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Less than a year before the Upper Big Branch Mine Disaster, then-Massey Energy CEO Don Blankenship was warned by one of Massey’s top safety officials about serious problems at his company’s operations, according to a new memo that surfaced earlier this year and now is among the key evidence prosecutors hope to use to prove criminal charges against Blankenship.

The June 25, 2009, memo to Blankenship from then-Massey lawyer Stephanie Ojeda summarized the safety concerns being raised by Bill Ross, a former U.S. Mine Safety and Health Administration official who had left MSHA for a job as a top mine ventilation expert for Massey.

“We need to change the way we do business,” says the memo, which is stamped “CONFIDENTIAL — ATTORNEY CLIENT PRIVILEGED — ATTORNEY CLIENT WORK PRODUCT.”

“The rules of mining have changed, but we and the way we do business have not,” says the eight-page memo, which was emailed to Blankenship and then-Massey officials Chris Adkins, Shane Harvey and Stan Suboleski.

Ojeda wrote that the memo was a report of a meeting she held with Ross and Suboleski on June 17, 2009, to discuss safety violations Massey operations were receiving. Ross had talked to a variety of Massey miners and became extremely concerned.

“Bill has often heard in his travels around Massey, ‘We have been told to run, run, run, no matter what. We will fix it when they find it,’ ” the memo from Ojeda says. “Bill explains that this is no way to run a coal mining business. When we receive one violation, it means that we have failed.”

The memo references large numbers of violations for mine ventilation problems, “clean up,” roof control and electrical issues. It says that Massey miners and foremen complained they are “continually forced to operate with skeleton crews” that don’t provide enough staff to operate mines properly.

“Most say that if they had the opportunity, they would leave because of the long hours and because they are given more to do than they can reasonably get done,” the memo says.

The Ojeda memo was filed in U.S. District Court in Charleston Sunday night by U.S. Attorney Booth Goodwin in response to a motion that Blankenship defense lawyer Bill Taylor filed earlier Sunday, asking U.S. District Judge Irene Berger to block prosecutors from talking about potential testimony from Ross during their opening arguments in Blankenship’s trial.

In their legal filing, prosecutors say that they have a recording of a telephone call that Blankenship made after seeing the Ojeda-Ross memo in which Blankenship said he hoped that the memo “was highly confidential because I don’t know, I don’t really know what to do with it, because I meant to keep it privileged” and that the memo is “bad because, like, for example, if that was a fatal today or if we had one, it’d be a terrible document to be in discovery” if Massey were sued.

Blankenship says in the phone call, according to prosecutors, that the Ross interview with Ojeda about Massey’s performance “regarding MSHA’s safety is worse than a Charleston Gazette article.”

Blankenship faces three felony counts that allege he conspired to violate mine safety standards and hide the resulting hazards from MSHA inspectors. He is also charged with lying to securities regulators and the investing public about Massey’s safety practices — touting the company as always trying to comply with the law — in order to try to stop the company’s stock prices and his personal wealth from plummeting after 29 miners died in an April 2010 explosion at Upper Big Branch.

Blankenship says that he is not guilty and is fighting the charges. His lawyers have indicated in court records that they hope to show that Blankenship was actually an innovator on many mine safety matters.

Jury selection began Thursday in the case and is expected to continue Monday morning at the Robert C. Byrd United States Courthouse in Charleston.

In a Sunday story, the Gazette-Mail noted that potential new evidence against Blankenship — in the form of possible testimony from Ross — had surfaced in a Delaware lawsuit that Blankenship had filed to force Alpha Natural Resources, which purchased Massey in June 2011, to continue to pay his legal costs in the criminal case against him.

The story quoted from a transcript of a trial in that case, but other records including the Ojeda-Ross memo have not previously been publicly available. Prosecutors indicated in court filings Sunday night that they had not obtained the Ojeda-Ross until five years after they began their Upper Big Branch investigation and “months after the original indictment was returned in this case.”

On Sunday afternoon, Blankenship’s defense team filed its motion asking Berger not to allow prosecutors to mention Ross during their opening statement, and indicated they plan to object to his testimony when Ross takes the stand.

Taylor, Blankenship’s lead defense lawyer, said in that motion that most of the Ross memo was based on information he was told by others and was therefore “hearsay” that could not be used against Blankenship.

“Indeed, a substantial component of Mr. Ross’s testimony is based on what he says he heard from unidentified individuals, including supposed quotes from them,” the defense motion said. “Such vague testimony is objectionable as hearsay and as irrelevant and additionally has the effect of denying Mr. Blankenship his confrontation rights under the Sixth Amendment.

“The court will rule on these objections at the time of Mr. Ross’s testimony, but if the government is permitted to discuss the matter in opening with no opportunity for the court to review the admissibility of objectionable portions of it, there exists real potential for irreparable prejudice,” the defense motion said.

Prosecutors responded that they didn’t plan to introduce the memo to prove the statements made in it, but simply to show “notice, willfulness, motive, materiality, state of mind, and the nature of the relationship” between Blankenship’s Massey and MSHA.

“The memorandum itself, the way in which it was generated and the way with which it was dealt also goes to the overall effort by defendant to obstruct enforcement of the mine safety laws,” prosecutors said.

The memo says that Ross believed that MSHA was “biased against Massey,” but that this bias “is largely based on Massey’s attitude over the years.”

“Massey has a worse track record than many other companies,” says a section of the memo that includes answers to Ross from questions posed by Massey executives. “The inspectors continue to find repeat violations; Massey never improves. This leads the inspectors to conclude that Massey just doesn’t care.

“The attitude at many Massey operations is, ‘if you can get the footage, we can pay the fines.’ ”

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

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