Tuesday, December 22, 2015

Monongah 1907 Mine Disaster

Uploaded on Jan 9, 2008

This short clip is from Davitt McAteer's 1985 25-minutes video - Monongah 1907. The entire video, rich with detail about this disaster also traces the development of mine safety laws in the US. Monongah 1907 is now available on DVD for $14.95. For ordering information, send an email to: droberts@mcateer-assoc.com .

And don't miss Davitt McAteer's book, Monongah: The Tragic Story of the 1907 Monongah Mine Disaster, the Worst Industrial Accident in U.S. History, recently published by the West Virginia University Press (2007) http://www.wvupress.com.

"When I heard that Davitt McAteer was working on a book detailing the unparalleled disaster at the Monongah mines, I though it promising news ... no one is positioned better than Davitt MsAteer to examine the Monongah mining disaster of 1907 from all the perspectives required: historical, sociological, legal, and economic. Monongah is an important book, long overdue."

From the Introduction by Robert B. Reich, former Secretary of the US Department of Labor, 1993 to 1997.

Davitt McAteer, ESQ., a native of West Virginia, has devoted much of his professional efforts to mine health and safety issues. During the 1970s, Davitt led the safety and health programs of the United Mine Workers and founded the Occupational Safety and Health Law Center. During the Clinton Administration, he served as the Assistant Secretary for Mine Safety and Health at the United States Department of Labor. In January of 2006, West Virginia Governor Joe Manchin asked Mr. McAteer to serve as personal advisor and conduct an independent investigation into the cause or causes of the Sago Mine Disaster and the Aracoma Alma No. 1 Mine Fire, both of which occurred in January 2006.

www.DavittMcAteer.comDavitt McAteer & Associates

Need for Updated Safety Procedures in Turkey's Mining Industry- Davitt McAteer interview

Published on May 15, 2014

CCTV's Elaine Reyes interviews Davitt McAteer, former assistant secretary of Labor for Mine Safety and health under U.S. President Bill Clinton, about mining safety regulations in Turkey.

www.DavittMcAteer.com Davitt McAteer & Associates

Upper Big Branch Mine Disaster Simulation- youtube

www.DavittMcAteer.comDavitt McAteer & Associates

WVU- Law School Coal Conference J. Davitt McAteer

Davitt McAteer, Esq., a native of West Virginia, 1966 graduate of Wheeling Jesuit University, and a 1970 graduate of the West Virginia University College of Law, has devoted much of his professional efforts to mine health and safety issues. He worked with consumer and environmental advocate Ralph Nader on efforts to enact the landmark 1969 Federal Coal Mine Health and Safety Acts. During the 1970s, Davitt led the safety and health programs of the United Mine Workers and founded the Occupational Safety and Health Law Center. In 1984, he visited South Africa at the request of the National Union of Mine Workers to study health and safety issues, and during the Clinton administration served as Assistant Secretary for Mine Safety and Health at the United States Department of Labor. He also served nearly two years as the Acting Solicitor for the Department of Labor, the second largest law firm in the federal government at that time.

Former, Vice President of Sponsored Programs at Wheeling Jesuit University, and leads several national centers that impact economic development, education, and mine safety, including the Robert C. Byrd National Technology Transfer Center and the Erma Ora Byrd Center for Educational Technologies, which houses the NASA sponsored Classroom of the Future. Davitt is director of the University’s Coal Impoundment Project, which identifies and develops methods of stabilizing or removing coal impoundments throughout Appalachia, and is consultant to the University’s Clifford M. Lewis, S.J., Appalachian Institute, which addresses issues important to residents of Appalachia.

In January of 2006, West Virginia Governor Joe Manchin asked Mr. McAteer to serve as personal advisor and conduct an independent investigation into the cause or causes of the Sago Mine Disaster and the Aracoma Alma No. 1 Mine Fire, both of which occurred in January, 2006. Mr. McAteer and his team produced two reports in July and November including recommendations to improve mine safety in West Virginia and across the nation.

Davitt maintains an office and lives in Shepherdstown, West Virginia. He is admitted to practice before the United States Supreme Court, in the State of West Virginia, the District of Columbia, the United States Fourth Circuit Court of Appeals, the United States Third Circuit Court of Appeals, the United States District Court for the Southern District of West Virginia, and the United States District Court for the District of Columbia. He also served as Co-Chairman of the American Bar Association?s Occupational Safety & Health Law Section.

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www.DavittMcAteer.com Davitt McAteer & Associates

Washington Post-Company officials had worried about violations at mine before explosion

Company officials had worried about violations at mine before explosion

Massey Energy chief executive Don Blankenship, second from right, and board directors speak in Charleston, W.Va., about the Upper Big Branch mine explosion. They said they still do not know the cause. (Associated Press)

By David A. Fahrenthold and Kimberly Kindy

Tuesday, April 27, 2010

CHARLESTON, W.VA. -- Massey Energy officials were so concerned about a "very large number" of serious safety citations at the Upper Big Branch coal mine last year that they dispatched a two-person safety team to work there full time, company leaders said Monday.

In a news conference in Charleston, company officials also pointed a finger back at the federal regulators who had repeatedly cited them for safety violations before an explosion killed 29 miners on April 5.
They said the federal Mine Safety and Health Administration had indirectly caused a reduction of fresh air getting to an area deep inside the mine by requiring the company to use a "complicated" ventilation plan that Massey engineers resisted. Federal officials responded by saying the changes they required were necessary to ventilate the mine properly.
Ventilation will be a critical issue in the investigation into the explosion. Experts think the blast may have been triggered by a buildup of gases, such as methane, or flammable coal dust inside the mine.
The Massey officials, including chief executive Don Blankenship, said they still did not know what triggered the explosion. They released new data showing that, in the minutes before the blast, foremen deep inside the mine had reported finding very low or nonexistent levels of methane.

"No hazards were found" by the foremen, said Massey Director Stanley C. Suboleski, who served on the Federal Mine Safety and Health Review Commission under the Bush administration. "And methane measurements ranged from zero to nearly zero."
Three weeks after the explosion, government investigators have not been able to enter the Upper Big Branch mine because it remains full of dangerous gases.
At Monday's news conference, Massey officials detailed their financial help to the families of the 29, including a plan to ensure that widows receive the equivalent of the lost miner's paycheck until they remarry or die. The company will also provide health benefits for 20 years and a scholarship for dependent children to attend a West Virginia college.
Company Director Bobby R. Inman, a retired Navy admiral and former director of the National Security Agency, defended the company against allegations that it puts profits ahead of safety. He called the charge a "big lie" originally spread by union officials and a plaintiff attorney.
But Massey officials did not offer many details about two important revelations: that the company had been concerned about repeated safety citations at Upper Big Branch, and that federal inspectors may have helped make the mine's ventilation worse.
The company said that, between April and October 2009, the mine had received 47 citations called "D Orders," the most serious type of safety violation. Because that was an unusually large number, the company dispatched two "safety professionals" to the mine.
The company noted that, in the period after that, the number of serious violations had declined. From November 2009 to April 4, the day before the blast, there had been seven such orders, the company said.

www.DavittMcAteer.com Davitt McAteer & Associates

On April 13, 2010, Davitt McAteer was asked by former WV Governor Joe Manchin, III to form an independent investigation panel to investigate the cause of the Upper Big Branch Mine explosion

Upper Big Branch Report

On April 13, 2010, Davitt McAteer was asked by former WV Governor Joe Manchin, III to form an independent investigation panel to investigate the cause of the Upper Big Branch Mine explosion and to offer recommendations to prevent futu

On the afternoon of April 5, as Clay sat at his desk waiting for "At the 3:00 p.m. production report, he wasn’t paying too much attention to the North Portal fan until he heard a loud noise, which he described as a “bam.”²

Joshua Williams, a young miner who was on a mantrip exiting the mine, described the moment as “when the world came to an end.”³re explosions. The panel has issued its final report to the Governor, and the report can be viewed here.
CLICK HERE FOR FULL REPORT>>>

Upper Big Branch Report

FOREWORD

At approximately 3:02 p.m. on Easter Monday, April 5, 2010, a powerful explosion tore through the Upper Big Branch mine, owned by Massey Energy and operated by its subsidiary, Performance Coal Company, at the convergence of Boone and Raleigh counties in southern West Virginia.

Twenty-nine miners died and one was seriously injured as the enormously powerful blast rocketed through two and one-half miles of underground workings nearly 1,000 feet beneath the surface of the rugged mountains along the Coal River. The disaster has had grave consequences for a mining company, for a community and, most importantly, for the family members who lost men dear to them.

On April 13, 2010, then West Virginia Governor Joe Manchin III asked J. Davitt McAteer, former Assistant Secretary of Labor in charge of the federal Mine Safety and Health Administration, to conduct an independent investigation into the disaster. The Governor said, “We owe it to the families of the 29 miners we lost last week to find out what caused this. We owe it to them and every coal miner working today to do everything humanly possible to prevent this from happening again… I fully expect that we will learn ... from this and make dramatic changes to protect our miners.”¹

As a result of an inquiry that continued for more than a year, the Governor’s Independent Investigation Panel has reached the following conclusions:

The explosion at the Upper Big Branch mine could have been prevented.
The explosion was the result of failures of basic safety systems identified and codified to protect the lives of miners. The company’s ventilation system did not adequately ventilate the mine. As a result, explosive gases were allowed to build up. The company failed to meet federal and state safe principal standards for the application of rock dust. Therefore, coal dust provided the fuel that allowed the explosion to propagate through the mine. Third, water sprays on equipment were not properly maintained and failed to function as they should have. As a result, a small ignition could not be quickly extinguished.
Three layers of protection designed to safeguard the lives of miners failed at Upper Big Branch. First, the company’s pre-shift/on-shift examination system broke down so that safety hazards either were not recorded, or, if recorded, were not corrected. Second, the U.S. Mine Safety and Health Administration (MSHA) failed to use all the tools at its disposal to ensure that the company was compliant with federal laws. Third, the West Virginia Office of Miners’ Health Safety and Training (WVHST) failed in its role of enforcing state laws and serving as a watchdog for coal miners.
Regulatory agencies alone cannot ensure a safe workplace for miners. It is incumbent upon the coal industry to lead the way toward a better, safer industry and toward a culture in which safety of workers truly is paramount. A genuine commitment to safety means not just examining miners’ work practices and behaviors. It means evaluating management decisions up the chain of command – all the way to the boardroom – about how miners’ work is organized and performed.
The politics of coal must be addressed at both a state and national level. Coal is a vital component in our nation’s energy strategy. The men and women who mine it also are a national resource whose lives, safety and health must be safeguarded.

THE GOVERNOR’S INDEPENDENT INVESTIGATION PANEL

In forming the Governor’s Independent Investigation Panel (GIIP), Davitt McAteer enlisted a group of colleagues with expertise in coal mining, mining law, mining communities, occupational safety and public health. GIIP members participated in a joint federal and state investigation conducted both underground at Upper Big Branch and through witness interviews conducted primarily at the federal Mine Health and Safety Academy in Beckley, West Virginia.

On June 2, 2010, mine rescue personnel from the federal Mine Safety and Health Administration (MSHA) and the West Virginia Office of Miners’ Health, Safety and Training (WVMHST) re-entered the Upper Big Branch mine to assess conditions. It took several weeks before the mine was made safe for investigation teams. Final pre-investigative walk-throughs of the mine were conducted on June 25 and June 28.

The underground investigation officially began on June 29. The investigation teams, each with assigned duties (e.g., photography, mapping, physical evidence collection), included representatives from MSHA, WVMHST, Massey Energy and the UMWA. The GIIP, with its small numbers, selected teams with which to travel. The majority of the underground investigation was completed by January 14, 2011.

The GIIP also participated in nearly all of the witness interviews, which began May 10, 2010. Individuals interviewed included current and former employees of Performance Coal Company and Massey Coal Services; contractors employed at UBB; and UBB, MSHA and WMHST staff. Some family members also were interviewed privately, at their request.

More than 300 interviews were conducted, with the majority (221) taking place between May and August 2010. Eighteen corporate officials, including Don Blankenship, chairman and Chief Executive Officer of Massey Energy at the time of the explosion; Performance Coal president Chris Blanchard and Vice President Jamie Ferguson, and Massey Vice President of Safety Elizabeth Chamberlin, invoked their Fifth Amendment privilege against self-incrimination and refused to cooperate with investigators. (See Appendix)

The independent team also reviewed inspection records, mine plans and other documents. WVMHST made their UBB mine file available. MSHA provided violation data, citations, inspector notes and other records publicly available on its website but with certain fields of information redacted. Our request for un-redacted copies of some records (e.g., inspector notes) was denied; MSHA staff indicated that the Solicitor’s Office considered the information exempt pursuant to the Freedom of Information Act (FOIA).

FULL REPORT HTML/ONLINE CLICK HERE>>>

FULL REPORT IN PDF, CLICK HERE>>>

www.DavittMcAteer.com Davitt McAteer & Associates

Wonkblog Coal baron convicted of misdemeanor after mine disaster that killed 29, By Lydia DePillis December 3 Washington Post

Former Massey Energy chief executive Don Blankenship makes his way out of the Robert C. Byrd U.S. Courthouse in Charleston, W.V. (Tyler Evert/AP)

Wonkblog Washington Post Dec 3 2015

Coal baron convicted of misdemeanor after mine disaster that killed 29

But he got off on more serious charges, in one of the only criminal prosecutions of a mining executive in history. By Lydia DePillis December 3

In a rare prosecution of a mining executive for safety violations, former Massey Energy chief executive Don Blankenship was convicted by a federal jury on one of the three counts brought against him in relation to the 2010 Upper Big Branch Mine collapse in West Virginia that killed 29 people.

An investigation of the event found a plethora of warning signs before the accident, including sparking machinery and a buildup of toxic gases. The jury found Blankenship guilty of conspiracy to violate mine safety regulations, which is a misdemeanor, but acquitted him on the more serious counts of deceiving investors and regulators.

Blankenship’s attorney William Taylor said he will appeal the verdict — which could come with up to a year in prison — on the grounds that the indictment failed to produce adequate evidence of a conspiracy. Nevertheless, he viewed the ruling as more positive than not.

“You have to understand, this is an acquittal,” Taylor said. “Given where we started, with the high level of community prejudice, the result, while we’d like to have had an acquittal across the board, is much better than we expected.”

Another former Massey Energy executive, David Hughart, was sentenced to 42 months in jail in 2013 for his role in the collapse. Massey Energy’s parent company Alpha Natural Resources has already paid $209 million to families of victims of the disaster, which came after years of fines paid, it seemed, as if they were simply a cost of doing business. (Alpha Natural filed for chapter 11 bankruptcy in August.)

Although it was not everything prosecutors were hoping for, the conviction is more than what government lawyers have achieved in other cases involving mining fatalities. Few chief executives have been hit with criminal charges for accidents in their facilities. Many — such as another West Virginia coal magnate, Jim Justice — have even avoided paying avoided paying much in fines for hundreds of safety violations uncovered by inspectors.

“The fact is that we’ve been mining in this country since 1880, and this is the first time that this has happened,” said former federal mine safety chief Davitt McAteer, who conducted the investigation into the Massey Energy mine collapse. “So I think the consequences will send ripple effects through the industry, and not just mining.” Oil and gas executives will have to take notice as well, he says.

So what took so long? McAteer said that the declining influence of the coal industry made it easier for prosecutors to go after executives. “If you had asked me the question ‘Could this have happened 15 years ago?’ The answer is no,” McAteer said. “You wouldn’t have had the willingness of the U.S. attorney to accept that coal industry persons could be responsible. When coal was king, this could not have happened.”

The public visibility of the Upper Big Branch Mine disaster might also have given prosecutors the will to pursue Blankenship with everything they had. West Virginia University history professor Paul Rakes, a former coal miner, said the television coverage of the 1968 Farmington mine explosion created enough public pressure to pass the first landmark mine safety legislation in 1969.

“Up until that time period, coal mine disasters were somewhat regional,” Rakes said. With TV, “folks said ‘Whoa, this has gone too far.’ ” The same is true of the Internet age. “A public voice comes into play that’s going to force government officials to react,” Rakes said.

Not everyone agrees, however, that the Blankenship verdict will have much of an effect.

Blankenship was unusual among energy industry chief executives in the degree of involvement he had in the day-to-day operations at Upper Big Branch, which generated $2.3 billion in revenue in 2009. Former mine managers testified that he micromanaged every decision, demanding ever-greater output at the expense of safety.

Tony Oppegard, a Kentucky lawyer who has represented many coal miners, said that is exactly why other executives will still be nearly impossible to prosecute. “Blankenship was such an atypical mine operator. That’s why the government was able to bring changes against him in the first place,” Oppegard said. “Most CEOs are insulated from liability, in corporate offices in Pittsburgh and New York, and they’re not involved in the day-to-day operations of the mines.”

Oppegard said he is disappointed in the failure of politicians to enact more protections for miners in the wake of the disaster, as they did following catastrophic mining accidents in 1968 and 1976. The Mine Safety and Health Administration has updated some regulations to place greater emphasis on more egregious rule violations, but Oppegard says legislation is still needed to give mine inspectors subpoena power, for example.

“All mining safety legislation is written in the blood of miners,” Oppegard said. “When you have a major accident like Upper Big Branch, that’s the time when you think something should be done. Those miners died in vain.”

Lydia DePillis is a reporter focusing on labor, business, and housing. She previously worked at The New Republic and the Washington City Paper. She's from Seattle.

READ THE FULL STORY HERE>>>

www.DavittMcAteer.com Davitt McAteer & Associates

Further proof Congress could care less about American workers-Standard Journal Dec 10, 2015

Posted: Thursday, December 10, 2015 9:08 am

by Chris Brady | 0 comments

Lost amid the raucous presidential primary and tragedy of recent terrorist attacks across the globe is a key development near our own backyard regarding coal mining. It’s a clear illustration of Congress’ blatant disregard for the American worker, and his safety.

Don Blankenship, the former CEO of Massey Energy, was convicted last week of a misdemeanor count of conspiracy to violate mine safety regulations stemming from the death of 29 miners in a mine explosion April 5, 2010, at the Upper Big Branch mine in Naoma, W.Va. He faces up to a year in prison, as well as fines.

And while Blankenship and his team of high-priced D.C. attorneys avoided conviction on three felony counts, last week’s decision marked the first time in American history a mining operator had been held responsible for the death of mining employees. Additionally, Massey executive David Hughart was sentenced to 42 months in jail following sentencing in 2013 for his role in the tragedy. Several others, all the way down to the superintendent, received jail time, and nearly $209 million in settlement money was ordered to be paid to families in the wake of the largest mining disaster on U.S. soil since explosions in a Hyden, Ky. mine killed 38 miners in 1970.

Massey’s reputation prior to the Upper Big Branch disaster was well documented, however little was done to rein in the energy producer.

The first investigative report — produced by an independent team of investigators appointed by former W.Va. Gov., now U.S. Sen. Joe Manchin and led by former mine safety Chief Davitt McAteer — was clear in its blame. “Massey exhibited a corporate mentality that placed the drive to produce coal above worker safety,” it read. “Many systems created to safeguard miners had to break down in order for an explosion to occur.”

The report also blasted the MSHA, the federal Mine Safety and Health Administration, noting, “The disaster at the Upper Big Branch mine is proof positive that (MSHA) failed its duty as the watchdog for coal miners.”

During the trial, Blankenship was noted for having an especially hands-on role related to the day-to-day operations of the Upper Big Branch Mine, which generated an estimated $2.3 billion in revenue in 2009, the year prior to the explosion. Blankenship, during testimony, was said to have demanded increased output at the expense of safety.

While there are those who are pleased to see some level of accountability for those in power, many have expressed disappointed in Congress for not taking this opportunity to step up efforts to increase safety in notoriously dangerous occupation of mining.

“All mining safety legislation is written in the blood of miners,” said Tony Oppegard — a Kentucky attorney who has represented numerous miners over the years — in the wake of the Blankenship conviction. “When you have a major accident like Upper Big Branch, that’s the time when you think something should be done. Those miners died in vain.”

Congress hadn’t always been this callous.

Mining disasters in 1968 and 1976 jolted Congress to take action after decades of mining accidents had claimed thousands of American lives.

The Federal Coal Mine Health and Safety Act of 1969, known as the Coal Act, was ushered in following an underground mine explosion in 1968 at a Farmington, W.Va. mine that claimed the lives of 78 miners. With the Coal Act came the creation of the aforementioned Mining Health and Safety Administration.

The Federal Mine Health and Safety Act of 1977 amended the Act of 1969 in the wake of yet another mining disaster, the Scotia Mine disasters of March 1976. Explosions on March 9 and 11 claimed the lives of 26 miners in the Kentucky mine. The initial explosion killed 15 and the subsequent explosion killed 11 attempting to rescue the miners.

As is often the case, such disasters are necessary to spur Congress into action. The new laws did indeed create safer conditions for miners and were credited with reducing miner deaths by almost half into the 1980s.

Given Massey’s history of ignoring regulations, one would think Congress would step up efforts to more stringently enforce regulations and step up inspection efforts.

However, there’s a reason those on Capitol Hill have earned the moniker as the “Do-Nothing Congress” and Blankenship’s deep pockets and influence went a long way in state houses and Washington.

As we’ve seen over the years, dismal approval ratings in Congress is no deterrent, nor are they an impetus to enact meaningful change.

When one considers its lack of action on any number of issues regarding the safety and well-being of Americans — from mining to guns to veterans issues — Congress has a reputation well-earned.

Those in Congress should be ashamed of themselves.

Those of us who elect representatives to Congress need to take more of an initiative to remind those on Capitol Hill that they do indeed work for us, and that we demand action on matters of such vital national interest.

Legislation protecting American workers needn’t be written in the blood of dead Americans. But, as we’ve seen far too often, it has been.

Sadly, now the blood of Americans isn’t even enough for Congress to act.

Chris Brady is managing editor at the Standard Journal. He can be reached at chris@standard-journal.com

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www.DavittMcAteer.com Davitt McAteer & Associates

Two books shed light on WV coal history, REGISTER-HERALD, Daniel Tyson

Posted: Sunday, December 6, 2015 3:00 am

By Daniel Tyson REGISTER-HERALD REPORTER

By Daniel Tyson

Two new books from West Virginia University Press highlight the trials and tribulations of coal mining before the union gave miners the eight-hour work day, safety standards and collective bargaining.

The books, Davitt McAteer’s “Monongah” and David A. Corbin’s “Life, Work and Rebellion in the Coal Fields,” are rich in details, yet easy to read for those interested in state history. Neither is shy about blaming greed and out-of-state corporations for the ill-treatment of miners until President Franklin D. Roosevelt basically forced the union on coal companies.

Corbin’s book is the more scholarly one. It’s an overview the life of southern West Virginia miners, from birth to grave, giving special attention to religion, living conditions and immigrants.

Perhaps, the most interesting part of the book is his straight forward approach to telling the influence coal companies had on state officials.

The coal establishment controlled the state’s executive and legislative branch as far back as 1888. From 1888 until 1924, Corbin writes, nine governors were coal company officials or chosen by the industry “after certain understandings had been reach.”

The industry did face some opposition in the Legislature. Agriculture counties still possessed considerable influence and power in Charleston, which hindered some of the coal companies’ political plans.

Corbin writes after a period of time, the northern and eastern agriculture counties influence declined as southern West Virginia’s increased. That is when coal became king in West Virginia.

Under industrial influence, southern West Virginia became a mono-economy, with the coal industry calling the shots.

An example Corbin gives is how the state’s child labor laws were ignored by the coal operators. At the time, the mandated minimum working age was 14.

“These laws, however, contained so many defects and loopholes that the National Child Labor Committee ranked West Virginia 34th (out of 46) in child labor restrictions and last among the industrial states,” writes Corbin. “An investigator for this committee branded the child labor laws of West Virginia ‘absurd’.”

The laws at the time contained no educational requirements for working children, nor did the child labor laws detail which occupations were too dangerous for children, writes Corbin.

• • •

McAteer’s “Monongah” is about the 1907 mine disaster, deemed the worst industrial accident in U.S. history.

The book starts with the events of Dec. 6, 1907, at the Fairmont Coal Co.’s No. 6 and No. 8 mines. About 10:30 a.m., an explosion occurred officially claimed 367 men’s lives. To this day, the cause is still only speculation.

McAteer, a former U.S. assistant secretary of labor, studied a number of primary documents before penning “Monongah.” For more than three decades, McAteer studied every piece of information available on the explosion.

The book goes into great detail about the explosion, the political power plan after the deadly disaster — it was partly owned by a U.S. Senator and his contemporaries — and the area and its people around the mines.

This story has many sad events, but one of the saddest concerned fundraising efforts to help the thousands of family members affected by the explosion. A fund was set up with a goal of reaching $250,000. Only days into the fundraiser, the local Red Cross sent out an appeal for funds. The next day, the local newspaper published that the amount had been reached and to stop giving. Sadly, less than half the goal was reached and the Red Cross raised slightly more than $3,000 before calling off its efforts.

Both books are informative and quick reads. They shed light on events that were not taught in West Virginia history or were only a footnote. Give the books a read, disappointed you will not be.

Note: Full disclosure, for a short period of time Davit McAteer was the president of the college from which the author graduated.

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— Email: dtyson@ register-herald.com

www.DavittMcAteer.com Davitt McAteer & Associates

Jury didn’t know mine safety conspiracy carried just 1 year in prison by Ken Ward Jr., Staff Writer - Charleston Gazzette-Mail

Massey Energy CEO Don Blankenship looks around his chief counsel Bill Taylor after being found guilty of conspiracy on Dec. 3.

When jurors in the Don Blankenship trial went to a small conference room on Nov. 17 to begin their deliberations, they took a lot of stuff with them: More than 500 exhibits, legal instructions from U.S. District Judge Irene Berger, even coal-cutting bits from the longwall machine at Massey Energy’s Upper Big Branch Mine.

But the jury wasn’t given a copy of the federal mine safety law to take with them. And through a two-month trial with 27 witnesses, nobody explained to jurors that willfully violating the federal standards meant to protect the health and safety of the nation’s coal miners is a misdemeanor, classified by Congress as a minor crime.

So unless jurors ignored Berger’s instructions not to investigate the case on their own, they had no way of knowing that if they found Blankenship guilty of conspiracy — but checked one box and not another on their verdict form — the most time the former Massey CEO could ever spend in prison was one year.

Pat McGinley, a West Virginia University law professor who has followed the case, said that’s the way it is supposed to work in the U.S. criminal justice system. Congress writes the laws that set potential penalties for crimes. Juries decide who is guilty and innocent. And then judges pronounce sentences.

“The role of a jury is to decide the facts after sorting out the truth from all of the evidence presented at trial,” McGinley said. “It is the job of the court, not the jury, to decide on the punishment to impose on the guilty. If the jury were informed of the range of punishments that apply to each charge, there would be a real danger that the jury would usurp the role of the court.”

The Blankenship verdict, though, has restarted a push from mine safety advocates who say it’s time for federal lawmakers to amend the mine safety statute to toughen the potential penalties for coal operators who put the health and safety of miners at risk.

“When the consequences of the violations are so potentially profound, and so potentially deadly, it goes without saying that there ought to be a stiff penalty,” said Davitt McAteer, a longtime mine safety advocate who ran the U.S. Mine Safety and Health Administration during the Clinton administration.

During a press conference after the verdict, U.S. Attorney Booth Goodwin emphasized that in his view, “the most serious conduct” that Blankenship was accused of “was willfully violating mine safety laws and placing miners at risk.” Assistant U.S. Attorney Steve Ruby, the lead prosecutor in the case, likewise called the allegation of conspiring to violate mine safety and health standards “the heart of the criminal conduct” at Massey during Blankenship’s time as CEO.

But under the law, violating those safety standards — the rules that mandate proper ventilation, require adequate rock-dusting and limit exposure to dust that causes black lung — or even conspiring to violate them is a misdemeanor. The maximum penalty is one year in prison and a $250,000 fine.

The conspiracy charge against Blankenship could have been a felony, if jurors had checked off on the verdict form to signify that they also believed Blankenship had conspired to defraud MSHA by thwarting agency inspections and faking coal dust monitoring. That would have meant a maximum sentence of five years in prison.

Blankenship also faced, but was found not guilty of, two other felony counts that alleged he lied to securities regulators and committed securities fraud in saying Massey did not “condone” mine safety violations. Together, those two counts could have put Blankenship in prison for up to 25 years.

Blankenship’s defense team is already citing the fact that he was cleared of the felonies, and found guilty only of one misdemeanor, as a reason he should be free to travel to Las Vegas for Christmas and have his bond cut from $5 million to $250,000 pending his sentencing in early April.

But the day after the verdict, the ranking Democrat on the U.S. House Committee on Education and the Workforce said the Blankenship case shows the need for passage of the Robert C. Byrd Mine Safety Protection Act, which includes language making willful violations of federal mine safety and health standards felonies in certain situations.

“A misdemeanor sanction is a woefully insufficient deterrent for criminal conduct for an operator who repeatedly puts production ahead of safety requirements,” said Rep. Bobby Scott, D-Va.

The bill would make it a felony to willfully violate mine safety and health standards when doing so “recklessly exposes a miner to significant risk of serious injury, serious illness or death.” The maximum sentence would be five years in prison and a $1 million fine.

None of West Virginia’s three Republican House members are co-sponsors of Scott’s bill.

In the Senate, U.S. Sen. Joe Manchin, D-W.Va., is a co-sponsor of identical legislation. In a press release issued the day of the Blankenship verdict, Manchin’s office did not mention the bill or anything about increasing penalties for mine safety crimes.

Last week, Manchin spokesman Jonathan Kott said that the senator “has held events all across the state” to highlight the legislation and has “spoken with constituents, industry leaders, labor groups and his colleagues about the entire bill for the past 3 years.” Manchin’s office did not provide any specific examples.

Kott said Manchin “was very disappointed with the penalty handed down for the crime” in the Blankenship case and that, “hopefully this brings some much needed attention to the Robert C. Byrd Mine Safety Protection Act.”

Sen. Shelley Moore Capito, R-W.Va., is not a co-sponsor of the Senate version of the bill.

When she was in the House, Capito gave a floor speech against a bill with similar language regarding criminal penalties. Among other criticisms, Capito said the bill “imposes vague new standards for criminal liability, potentially criminalizing most infractions and subjecting officials to sanctions over which they have no direct control.”

Last week, Capito spokeswoman Ashley Berrang said while “we’ve just seen the current standard was sufficient to convict those who violate mine safety laws,” that, “going forward, [Capito] would be open to considering whether stricter penalties, like a felony, are necessary to deter violations of mine safety standards.”

Check the Gazette-Mail’s Blankenship trial page for complete coverage of the trial and the verdict, updates on the case, a timeline, exhibits and other features.

Reach Ken Ward Jr. at

kward@wvgazettemail.com,

304-348-1702 or follow

@kenwardjr on Twitter.

- See more at: http://www.wvgazettemail.com/blankenship-trial/20151212/jury-didnt-know-mine-safety-conspiracy-carried-just-1-year-in-prison#sthash.FYLthwEc.dpuf
www.DavittMcAteer.com Davitt McAteer & Associates

Don Blankenship Trial - A Refresher- Charleston Gazette-Mail

Published on Oct 1, 2015

Former Massey Energy CEO Don Blankenship will face three federal charges in connection with the 2010 Upper Big Branch mine explosion that killed 29 miners. This video explains Blankenship's history and the timeline of events leading up to the beginning of the trial. Read more here: http://www.wvgazettemail.com/blankenship

The following is a timeline of events that led to Thursday’s one-count conviction of former Massey Energy CEO Don Blankenship:

April 5, 2010 — At 3:02 p.m., an explosion erupts deep inside Massey Energy subsidiary Performance Coal’s Upper Big Branch Mine near Montcoal in Raleigh County. For hours, information about what happened — and about victims or survivors — is sketchy. Not until after 8 p.m. does Massey confirm that at least 7 miners are dead and at least 19 others unaccounted for. Five-and-a-half hours later, Massey issues a statement saying that 25 miners are dead and four more workers still missing.

April 10, 2010 — At about 12:30 a.m., then-Gov. Joe Manchin and mine safety officials announce that, after nearly a week of searching, hoping and praying, the bodies of the other four miners have been found. “We did not receive the miracle we prayed for,” Manchin said in a press conference. “So this journey has ended and now the healing will start.” By early on the morning of April 13, the bodies of all of the miners had been removed from the mine.

April 13, 2010 — As funerals begin in the Coal River Valley, and investigations are announced in Washington, D.C., and Charleston, Manchin appoints longtime mine safety advocate Davitt McAteer to conduct an independent probe of what happened at Upper Big Branch.

April 15, 2010 — Massey Energy’s board of directors warns against a “rush to judgment” about the disaster. CEO Don Blankenship had already told local media that “any suspicion that the mine was improperly operated or illegally operated or anything like that would be unfounded.”

April 25, 2010 — President Obama visits West Virginia to attend a memorial service for the UBB miners. He meets privately with victims’ family members, and says in a eulogy, “How can we let anyone in this country put their lives at risk by simply showing up to work; by simply pursuing the American dream.”

April 26, 2010 — The day after the memorial service, Massey Energy’s board holds a press conference in Charleston to defend Massey’s safety performance. Board member Stanley Suboleski tells reporters that “there was no evidence of a dangerous condition” prior to the explosion.

April 27, 2010 — As the first congressional hearings on UBB are held, MSHA chief Joe Main promises a long list of reforms aimed at preventing future mining disasters.

May 20, 2010 — Blankenship spars with Sen. Robert C. Byrd and United Mine Workers President Cecil Roberts over Massey’s troubled safety record during a Senate hearing. Byrd died a month later.

May 24, 2010 — Families of UBB miners tell lawmakers at a U.S. House Field Hearing that they had long been worried about safety conditions at the mine.

Dec. 3, 2010 — Massey announces that Blankenship will retire as CEO effective Dec. 31. His retirement deal will provide him with $12 million in cash.

Dec. 8, 2010 — Republicans in the U.S. House block an effort by Rep. George Miller, D-Calif., to pass a mine safety reform bill named for Byrd.

Dec. 10, 2010 — Blankenship asserts his 5th Amendment rights, refusing to testify in the government’s investigation of the mine disaster. More than a dozen other Massey officials also refused to answer questions from investigators.

Jan. 31, 2011 — Alpha Natural Resources announces that it is buying Massey Energy.

Feb. 28, 2011 — Massey security chief Hughie Elbert Stover is charged with lying to UBB investigators and trying to destroy evidence. After being convicted, Stover is sentenced to three months in prison.

March 22, 2011 — A former Upper Big Branch miner, Thomas Harrah is charged with lying about having a foreman’s license while performing safety checks at the mine between January 2008 and August 2009. Harrah pleaded guilty and spent 10 months in jail.

May 19, 2011 — The Governor’s Independent Investigation Panel, led by Davitt McAteer, releases a report that concludes Massey’s failure to follow basic safety standards — and a corporate culture that put coal production ahead of protecting workers — led to the UBB Disaster.

Oct 25, 2011 — A report by the United Mine Workers union calls the Upper Big Branch deaths “industrial homicide.”

Dec. 6, 2011 — U.S. Attorney Booth Goodwin announces his office has reached an agreement not to prosecute Alpha Natural Resources for any criminal liability it inherited when it bought Massey. The deal preserves Goodwin’s ability to seek charges against individuals from Massey. The same day, MSHA releases its report on the mine disaster, which finds the deaths were “entirely preventable.”

Jan. 20, 2012 — Alpha Natural Resources reached a deal to resolve wrongful death claims by the families of the miners who died at UBB.

Feb. 22, 2012 — Former UBB mine superintendent Gary May is charged with conspiracy to violate mine safety laws and cover up dangerous conditions. May pleads guilty in March and spends 21 months in jail.

Feb. 23, 2012 — The West Virginia Office of Miners’ Health, Safety and Training issues its report on the disaster.

March 6, 2012 — West Virginia lawmakers pass a mine safety bill that was weakened by negotiations with industry lobbyists and focuses on drug testing miners, despite the lack of a link between drug abuse and the UBB explosion.

Nov. 28, 2012 — Prosecutors reveal that a longtime Massey official, David Hughart, is cooperating in their probe and will plead guilty to taking part in a conspiracy to violate mine safety rules.

Feb. 28, 2013 — During a plea hearing in federal court, Hughart alleges that Blankenship was part of the conspiracy to violate mine safety laws. Hughart was sentenced to 42 months in prison. Hughart, who completed a drug treatment program and had his sentenced reduced as a result, is scheduled to be released on Dec. 12, 2015.

Oct. 31, 2013 — Alpha Natural Resources announces it is finalizing a $265 million settlement of a lawsuit it inherited that alleged Massey misled shareholders about its safety record prior to the UBB explosion.

Feb. 10, 2014 — Alpha announces that Goodwin’s office has “closed” its monitoring of safety reforms required by the company’s non-prosecution agreement, but Goodwin says his office’s criminal investigation was continuing.

Nov. 13, 2014 — A federal grand jury meeting in Beckley hands up a four-count indictment that charges Blankenship with mine safety and securities crimes.

Nov. 14, 2014 — U.S. District Judge Irene Berger issues a sweeping gag order that blocks public access to documents in the Blankenship case and prohibits public discussion of the case by lawyers, parties and victims. The gag order was later overturned by the 4th U.S. Circuit Court of Appeals in a case brought by various media outlets.

Nov. 20, 2014 — Blankenship is released pending trial after pleading not guilty and posting $5 million bond. The order releasing him restricts his travel to mostly Southern West Virginia, a mandate that prompts a repeated court fight with prosecutors over his requests to travel to Las Vegas, where he says he now lives.

March 10, 2015 — A grand jury issues a superseding indictment that combines two of the counts against Blankenship.

May 28, 2015 — A judge in Delaware rules that Alpha Natural Resources must pay Blankenship’s legal fees, which were estimated as of April 1 at $5.8 million.

June 12, 2015 — Berger delays Blankenship’s trial until Oct. 1 and moves the proceedings to Charleston.

June 15, 2015 — The 4th U.S. Circuit Court of Appeals rejects Blankenship’s continued effort to have all of the judges in Southern West Virginia disqualified from hearing the case against him. Blankenship alleged that the case was a selective and vindictive prosecution and part of a plot against him by Democratic political leaders in the state.

Oct 1. 2015 — Jury selection begins as nearly 90 potential jurors head to the Robert C. Byrd U.S. Courthouse in downtown Charleston. Media and members of the public are relegated to a separate courtroom where they watch jury selection through a video feed that is frequently inaudible.

Oct. 7, 2015 — The 15-member jury, which includes 11 women and 4 men, is seated. Attorneys for the prosecution and defense deliver opening statements, following by the government calling its first witness.

Nov. 3, 2015 — Alpha Natural Resources, which bought Massey in 2011, files a motion in bankruptcy court to try and shed its obligation to pay for Blankenship’s legal fees, which were estimated at $5.8 million in April 2015.

Nov. 16, 2015 — After 27 witnesses testify over 24 days, the government rests its case. In a surprise move, the defense rests without calling a single witness.

Nov. 17, 2015 — Three alternate jurors are dismissed as the 12-member jury, which includes eight women and four men, is given instructions from Berger before they begin their deliberations. Attorneys for the government and Blankenship deliver closing arguments.

Nov. 19, 2015 — Jurors send a note asking, “How long do we deliberate? We cannot agree.” Berger orders jurors to continue deliberations.

Dec. 1, 2015 -— The jury sends another note, indicating they remain deadlocked. Berger issues an Allen Charge, an instruction used to encourage a deadlocked jury to continue deliberating toward a verdict.

Dec. 3, 2015 — After about 50 hours of deliberations over 10 days, the jury finds Blankenship guilty of conspiring to willfully violate mine safety standards, a misdemeanor for which he could face one year in prison. The jury also returned a verdict of not guilty on the charges of securities fraud and making false statements in the wake of the Upper Big Branch Mine Disaster. Blankenship is scheduled to be sentenced on March 23, 2016.

- See more at: http://www.wvgazettemail.com/article/20151203/GZ15/151209838#sthash.zHzszciw.dpuf

www.DavittMcAteer.comDavitt McAteer & Associates