4th Circuit affirms Blankenship conviction

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4th Circuit affirms Blankenship conviction

Then-Massey Energy Co. CEO Don Blankenship speaks to reporters after the explosion at the Upper Big Branch Mine, in April 2010, that killed 29 workers.

Saying that the criminal provisions of the nation’s mine safety laws are intended to ensure that miner health and safety aren’t sacrificed for coal production and profits, a federal appeals court on Thursday affirmed the conviction of former Massey Energy Co. CEO Don Blankenship.

The 4th U.S. Circuit Court of Appeals upheld a series of trial rulings by U.S. District Judge Irene Berger and said the ability of prosecutors to go after mining company executives whose companies repeatedly ignore longstanding safety requirements is a key part of federal protections for mine workers.

Blankenship is in federal prison in California, serving a one-year sentence, the maximum penalty for a crime that federal law considers a misdemeanor. He was convicted in December 2015 of conspiring to violate federal mine safety standards at Massey’s Upper Big Branch Mine, where 29 workers died in an April 2010 explosion.

In a 34-page decision, a three-judge panel of the 4th Circuit soundly rejected defense arguments that the indictment against Blankenship didn’t properly outline the mine safety violations at issue, that Berger wrongly denied the defense the chance for a second cross examination of a major government witness and that the trial judge incorrectly instructed the jury about the prosecution’s burden of proof.

“After careful review, we conclude the district court committed no reversible error,” wrote Judge James Wynn. “Accordingly, we affirm.”

The 4th Circuit also flatly turned down Blankenship’s appeal argument that Berger was wrong to instruct the jury that Blankenship’s “reckless disregard” of federal mine safety and health standards amounted to criminal willfulness needed for a conviction.

Wynn explained in the opinion that Congress, in passing federal mine safety laws in 1969 and 1977 had intended to impose enhanced penalties — criminal liability for individual mine operators and company executives — precisely because mine operators could still “find it cheaper to pay minimal civil penalties than to make the capital investments necessary to adequately abate unsafe or unhealthy conditions, and there is still no means by which the government can bring habitual and chronic violators of the law into compliance.”

“Accordingly, Congress saw criminal penalties as a mechanism to punish ‘habitual’ and ‘chronic’ violators that choose to pay fines rather than remedy safety violations,” Wynn wrote. “Put differently, a ‘long history of repeated failures, warnings and explanations of the significance of the failures, combined with knowledge of the legal obligations, readily amounts to willfulness.’ ”

While Blankenship was not specifically charged with causing the explosion that killed the miners at Upper Big Branch, the 4th Circuit ruling noted that, in 2009, the U.S. Mine Safety and Health Administration identified 549 violations at the Raleigh County mine and, in the 15 months leading to the April 2010 disaster, Upper Big Branch had received the third-most serious safety violations of any mine in the United States.

“Many of these violations related to improper ventilation and accumulation of combustible materials — problems that were key contributing factors to the accident,” Wynn wrote.

The ruling noted, “Defendant was aware of the violations at the Upper Big Branch mine in the years leading up to the accident, receiving daily reports showing the numerous citations for safety violations at the mine.”

Also, the 4th Circuit decision included a detailed rejection of the arguments made by three coal industry trade groups — coal associations from West Virginia, Illinois and Ohio — that violations of complicated mine safety rules were impossible for operators to avoid and that the prosecution of Blankenship amounted to criminalizing the “tough decisions” that mining executives have to make weighing “production, safety and regulatory compliance.”

“By subjecting mine operators to personal liability, including incarceration, Congress forced mine operators to internalize the costs associated with noncompliance with mine safety laws, even when such noncompliance would be profit-maximizing from a business perspective,” Wynn wrote. “To that end, Congress said that operators should not balance the financial returns to increasing output against the costs of safety compliance.”

Wynn was joined in the opinion by Chief Judge Roger Gregory and Senior Status Judge Andre Davis. Gregory received a recess appointment — when Congress was out of session — by President Bill Clinton and was then reappointed by President George W. Bush. Wynn is a President Barack Obama appointee. Davis was appointed to a district court by Clinton and the appeals court by Obama.

The ruling was released on the 11th anniversary of a fire at Massey’s Aracoma Alma No. 1 Mine, in Logan County. That incident, which claimed the lives of miners Don Bragg and Elvis Hatfield, prompted a criminal case that brought plea agreements from several mid-level mine foremen and by the Massey subsidiary that operated the mine.

“It is a resounding victory and a total affirmation of the work that was done in our office holding Don Blankenship accountable for his significant crime,” said Charleston lawyer Booth Goodwin, who was the U.S. Attorney during the prosecution. “And there is no more deserving an individual to be held accountable than Don Blankenship.”

U.S. Attorney Carol Casto said in a prepared statement, “We are pleased with the Court’s decision, agree with the findings, and believe that justice was served.”

Bill Taylor, Blankenship’s lead defense lawyer, said his team is reviewing the 4th Circuit decision and “will make decisions in the next few days.”

Sen. Joe Manchin, D-W.Va., issued a news release saying that he hopes the 4th Circuit decision “compels Don Blankenship to finally accept responsibility for his criminal actions.”

Blankenship has 14 days to ask the full 4th Circuit to reconsider the case and 90 days to ask the U.S. Supreme Court to hear an appeal, according to a notice from the 4th Circuit. The U.S. Bureau of Prisons website says Blankenship is scheduled for release from prison on May 10. He turns 67 years old in March.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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