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Blankenship on Trial

Breaking Safety Laws “Expected”
at Massey Energy, says Federal Prosecutor

It’s the safety trial of the century: Former Massey Energy CEO Don Blankenship is facing up to thirty years in prison.

Jury selection began last week at a federal courthouse in Charleston, West Virginia. Prosecutors and defense lawyers delivered opening arguments on Wednesday, October 7.

The charges stem from a coal dust explosion at Massey Energy’s Upper Big Branch (UBB) coal mine in Montcoal, West Virginia on April 5, 2010. Twenty-nine of the 31 miners working underground died in the blast.

Proscecutors charge that at Blankenship’s company “breaking safety laws wasn’tjust permitted. It was expected.” Photo: Mannie Garcia, Rainforest Action Network/Creative Commons

According to the The Wall Street Journal, Blankenship “is the first CEO of a major U.S. corporation to be charged criminally for conspiring to violate workplace-safety rules following a deadly industrial accident.”

Former UBB miner Tommy Davis told The New York Times what he saw when the bodies of dead miners emerged from the shattered, steaming worksite:

Eyes filled with dirt, mouths filled with dirt, ears filled with dirt. Say I stick you in a room and pump dirt in on you while you stood there, until you can’ttake no more. That’s what it was like.

Tens of thousands of U.S. workers die each year from occupational injuries and illnesses. But corporate executives rarely face criminal charges. What makes this case different?

  • The scale of the tragedy– the most deaths in a single U.S. mining disaster since 1972.
  • Clear evidence of culpability. Government and independent investigations found a pattern of safety violations at Massey. The mine was not properly ventilated, according to safety experts, leading to a build-up of dust and gas that caused the fatal explosion.
  • A hands-on CEO: Blankenship, who demanded hourly updates on coal production, can’teasily duck accountability behind layers of middle managers.

“He pushed the mine harder and harder for more coal production, more coal tonnage,” U.S. Assistant Attorney Steve Ruby told jurors in his opening statement. “At UBB, breaking safety laws wasn’tjust permitted. It was expected.”

Blankenship maintains his innocence and claims the charges against him are politically motivated. Lead defense attorney Bill Taylor explained his client’s ideas about workplace safety:

Mr. Blankenship had a view about people doing their jobs in the mines. If people do their jobs then you don’thave citations. If people don’tdo their jobs, then the problem is with the people.

Since the disaster, three former Massey executives have served prison terms for criminal safety violations and one is still incarcerated. Blankenship, indicted last November, is charged with conspiracy to violate mine safety standards, obstructing investigators, and lying to the Securities and Exchange Commission and investors about the impact of the disaster.

The government will build its case, according to court filings, with memos, emails and other internal documents- including recordings from a secret taping system inside Blankenship’s office.

One document that Blankenship himself concedes is especially damning is an eight-page memo, addressed to him and other Massey executives, from senior corporate counsel Stephanie Ojeda. It describes safety concerns raised by Bill Ross, a former inspector from the U.S. Mine Safety and Health Administration (MHSA) who had gone to work for Massey Energy.

“Massey is plainly cheating on dust sampling in some of its operations…” Ojeda wrote. “Massey has a worse track record than many other companies. The inspectors continue to find repeat violations; Massey never improves. This leads the inspectors to conclude that Massey just doesn’tcare.”

The Charleston Gazette-Mail, which has been closely following the trial, reports that prosecutors have a tape recording– from Blankenship’s own secret taping system- in which he discusses the Ojeda memo.

“I hope we keep it privileged,” says Blankenship. “…[B]ecause, like for example, if that was a fatal today or if we had one, it” d be a terrible document to be in discovery.”

The Ojeda memo came to light, ironically, when Blankenship sued Alpha Resources, which purchased Massey Energy in 2011, in an effort to get the new owner to pay his legal fees. Blankenship won that case and got his money, nearly $6 million as of this past April. But the federal government got the Ojeda memo- and prosecutors will soon present it to the jury charged with deciding Blankenship’s guilt or innocence.

Resources for following the Blankenship trial

Mother Jones, “The Fall of King Coal,” November/December 2015.
        Overview of the UBB disaster, Blankenship’s indictment, and the current trial

Charleston Gazette-Mail, “Don Blankenship on Trial”
        Catalog of latest stories on the trial and related developments

Charleston Gazette-Mail, Coal Tattoo blog
        Live updates from the federal courthouse in Charleston

West Virginia Public Broadcasting, “From Coal Mine to Courtroom: Blankenship on Trial”
        Podcast with daily trial highlights

Full text of Stephanie Ojeda memorandum to Don Blankenship

Governor’s Independent Investigative Panel, May 2011
        Upper Big Branch—The April 5, 2010, explosion: a failure of basic coal mine safety practices