the one for increased fines was pulled after complaints from the West Virginia Coal Association.

Interestingly, the state has managed to get an emergency rule filed to help implement part of the legislation’s requirement for mandatory drug testing for coal miners, and even did so by the legislatively mandated deadline of Dec. 31, 2012.

So, just so everybody is clear: On the two issues in the legislation that actually addressed what led to 29 coal miners getting blown up on April 5, 2010 — methane and coal dust — the state still isn’t taking the actions required by this legislation. But, when it comes to the industry-backed provisions relating to drug testing of miners — a matter that had absolutely nothing to do with the worst coal-mining disaster in nearly 40 years (see here and here) — state regulators were able to act by the required deadlines.

UBB update: Don Blankenship is at it again

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It seems that having walked away from Massey Energy $12 million richer, former CEO Don Blankenship just won’t leave well enough alone — at least not as far as the Upper Big Branch Mine Disaster is concerned.

Over on his website, Blankenship has a collection of new “essays” about coal-mine safety (see here, here and here) that includes this discussion of the April 5, 2010, explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County, W.Va. Here’s Blankenship:

Now to my purpose in this essay – the coal mining industry needs to be keenly aware of the dangers of natural gas inundations in coal mines.* The industry and our government have for decades developed laws essentially directed at the detection and removal of “coal bed methane gas.” Little focus has ever been placed on “natural gas” or “out of seam gas.” This is true despite the fact that natural gas is slightly more explosive than what is commonly called coalbed methane, and that it can appear unexpectedly, suddenly, and in very large quantities.

The likely reason that natural gas inundations have not been the focus of MSHA or the coal industry is that recognizable inundations of natural gas into coal mines are rare. However, post the UBB explosion it is clear that natural gas mine inundations do occur in at least certain Boone and Raleigh County, West Virginia mines.

Many in the government are still blinded by their political loyalties and refuse to acknowledge that the sudden inundation of natural gas almost certainly caused the UBB explosion. Gas samples (taken by MSHA) and hydro-carbon testing immediately following the explosion clearly showed the presence of large amounts of natural gas continuing to be liberated from the mine. Testing clearly showed that this gas was out-of-seam natural gas and not coalbed methane.

Now, we’ve heard this all before from Blankenship and other Massey officials (see previous posts here, here and here, for example). But interestingly, there seems to be a bit of a change in the rhetoric from Blankenship this time around.

Previously, Blankenship has blamed the Upper Big Branch Mine Disaster on a natural gas inundation and made out like the whole thing was not preventable:

I’m a realist. The politicians will tell you we’re going to do something so this never happens again you won’t hear me say that. Because I believe that the physics of natural law and God trump whatever man tries to do. Whether you get earthquakes underground, whether you get broken floors, whether you get gas inundations, whether you get roof falls, oftentimes they are unavoidable just as other accidents are in society.

But now, Blankenship is demanding that government officials take action:

Since the Upper Big Branch accident the media and the politicians have been too busy casting blame to truly assess what happened and what actions they might take or laws they might pass to reduce the chances of another natural gas explosion. However the lack of concern does not change the fact that it will happen again. MSHA and NIOSH (National Institute of Safety and Health) must be required by lawmakers, the mining industry, the UMWA, coal miners, and the media to address this very serious safety issue. Any failure to improve the detection of natural gas inundations and to better define the geological circumstances under which they are more likely to occur means that politicians have broken their promise to “make sure this never happens again.”

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Gazette photo by Chip Ellis

I try to keep up with the words of wisdom from former Massey Energy CEO Don Blankenship (see here and here) … but it’s hard now that he’s blocked me from following him on Twitter.

So thanks to Mike Niven over at SNL Financial, for pointing out these two recent tweets:

Judge won’t delay UBB superintendent sentencing

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Gary May, left, of Bloomingrose, W.V., former superintendent of Upper Big Branch Mine, where an explosion killed 29 workers, walks with his defense attorney, Tim Carrico, at the Beckley Federal Courthouse in Beckley W. Va., Thursday March 29, 2012.  (AP Photo/Rick Barbero)

Vicki Smith over at The Associated Press reports this interesting development in the Upper Big Branch criminal investigation:

A judge has denied a motion to delay, so the January sentencing of a former superintendent at West Virginia’s Upper Big Branch mine will go on as planned.

U.S. District Judge Irene Berger denied prosecutors’ request for a postponement, saying they’d failed to “state good cause.” In light of the time that’s passed since Gary May pleaded guilty to a conspiracy charge in March, Berger said she was denying the motion.

As previously reported, May is scheduled to be sentenced on Jan. 17, but U.S. Attorney Booth Goodwin sought a four-month delay, saying that May  “continues to provide important cooperation in an ongoing criminal investigation.”  Judge Berger had already twice postponed May’s sentencing after prosecutors said they needed more time to get information from May, who is cooperating with the ongoing investigation as part of a plea deal.  Assistant U.S. Attorney Steve Ruby had argued:

Notable progress has been made in the investigation since this sentencing proceeding was last continued. The further continuance requested here will allow that progress to be extended and will avoid any risk to the investigation from the sentencing proceeding itself.

Judge Berger wasn’t buying it. So now, May will be sentenced on Jan. 17, just one day after Judge Berger holds a Jan. 16 plea hearing for longtime Massey official David Hughart, who is also cooperating with investigators.

 

Court upholds Stover conviction in UBB case

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In a March 15, 2011 photo, Massey Energy Security Chief Hughie Elbert Stover, center, and his wife, left, are swamped by members of the media as they leave the Federal courthouse in Beckley  (AP Photo/The Register-Herald, F. Brian Ferguson).

Word is just in this morning that the 4th U.S. Circuit Court of Appeals has upheld the conviction of former Massey Energy security chief Hughie Elbert Stover, who was found guilty of lying to investigators and trying to destroy evidence following the April 2010 Upper Big Branch Mine Disaster.

Stover had appealed his conviction after he was sentenced by U.S. District Judge Irene Berger to three years in prison. I’ve posted a copy of the 4th Circuit’s decision here.

 

Blankenship: ‘I don’t think I’m electable’

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The Wall Street Journal’s Kris Maher has what I guess is considered a big scoop, a story posted last evening based on an interview with former Massey CEO Don Blankenship. The story starts out:

The former chief executive of Massey Energy Co. said in a rare interview that he has no immediate plans to return to the coal-mining business, after a noncompete agreement expires at the end of the year.

A controversial figure in the coal industry and West Virginia politics, Don Blankenship has largely kept himself out of the spotlight since retiring from Massey in December 2010, eight months after an explosion—the industry’s worst in 40 years—killed 29 workers at the company’s Upper Big Branch mine in Montcoal, W.Va.

Then, Kris mentions yesterday’s big news that U.S. Attorney Booth Goodwin here in Charleston has secured the cooperation of a longtime Massey executive, David C. Hughart, in his office’s ongoing probe of Upper Big Branch and of what investigators say was Massey’s more widespread culture of putting coal production ahead of worker safety and health:

On Wednesday, one of Mr. Blankenship’s former executives was charged with being part of a conspiracy that allegedly involved other company officials ordering miners to violate safety laws. Mr. Blankenship hasn’t been charged in the continuing investigation into the explosion. He appeared before a U.S. Senate hearing into the accident and declined, along with a number of other former Massey officials, to speak to federal and state civil investigators.

Maybe I missed it, but the story doesn’t indicate when this interview took place — and there’s nothing in the story to suggest that Kris asked Blankenship about the ongoing criminal probe which — even long before yesterday’s announcement — clearly had prosecutors working to move up the corporate ladder toward former top Massey officialsUPDATED: Kris Maher says via Twitter  that the interview was on Tuesday, prior to the announcement about charges against former Massey executive David C. Hughart. Either way, it would have been interesting to hear what Blankenship had to say about the broadening investigation. UPDATED: Kris also says via Twitter that Blankenship declined to comment on the criminal probe when he spoke to him, apparently a second time, yesterday.

The story does offer some new information about Blankenship’s own plans for the future:

In recent weeks, the 62-year-old Mr. Blankenship has launched a red-white-and-blue-themed personal website and began posting again on Twitter, raising speculation that he might be preparing to launch a business venture or even a political campaign.

“I don’t have much in the way of plans with coal,” said Mr. Blankenship, noting that he believes central Appalachian coal won’t be competitive with natural gas for a long time. Although he founded McCoy Coal Group last year and is listed as an officer at several other firms, he said he doesn’t plan to seek mining permits or buy up reserves. “It is easier to make money in the stock market than coal,” he said.

He said he has no plans to run for office at this time. “I don’t think I’m electable,” he said, but added he could change his mind and “run for something just to speak my mind.”

And it gives Steve Roberts, president of the West Virginia Chamber of Commerce, to again avoid questioning whether some of Massey’s business practices weren’t exactly of the sort our state should encourage:

Don Blankenship is a West Virginia success story who has a history of being very outspoken,” said Steven Roberts, president of the state’s Chamber of Commerce. “I think it’s likely that Don might use some of his significant resources to amplify his message.”

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