Monday, January 23, 2017

Coal Tattoo: What we can learn from the Blankenship appeal [feedly]

What we can learn from the Blankenship appeal

This morning, when I looked a the calendar to see what the day ahead would be like, I saw the date: Jan. 19. I was reminded of a Jan. 19 more than a decade ago, when the day took a terrible turn and two men working at one of Don Blankenship's coal mines ended up dead.  I'm sure it's another hard day for the families of Don Bragg and Elvis Hatfield. The calendar can be like that for mining families. The winter months especially are way too full of dates that mark one awful disaster or another.

Then shortly after I got to the newsroom, an email alert showed up from the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, noting a new document filed in the Blankenship appeal:

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cr-00244-1.

I clicked, called up the opinion, and hurried to scroll down to the key passage:

Defendant Donald Blankenship ("Defendant"), former chairman and chief executive officer of Massey Energy Company ("Massey"), makes four arguments related to his conviction for conspiring to violate federal mine safety laws and regulations. After careful review, we conclude the district court committed no reversible error. Accordingly, we affirm.

We've got a lot of changes coming our way in this country. Come tomorrow, Donald Trump will be sworn in as our President. Already in West Virginia, we've seen what is likely a similarly significant change. On Monday, Jim Justice stood at the Capitol and took the oath as our new governor.

As a candidate, President-elect Trump certainly talked a lot about doing away with government regulations, especially those he says were killing the coal industry. Governor Justice has promised to fight federal environmental regulations that get in the way of his industry, and says under his leadership. West Virginia will mine more coal than ever before.

There's obviously a lot of evidence that suggests the coal revival that's being promised is very unlikely to happen. But today's events, and the history of what happened today back in 2006, should make us think about this from another perspective.

Remember that there was a criminal prosecution after the Aracoma fire, but it stopped way short of really going after anyone higher up the corporate ladder, as most probes after mine disasters have. And that's despite lots of fascinating evidence that came out during the civil case so diligently pursued by the lawyers for the Bragg and Hatfield families.

Remember that in the Blankenship appeal, three coal associations (including West Virginia's) filed a "friend of the court brief" arguing that it was wrong for U.S. Attorney Booth Goodwin, Judge Irene Berger, and the Blankenship trial jury to essentially criminalize decisions that mine operators make about allocating their resources:

Operating a coal mine is a difficult venture that presents tough decisions for its managers, who are required to navigate a regulatory minefield in order to operate a successful company … Those decisions, especially with respect to production, safety, and regulatory compliance, may at times be imperfect, prone to second-guessing, and, despite the best intentions, even incorrect … However, those decisions should not lead to criminal liability unless it is proven beyond a reasonable doubt that the individual possessed the "evil purpose" necessary to establish that the conduct was illegal, not just general knowledge of the effects of broad regulatory involvement.

Well, the judges at the 4th Circuit weren't buying any of that. Here are some examples of what they had to say about the industry's position in defense of Blankenship's appeal:

—  First, the legislative history of the Mine Safety Act contradicts Defendant's and amici's argument that Congress did not intend to punish mine operators for the type of budgeting and business decisions the government challenged here. In particular, Congress repeatedly stated that the Mine Safety Act's enforcement provisions were designed to deter mine operators from choosing to prioritize production over safety compliance on grounds that it was "cheaper to pay the penalties than to strive for a violation-free mine." To that end, Congress said that operators should not balance the financial returns to increasing output against the costs of safety compliance.

— Congress imposes penalties on corporate officers—like Defendant—alongside enterprise penalties because it is often impossible to impose monetary penalties on corporations large enough to deter corporate misconduct. And when the returns to violating a law exceed a potential corporate fine, discounted by the likelihood of the government imposing the fine, corporate officers who do not face personal liability will treat "criminal penalties as a 'license fee for the conduct of an illegitimate business'"—as the government's evidence showed Defendant did here.

— 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.

— … Regarding amici's contention that the "unavoidability" and "inexorability" of mine safety violations precludes use of such violations to establish criminal intent …  even though "inadvertent" violations may not amount to willfulness, continuing violations in "the face of repeated warnings" allows a jury to infer criminal intent.

—  Defendant argues that defining willfully in terms of reckless disregard impermissibly allowed the jury to convict him even if it concluded that Defendant desired "to eliminate and reduce the [safety] hazards and violations" at the Upper Big Branch mine. But just as the law holds criminally liable an individual who drives a car with brakes he knows are inoperable, even if he does not intend to harm anyone, so too Section 820(d) holds criminally liable a mine operator who fails to take actions necessary to remedy safety violations in the face of repeated warnings of such violations, regardless of whether the operator subjectively wanted the violations to continue.

We're going to be hearing a lot over the next four years about regulations, and how they destroy jobs and put miners out of work, and how we really need to stop all that nonsense from agencies like the U.S. Environmental Protection Agency and the federal Mine Safety and Health Administration. When that stuff comes up, we would do well to look at the calendar, and to remember that we have a long history of death and disaster built up in those regulations.

Former Assistant U.S. Attorney Steve Ruby said it better than I ever could, in the legal brief he filed before Blankenship's sentencing hearing:

May 1, 1900, Scofield, Utah: A coal dust explosion at the Winter Quarters mine kills 200
coal miners.

December 6, 1907, Monongah, Marion County, West Virginia: A coal dust and gas explosion at Fairmont Coal's No. 6 and 8 mines kills 361 coal miners.

December 9, 1911, near Briceville, Tennessee: An explosion likely caused by gas and coal dust at the Cross Mountain mine kills 89 coal miners.

March 2, 1915, Layland, Fayette County, West Virginia: A coal dust explosion at the New River and Pocahontas No. 3 mine kills 112 coal miners.

March 8, 1924, near Castle Gate, Utah: A gas and coal dust explosion at the Utah Fuel Company Castle Gate Mine No. 2 kills 171 coal miners.

April 28, 1924, Wheeling, West Virginia: A gas and coal dust explosion at the Benwood mine kills 119 coal miners.

May 12, 1942, Osage, Monongalia County, West Virginia: A methane and coal dust explosion at the Christopher No. 3 mine kills 56 coal miners.

February 5, 1957, Bishop, on the Virginia-West Virginia line: A gas and coal dust explosion at the Bishop mine kills 37 coal miners.

November 20, 1968, Farmington, West Virginia: An explosion at the Consol No. 9 mine kills 78 coal miners. The ensuing investigation determines that the mine suffered from inadequate ventilation and inadequate control of coal dust.

March 9 and 11, 1976, near Ovenfork, Kentucky: Two gas and coal dust explosions at the Scotia mine kill a total of 26 coal miners. December 7, 1981, Kite, Kentucky: A coal dust explosion at the Adkins Coal No. 11 mine kills eight coal miners.

September 13, 1989, Sullivan, Kentucky: A methane explosion at the Pyro No. 9 Slope mine kills ten coal miners. The ensuing investigation determines that an inadequate preshift safety examination contributed to the explosion.

December 7, 1992, near Norton, Virginia: A methane and coal dust explosion at the Southmountain Coal No. 3 mine kills eight coal miners. The ensuing investigation determines that inadequate preshift and weekly safety examinations contributed to the explosion.

January 19, 2006, Melville, Logan County, West Virginia: A fire at Massey Energy's Aracoma Alma #1 mine kills two coal miners. The ensuing investigation determines that violations of the laws on mine ventilation and safety examinations contributed to the deaths. Massey's Aracoma subsidiary later pleads guilty to willful violations of mine safety and health standards resulting in death. Defendant, at the time, was Massey's chief executive officer and chairman of the board.

These catastrophes, terrible as they are, represent only a small fraction of the toll exacted by mining deaths. Since 1900, the earliest year that records are readily available, more than 100,000 workers have been killed in America's coal mines. The great majority of this loss of life
could have been prevented by following well-known principles of mine safety.

This history matters. It is a stark reminder that the laws on mine safety are not just words on paper. They are the bitter fruit of decades of tragedy. We have known for a very long time what makes coal mines explode. We have known for a very long time how to prevent it.

And, sadly, we have known for a very long time that some mine operators will ignore these hardlearned lessons until the law compels them to take notice. The mine safety laws, it is said with good reason, are written in coal miners' blood.

 -- via my feedly newsfeed

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