Inside Appalachia: Blankenship, Upper Big Branch and Mine Safety

Sep 25, 2015

Once he was considered untouchable, but next week former Massey Energy CEO Don Blankenship is scheduled to go on trial on conspiracy to violate mine safety standards and conspiracy to impede federal mine safety officials charges. Blankenship denies the charges.

Those charges stem from an investigation that followed the Upper Big Branch Disaster that killed 29 men in 2010. It’s a trial that folks in the coalfields never thought would happen.

In this episode, we take a look back at how we got here and talk about the significance of this case.  You can also hear part of a special investigative series of reports about outlaw coal mining companies, that keep operating despite injuries, violations and millions of dollars in fines.

Federal investigators have spent years since the disaster looking at the actions of Massey’s leaders, working their way up the corporate ladder.  Former Upper Big Branch mine superintendent Gary May cooperated with prosecutors and admitted in March 2012 to defrauding the government by tampering with methane monitors and falsifying documents. In 2013, former President of White Buck Coal Company David Hughart admitted to working with others to ensure that his mine and others, owned by Massey, would have advance warnings of federal inspectors.

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Blankenship is the highest-level manager to face charges in relation to mine safety violations. But just how significant is this case? Tony Oppegard has represented miners and their families for about 30 years. He also served as an advisor to Assistant Secretary of Labor for the Federal Mine Safety & Health Administration.  

But even though it’s historic, I don’t know how important it is, in terms of mine safety, just because the coal industry is a dying industry in my view,” Oppegard said.

The Charges

Don Blankenship  is not charged with causing the Upper Big Branch Disaster, he’s accused of conspiring to violate mine safety standards and conspiring to impede mine safety officials. The indictment alleges that Blankenship “conspired to commit and cause routine, willful violations of mandatory federal mine safety and health standards.” The charges carry a maximum penalty of 31 years in prison.  

Blankenship and his lawyers are not commenting publicly ahead of the trial. But shortly after Blankenship was indicted last November, his attorney, William Taylor, issued a statement saying his client was innocent of the charges. Taylor called Blankenship a “tireless advocate for mine safety.” Taylor also said the indictment was a result of Blankenship’s criticism of lawmakers and regulators.

Massey Energy Co. Chairman and CEO, Don Blankenship, second from right, attends a press conference with board directors, from left, Robert Foglesong, Bobby Inman, and Stanley Suboleski, Monday, April 26, 2010 at in Charleston, W.Va. Air samples did not show high levels of explosive gases just before an explosion in Massey's Upper Big Branch coal mine that killed 29 workers, the mine's owner said Monday.
Credit AP Photo

Blankenship has long maintained that he did nothing wrong, and that safety was a priority at his operations. In 2013, The Charleston Gazette reported that Blankenship wrote on a blog post, quote, “If they put me behind bars, it will be political.”

The indictment of Blankenship says that he knew the mines - owned by Massey and including Upper Big Branch - were committing hundreds of safety-law violations every year.

According to court documents, the prosecution’s case basically hinges on proving Blankenship’s management style.  They need to show that he was behind decisions to violate safety standards.

Blankenship on Trial

West Virginia Public Broadcasting will be reporting daily from the courtroom as Blankenship’s trial progresses. You can hear those reports on the radio and on the blog and podcast “Blankenship on Trial.”

This trial has a lot of importance for people here in southern West Virginia whose loved ones lost their lives in the Upper Big Branch Mining Disaster.

Ashton Marra has the first installment of this episode. She talked with Howard Berkes, an investigative reporter for NPR focusing on coal mine and workplace safety. Also joining Ashton and Howard in this conversation is Mike Hissam, he’s a partner at the Charleston law firm Bailey and Glasser and a former Assistant U.S. Attorney for the Southern District of West Virginia. We’ll start with an explanation of the charges against Don Blankenship from Mike Hissam.

Who is Don Blankenship?

Credit Jacquelyn Martin / Associated Press

I don't care what people think. At the end of the day, Don Blankenship is going to die with more money than he needs. - Don Blankenship

Blankenship has been a controversial figure for years - even before the Upper Big Branch Disaster.  According to a website he created about himself, he’s a West Virginia native, born in 1950 and raised by his mother in Mingo County. He attended Marshall University and during the summer he washed cars and worked in the coal mines to pay tuition. Eventually, he earned  his CPA certification. In 1982, he started to work for Massey Coal Company and quickly moved his way up the corporate ladder.  While he was CEO of Massey Energy he lived in the coalfields, unlike most coal operators.  

Screenshot of Don Blankenship's self description on his website, donblankenship.com

The former mayor of Matewan, West Virginia  Jonny Fullen, praised Blankenship  in a film by West Virginia Public Broadcasting that originally aired back in 2005 called the The Kingmaker. It profiled Don Blankenship.

Blankenship himself didn’t speak to the producer of the film, West Virginia Public Broadcasting’s Anna Sale, but the Kingmaker includes video of Blankenship from television commercials and speeches. The documentary was made about a year after Brent Benjamin won a seat on the West Virginia Supreme Court. Blankenship spent more than 3 million dollars to unseat incumbent Warren McGraw. He spent $1 million to influence public policy through TV commercials, and ads and spoke at different events.  

Upper Big Branch

The largest mine disaster in more than 40 years happened at a then-Massey Energy owned mine in  Montcoal West Virginia in 2010.

Credit Mine Safety and Health Administration

There were two survivors of the disaster. One of them was Stanley “Goose” Stewart. He spoke with Inside Appalachia host Jessica Lilly in 2012.

Working under Massey, they didn't care. For some reason they seemed that was in their agenda to just break the rules. They didn’t have to follow the law. They had a mentality that the laws were stupid. That’s my take on it. - Stanley "Goose" Stewart

Over the past five years, Jessica Lilly has spent time with several families of the victims, especially Gary and Pattry Quarles.

An independent investigation into the Upper Big Branch disaster concluded that it was “a failure of basic coal mine safety practices” that claimed the lives of 29 men. A team led by the former head of the federal Mine Safety and Health Administration found mining company, Massey Energy to be negligent but also criticized the oversight by the federal Mine Safety and Health Administration and the West Virginia State Office of Miner’s Health Safety and Training.

The year before the blast that killed 29 men, MSHA issued more than 500 citations at the Upper Big Branch mine.

So did anything change after the Upper Big Branch Disaster that made working in the coal mines any safer?  Well, Tony Oppegard, former Assistant to the Secretary of Labor at the Mine Safety and Health Administration, points out that no federal legislation has been passed to improve mine safety since the blast.

U.S. Attorney’s Office closed the Non-Prosecution Agreement, with the mine’s current owner, Alpha Natural Resources, in regards to the investigation into the Upper Big Branch explosion. As a company, Alpha can’t face charges, the but the agreement did not let individuals off the hook. That agreement included Alpha building a state-of-the-art mine safety training facility and leadership program.

Outlaw Operators

An investigation last year by NPR and Mine Safety and Health News, revealed that some regulations already on the books aren’t having the intended impact. Coal mines are some of the nation’s most dangerous places to work.  

This photo of Roy Middleton working underground at the Kentucky Darby mine now sits on the mantel in the Middleton home in Harlan County, Ky. He was killed after an explosion in 2006.
Credit Anna Boiko-Weyrauch / NPR/Original photo courtesy of the Middleton family

Federal regulators issue citations and fines when mines violate safety standards. That’s supposed to discourage unsafe practices by making them expensive. The joint investigation found part of that system isn’t working. Thousands of miners are still put at risk of serious injury... and even death.

Special thanks to NPR, Appalshop, and WCHS Television for help producing this week's show.

Music in today’s show was provided by Andy Agnew Jr., Jake Scheppes, Alan Cathead Johnston and Stacy Grubb, with “Montcoal West Virginia”,  and Kathryn Claire, who performed "Miner’s Lullaby" from her album Shimmering Blue. "Miner's Lullaby" was written by James Low.

 Send that in a tweet to InAppalachia. You can also talk with our host, Jessica Lilly, at JessicaYLilly, and our producer, Roxy Todd, at RoxyMTodd. You can also send us an email at: feedback@wvpublic.org.

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