Saturday, June 9, 2018

Welcome to www.DavittMcateer.com

J. Davitt McAteer is an American lawyer, author, and activist from Fairmont, West Virginia. McAteer was appointed to the position of assistant secretary for the Mine Safety and Health Administration from 1993 to 2000 under President Bill Clinton. Throughout his career, McAteer has been an advocate for safe working conditions for miners, particularly in the coal industry. After the Upper Big Branch Mine disaster of 2010, where an explosion caused by negligence led to the death of 29 miners, McAteer Served on Governor Earl Ray Tomblin's independent investigation panel to determine the cause of the explosion. McAteer is the author of "Monongah: The Tragic Story of the 1907 Monongah Mine Disaster".
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Wednesday, April 25, 2018

Davitt McAteer: South Africa's new leader has the experience to get his country back on track

By Davitt McAteer
Mar 18, 2018

South Africa’s Cyril Ramaphosa, union organizer, negotiator, constitution drafter, industrialist and mining magnate, is off to a fast start as his country’s fourth post-apartheid president. He needs to be, given the Augean stable he inherits from Jacob Zuma whose by-the-rules sacking he adroitly engineered in early February.

Zuma, a populist with a culturally conservative rural base, handed his family and friends the keys to South Africa’s treasury and let them drive Africa’s most advanced economy into the ditch, leaving it almost as wrecked as it was in the dying days of apartheid. Unemployment is at levels last experienced in the U.S. in the 1930s. Per capita GDP is falling. With Moody’s threatening to downgrade South Africa’s rand-denominated debt to junk, there is little juice to prime the pump.

If anyone is up to the challenge, it is Ramaphosa, whom I first met in 1983 when he was successfully building South Africa’s National Union of Mineworkers to represent workers in the gold, platinum and other mines then at the heart of the South African economy. It was a remarkable feat against impossible odds.

The South Africa mining industry’s health and safety record at the time was appalling with 600 or more deaths annually in the gold mines alone. I was running the Occupational Health and Safety Law Center in Washington and the union sought our help. Virtually all the victims were black, treated as disposable and barred from skilled jobs that required certification, including foreman. They lived without wives or family in huge fenced-off camps under armed guard. Discipline was brutal.

Ramaphosa was not what I expected. He had endured extended spells of solitary confinement for his politics but retained his sense of humor. Was he worried the authorities would have us watched? I asked.He laughed. “You can be sure they will follow you, tap your phone and know of every contact you make. But they’re as dumb and mistake-prone as we are, so they will screw it up just like we do.”We drove at breakneck speed (he is a notoriously bad driver) to one of South Africa’s largest gold mines, where he invited me to join his miners for lunch in their segregated mess hall. An armed guard halted us: No whites allowed.As if on cue, a phalanx of 300 miners appeared out of nowhere. Ramaphosa calmly told the guard I was his guest. The guard looked at the phalanx and stood aside.Over stew, I said that had been a little unsettling.Simply part of the transition from the old South Africa to the new, my host chuckled.For the next several years, we worked on a safety program for his members. I watched Ramaphosa emerge as the ANC’s lead negotiator in the bloody but ultimately miraculous process that led to Nelson Mandela’s election in 1994. He would go on to perform the same role in the drafting of South Africa’s new constitution.His formidable strengths as a negotiator and organizer, his ability to out-prepare adversaries and his mastery of strategic patience earned him the respect of mine owners and politicians alike.Mandela hoped Ramaphosa would succeed him, but the job went to Thabo Mbeki. Ramaphosa, a lawyer by training with a strong entrepreneurial bent — he launched a construction company before becoming a labor organizer — turned his attention to becoming a captain of industry and to seeing that the commanding heights of the South African economy began to look less like the old South Africa.Critics complain he has accumulated wealth while the mass of South Africans remains locked in poverty. If so, one might equally condemn Warren Buffett and Jeff Bezos for failing to solve the problem of poverty and inequality in this country.

Ramaphosa, a “pragmatic visionary” in the phrase of one biographer, comes superbly equipped. He has dealt successfully with South Africa’s most daunting dilemmas from a uniquely wide range of perspectives. He has the humility not to think of himself as the sole savior of the country. His sense of humor will keep him grounded in the long battles ahead. And polls show he has the support he needs to face down radicals and populists inside and outside the ANC.

Stimulus, Ramaphosa recognizes, must come in the shape of private investment, which means restoring business confidence. With the return of ministers Zuma fired for being honest, competent and respectful of reality, he has put in place a solid economic team.

He still has to be wary of a backlash from the left. In his final weeks in office, Zuma tried to save himself by promising free university education, a piece of crowd-pleasing fiscal folly Ramaphosa will now have to walk back. He will also need to reassure markets that his heavily hedged lip-service in support of uncompensated land expropriation is just that, and a constitutional impossibility besides.

Detoxing South Africa after the Zuma years will be hard, but with Cyril Ramaphosa there is hope. Rest assured he will not be spending his early mornings tweeting mindlessly about whatever pops into his head.

Best of luck to this solid, honorable man and his country.Davitt McAteer, an attorney and author, headed the U.S. Mine Safety and Health Administration from 1992 to 2000.

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Mines owned by Gov. Justice missed deadline for installing safety tech By Kate Mishkin Staff writer Apr 24, 2018 (0)

Mines owned by Gov. Justice missed deadline for installing safety tech

By Kate Mishkin Staff writer
Apr 24, 2018

Two mines owned by Gov. Jim Justice are among only three across West Virginia that failed to install life-saving technology to prevent miners from being crushed to death by fast-moving machinery in underground coal mines on the job.

The two McDowell County underground mines, Pay Car 57 and Pay Car 58, missed the deadline to install proximity detection systems, which shut down underground mining machines before they get too close to workers, according to violation reports obtained by the Gazette-Mail.

The systems would save miners from one of the most common causes of injury and death: being crushed by machinery. Across the country, 35 miners died by being pinned, crushed or struck by continuous mining machines in underground coal mines between 1984 and 2015, according to the U.S. Mine Safety and Health Administration. Proximity detection systems, which include a machine-mounted component and wearable tag, could prevent 50 injuries and 10 deaths nationwide over the next decade, according to MSHA.

The state’s top inspectors started urging officials to require proximity detection systems as early as 2008, but the Board of Coal Mine Health and Safety didn’t vote to mandate it until 2014.

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Saturday, February 24, 2018

A West Virginia newspaper is in bankruptcy. The powerful coal industry celebrates. By Steven Mufson The Washington Post Feb 17, 2018 Updated Feb 17, 2018

A West Virginia newspaper is in bankruptcy. The powerful coal industry celebrates.

Google Street image

The offices of The Charleston Gazette-Mail on Virginia Street in Charleston, W.Va.

By Steven Mufson
The Washington Post

Feb 17, 2018 Updated Feb 17, 2018

One day after the Charleston Gazette-Mail declared bankruptcy, coal industry attorney Robert McLusky made light of the newspaper's plight.

Speaking at a West Virginia mining symposium Jan. 31, McLusky told the hundreds of executives there that he was sorry that the Gazette-Mail's hard-hitting coal correspondent Ken Ward wasn't there. Playing off the possibility that reporters would get "pink slips," McLusky held up a pink sheet of paper on which he had printed Ward's name and a notice of potential layoffs at the newspaper.

The crowd laughed.

McLusky later called Ward to apologize. "I took a shot in front of a pro-coal audience that I regret, that I shouldn't have taken," he said in an interview.

Yet McLusky's comments betrayed the ill will between the coal industry, which has dominated the economy and politics of West Virginia for the better part of a century, and the state's premier newspaper, the feisty Gazette-Mail, which has played an important role in checking the industry's power.

The Gazette-Mail hasn't won many friends in coal country, where executives worry more about mining jobs than they do about the 210 jobs in danger at the Charleston newspaper. McLusky said: "I think it's safe to say that the coal industry as a whole does not view the Gazette as giving them balanced coverage."

Others see it differently. "It has been the voice of reason in our state," said Davitt McAteer, a former head of the Mine Safety and Health Administration who led an independent investigation of the Upper Big Branch Mine disaster. "When you have a one-horse economy as West Virginia is and has been, the fact that there's one paper willing to not be a lap dog for that industry" is important, he said.

The incident at the mining conference - which was reported by industry news publication S&P Global correspondent Taylor Kuykendall - lasted just a moment. But over the past century, newspapers and coal mining companies have grown rich and now poor together, both victims of new technologies and broader changes in the economy. And both are hoping for survival, if not revival.

The Gazette-Mail will probably be bought by Ogden Newspapers for $11 million. The bankruptcy court will decide how to divide that among creditors, who are owed more than $31 million. Nearly half that amount, $15 million, is owed to United Bank, and $12 million is owed to the federal Pension Benefit Guaranty Corporation.

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Thursday, February 8, 2018

Citizen science gathering planned Times West Virginian Sep 5, 2016

MORGANTOWN — The West Virginia Department of Environmental Protection (DEP) is teaming with West Virginia University, Trout Unlimited and several other advocacy groups to hold a citizen science gathering later this month in Morgantown.

The event will be at the WVU College of Law on Sept. 24 from 8:30 a.m. to 4 p.m. and will include presentations and roundtable discussions about the applications of citizen science.

Citizen science, or “citsci,” involves the collection of environmental data by concerned citizens. This data can sometimes be used to shape environmental policy, but often there is confusion on the part of the citizens about best practices for collection and presentation of that data. The purpose of this gathering is to help eliminate some of that confusion.

“Citizen volunteers and monitors are the backbone of a good regulatory program,” said Wendy Radcliff, the DEP’s environmental advocate. “They care about their community and work hundreds of volunteer hours each year to preserve and protect it.”

Renowned coal mine safety expert Davitt McAteer will speak on the legal applications of citizen science, and there will be presentations from WVU’s Michael McCawley, Gretchen Gehrke of PublicLab.org and Ryan Grode of the Southwest Pennsylvania Environmental Health Project.

The registration fee for the gathering is $20, and the registration deadline is Sept. 14.

To register or for more information, contact Diana Smith at 304-926-0499 ext. 1329 or diana.k.smith@wv.gov.

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Trump DOJ urges court to not hear Blankenship appeal

Ken Ward Jr.
Aug 25, 2017

www.DavittMcAteer.com Davitt McAteer & Associates

The Trump administration Friday urged the U.S. Supreme Court not to hear former Massey Energy CEO Don Blankenship’s appeal of his conviction for conspiring to violate federal mine safety and health standards at Massey’s Upper Big Branch Mine, where 29 miners died in an April 2010 explosion.

U.S. Department of Justice attorneys filed a legal brief that asked the court to deny Blankenship’s petition seeking further review of his case. Blankenship had already served a year in federal prison, the maximum allowable for his conviction, but has been waging a self-funded public relations campaign saying he was wrongly convicted and arguing his widely-discredited theories about the cause of the Upper Big Branch explosion.

The Justice Department response comes three months after Blankenship’s defense attorneys filed their Supreme Court petition and follows the department twice receiving extensions of time from the court.

Blankenship’s lawyers argue that the 4th U.S. Circuit Court of Appeals, which upheld his conviction, was wrong on two legal points: They say that U.S. District Judge Irene C. Berger incorrectly instructed the trial jury that Blankenship’s “reckless disregard” of federal mine safety and health standards amounted to the criminal willfulness needed for a conviction and that Berger was wrong to deny the defense the chance for a second cross-examination of former Massey official Chris Blanchard, a major government witness.

In their 31-page response, the DOJ mostly repeats the findings of the appeals court and tells the justices that the 4th Circuit and Berger were correct.

Regarding the definition of criminal willfulness, the DOJ brief says that the 4th Circuit correctly held that a mine operator willfully violates a safety standard if he either knows that his conduct violates that standard or recklessly disregards the standard’s requirement.

A footnote says that Blankenship “could not plausibly argue” that he lacked knowledge of relevant safety standards, because “he received and reviewed ‘daily reports’ of citations” at Upper Branch that specifically identified the mine’s safety violations.

Justices have not yet decided if they will hear the case, but a Supreme Court petition is a long short. The court hears only about 80 cases a year out of the 7,000 to 8,000 appeals that are filed annually. About another 100 cases are decided by the court without a hearing, according to the court’s website.

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WV coal miner killed Ken Ward Jr. May 19, 2017

A coal miner was killed late Thursday in Wyoming County, officials confirmed Friday.

Luches Rosser, 44, of Man, was killed while he was working at the Pinnacle Mine, an underground operation near Pineville, according to state and federal agencies and the United Mine Workers union, which represents hourly workers at the mine.

Rosser is the fourth coal miner to die on the job this year in West Virginia. Three miners died in West Virginia in all of 2016, according to data from the U.S. Mine Safety and Health Administration. This year’s total of mining deaths is also greater than the state’s count of two for the entire 2015 calendar year. Seven coal miners have died on the job nationwide so far in 2017, according to MSHA.

The Pinnacle Mine is controlled by ERP Compliant Fuels, a firm started by a group called the Virginia Conservation Legacy Fund, which has been buying up troubled coal properties in the hope of using profits for tree-planting reclamation that would help fight climate change.

ERP general counsel Brent Mickum described Rosser’s death as having been classified as involving “haulage,” which would mean it occurred during the transport of coal or possibly supplies. Mickum said he had few other details, but that, “He was treated at the site to try to resuscitate him and those efforts, sadly, were not effective.”

Mickum said that Rosser was married and had four children. He said he had no other details.

The state Office of Miners’ Health, Safety and Training said in a short prepared statement that Rosser was operating an electric-powered track- mounted underground locomotive at the time of the incident. The state said the incident occurred at 11:18 p.m.

Amy Louviere, an MSHA spokeswoman, said the accident happened Thursday night and that Rosser died Friday morning at a local hospital.

Preliminary information from MSHA was that Rosser and another miner were traveling in the supply locomotive when a pole that connects the locomotive to its power supply wire came off that wire, which is known as a “trolley wire.”

“While the locomotive was still moving, the victim raised up to grab the trolley pole to place it back on the trolley wire, when his head contacted the mine roof,” according to the preliminary information from MSHA.

Gov. Jim Justice’s office issued a statement in which the governor said he and his wife were praying for Rosser and his family.

“It’s never easy to see someone so young leave us and it breaks my heart when West Virginia loses a member of the coal community,” the statement said. “I spent many years of my childhood in Wyoming County and my roots are deep there. Great coal mining families always come together, and that’s what we have to do at this time.

Grant Herring, the governor’s press secretary, did not respond to a question asking what actions the administration was taking in response to this year’s increase in coal-mining deaths in West Virginia.

One of the four deaths occurred at a coal preparation plant owned by the governor’s family mining operation. The company, Justice Low Seam Mining, was fined the state maximum of $10,000 for a violation cited by state inspectors at the preparation plant, which was named the JC Jim Justice II plant for the governor.

Longtime mine safety advocate Davitt McAteer said Friday that the increase in deaths so far this year should be a concern for the state’s coal industry, for regulators and for political leaders.

“When you see the numbers drifting, then you have to say, ‘Is there something in the system that should be in place that is not being carried out?’ ” McAteer said. “You have to look at the pattern. It’s worrying and it’s something someone ought to take a hard look at.”

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702

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Gazette editorial: WV’s disposable miners-Mar 22, 2017

Incredibly, Republicans who control West Virginia’s Legislature want to weaken coal mine safety policing. One bill, Senate Bill 582, would strip state inspectors of the power to issue violation notices to mines unless they can prove there’s “imminent danger” of death or injury. Instead, the safety agents could issue only tepid “compliance assistance visit notices.”

“It completely guts the state laws,” United Mine Workers union safety director Josh Roberts said. “You’re taking back decades of laws.”

Mine safety crusader Davitt McAteer said the GOP bill is “breathtaking in scope,” adding:

“It’s shocking that, after all these years and the number of West Virginians who have died in the mines, for the state to even consider this.”

The New York Times said of West Virginia’s backpedal:

The Upper Big Branch Miners Memorial is unveiled in Whitesville in 2012.

KENNY KEMP | Gazette-Mail file photo

“President Trump’s vow to bring back the coal industry’s heyday is a delusion. But it’s already inspiring Republican legislatures in Appalachia to resurrect a grim element of those boom times: loose safety laws that endangered miners’ lives and protected owners’ profits.”

The national newspaper said the Trump administration is “stocked with anti-environment industry sycophants” who want to enrich mine owners. “To that end, it is moving to help surface mine operators by eliminating protections for Appalachian streams and hamlets inundated by mine wastes.”

It continued: “In West Virginia, the Republican-controlled Legislature is aiming to weaken mining law by replacing actual safety inspections with something termed ‘compliance visits and education.’ State safety and health standards, developed across years amid the grief of repeated mining disasters, would be eliminated. Powerful West Virginia lawmakers are behind the measure, which marks a sad retreat from the statehouse safety concerns voiced in 2010 when the Upper Big Branch disaster took 29 miners’ lives.”

Appalachian politicians traditionally pander to coal owners, the paper said, “but this latest bout, launched in tandem with Mr. Trump’s fantasy job promises, can only leave remaining miners in greater danger on the job.”

Even if all those coal jobs did come roaring back, West Virginia would still want its miners to come home after every shift. West Virginia lawmakers, of all people in the world, should understand that and work to make it happen.

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Wheeling Jesuit says outside review found no fraud The Associated Press Apr 19, 2012

MORGANTOWN, W.Va. -- An independent investigation of Wheeling Jesuit University's billing practices for federal grants and programs in 2008 found no violations of laws or regulations, the school's president said Wednesday.President Rick Beyer said the Board of Trustees voted Wednesday to turn that report over to the U.S. Attorney's Office in Wheeling, adding that the Catholic school in the Northern Panhandle is cooperating in the investigation.Federal investigators are looking into whether the university and a vice president, former Mine Safety and Health Administration chief J. Davitt McAteer, conspired to use millions of federal grant and program dollars from NASA and other federal agenices for personal gain.Some of the allegations against the school and one of the world's foremost experts on mine safety are contained in an affidavit filed by an agent in the NASA Office of Inspector General.Beyer, who issued a similar statement to the Jesuit community late Wednesday, said the administration could only speculate on the focus of the investigation until an affidavit in the case was unsealed. It then decided to release the 2008 report.The university's audit committee requested that review by "independent, special counsel experienced in federal grants who had served as general counsel for a major research university," Beyer said.That person, who was not named in Beyer's statement, "determined the university's cost-allocation method to be permissible under federal regulations and found no improprieties."The school is "committed to openness in all dealings" and to transparency in its cost-allocation methods, Beyer said. It has enlisted help from federal grant experts and a former United States Attorney to "aid us in full cooperation with this investigation," he added.The NASA investigator's affidavit said he has evidence to suggest McAteer and entities within the university fraudulently billed expenses to federal grant programs or cooperative agreements from 2005 through 2011.Those expenses range from McAteer's salary - which surged from $130,300 in 2006 to $230,659 by 2008 - to cellphones, computers, technical support and salaries for other staff, including a secretary in McAteer's Shepherdstown private law office.McAteer's attorney hasn't commented on the allegations, but the affidavit suggests he and the university could face five possible federal crimes - theft of federal funds; major fraud; conspiracy; false claims; and wire fraud.McAteer also is director of Wheeling Jesuit's National Technology Transfer Center and its Erma Ora Byrd Center for Education Technologies, which is named for the wife of the late longtime U.S. Sen. Robert C. Byrd.The technology transfer center does work on mine safety and health, missile defense, health technology and small business partnerships. The Center for Educational Technologies has housed the NASA-sponsored "Classroom of the Future" program since 1990. The space agency began construction of the center in 1993 and later helped build the educational technologies center.Between fiscal years 2000 and 2009, NASA gave Wheeling Jesuit more than $116 million, more than $65 million of that after McAteer took over the school's Sponsored Programs Office in 2005.A finance manager in that office told the investigator that McAteer created the Combined Cost Management Service Center when he took over. Merging the billing of the two centers allowed him "to control and consolidate all the expenses, regardless of whether such expenses were related to the federal awards."McAteer was hand-picked by West Virginia's former governor, U.S. Sen. Joe Manchin, to oversee thorough, independent investigations of three coal mine disasters since 2006. The Sago Mine explosion trapped and killed 12 men in January 2006, while the Alma No. 1 mine fire weeks later killed two more. McAteer also issued the first report on the 2010 Upper Big Branch explosion, which killed 29.The reports he authored are now among the evidence that federal investigators are studying.McAteer has also been a media commentator on cases ranging from the successful rescue of 33 Chilean gold and copper miners trapped underground for nearly 70 days in 2010 to the collapse of Utah's Crandall Canyon mine and the death of six miners, two rescuers and a federal inspector. READ THE FULL ARTICLE HERE>>>

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W.Va. college says internal review found no fraud- Associated Press

MORGANTOWN, W.Va. -- The president of Wheeling Jesuit University says a 2008 internal investigation found billing practices now under investigation by federal prosecutors violated no laws.President Rick Beyer says the report by independent special counsel has been turned over to the U.S. Attorney's Office for review.He says the school has been and will remain transparent about its cost-allocation methods.Federal prosecutors are investigating whether the school and vice president Davitt McAteer conspired to misuse millions of grant dollars from NASA and other federal agencies for personal gain and the school's benefit.The allegations are contained in an affidavit that an agent in the NASA Office of Inspector GeneralBeyer says Wheeling Jesuit has enlisted help from federal grant experts and a former U.S. attorney to help it cooperate in the probe.

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