Former Massey Energy CEO Don Blankenship convicted of conspiracy

Dec 30 - McClatchy-Tribune Content Agency, LLC - Wendy Holdren The Register-Herald, Beckley, W.Va.

After the fatal April 5, 2010, explosion at the Upper Big Branch mine in Montcoal, many family members who lost loved ones said they never thought they would see day the coal company's CEO was brought to trial.

But 65-year-old Don Blankenship's trial began Oct. 1, and just over two months later, a jury found him guilty of conspiring to willfully violate mine safety standards.

His conviction was only a misdemeanor; a jury found him not guilty of all felony counts of the indictment, including conspiracy to defraud the Mine Safety and Health Administration and lying to investors and federal securities regulators after the explosion.

The former CEO, who would have faced up to 30 years in prison had he been convicted of all counts, faces up to one year in prison and a $250,000 fine when he is sentenced April 6 at 10 a.m. in Charleston.

Several of the surviving family members sat through every day of the two-month trial, listening to testimony from coal miners, foremen, MSHA inspectors, Massey officials and even recorded phone calls and memos from Blankenship himself.

Miner after miner testified about the unsafe conditions in which they were forced to work; they said if they voiced their concerns, their jobs were threatened and they were told they could easily be replaced.

They talked about inadequate amounts of rock dust (which is spread to help prevent explosions), poor air quality, areas with high water and the receipt of advance warning from dispatchers when inspectors arrived on site.

Many witnesses testified that MSHA inspectors were never able to see the mine in its true working condition; the workers temporarily covered up the safety flaws during inspections, then returned to unsafe practices to crank out as much coal as possible.

Prosecutors argued Blankenship sent his orders down the chain -- from group presidents to mine superintendents to foremen to the miners themselves -- demanding higher production and more revenue at a time when coal prices were at peak.

The coal mined at UBB, metallurgical coal, is used in the steel-making process. Chris Blanchard, the former president of Performance Coal, the resource group that included UBB, testified that between 2008 and 2011, the price of metallurgical coal rose from $80 per ton to more than $200 per ton.

On a full day of production at UBB, the mine could generate $600,000.

Prosecutors introduced into evidence several memos from Blankenship demanding all mines "run coal" above all else. Jurors also saw handwritten notes from the former CEO declining several safety-related purchases.

A former MSHA official who went to work for Massey after he retired, Bill Ross, provided what at least one juror considered the most damning testimony for Blankenship.

Ross was brought on to help the company get a handle on its violations, and to help improve relations with MSHA. His recommendations were sent, confidentially, to Blankenship and a few other Massey officials in what became known as "the Ross memo."

The eight-page memo, issued June 25, 2009, highlighted a number of problems at Massey, including a lack of manpower, lack of training, the falsification of dust samples and the "Big Four" violations -- ventilation, roof control, electrical and clean up of rock dust and coal accumulations.

Ross said in the memo that the attitude at Massey was "if you can get the footage, we can pay the fines."

One miner told Ross, "We are like robots. Everything is laid out for us, but we aren't given the manpower to actually do it." And "we are told to run, run, run until we get caught; when we get caught, then we will fix it."

All throughout the trial, defense attorneys argued Blankenship was simply doing his job by trying to increase profits and lower expenditures, and that he was truly concerned about safety conditions at the mines.

The defense provided several memos of their own which showed the former CEO's orders to eliminate citations; prosecutors argued his concerns were not about the miners themselves, but about the hefty fines attached to the numerous citations.

Prosecutors called 27 witnesses to testify, but the defense called no witnesses of their own and Blankenship did not testify on his own behalf.

After deliberating over parts of 10 days, the jury returned a mixed verdict. As family members heard the verdict "guilty" on the first count, conspiring to willfully violate mine safety standards, they embraced and turned their heads to the sky in gratitude.

But as the judge read "not guilty" for the remaining counts, the charges that carried the most prison time, their expressions turned somber.

Outside the courthouse, they told media outlets that they were happy to hear Blankenship told, "You're guilty." But they were disappointed the jury didn't find him guilty of all counts.

For at least one family member, the close of the trial did not bring closure for the death of her brother. She does believe, however, it may come the day Blankenship is sentenced.

While several family members expressed their fears that the former CEO may never see a day behind bars, a Charleston defense attorney said he believes Blankenship will face prison time.

Blankenship's defense team announced its intent to file an appeal just minutes after the verdict was delivered. But appeals processes can be lengthy -- there's a possibility Blankenship could have already served his prison sentence by the time a decision is reached on his appeal.

Whether or not Blankenship will face time behind bars will be left to U.S. District Judge Irene C. Berger. He faces a fine of up to $250,000 in addition to the possible prison sentence, and prosecutors say Blankenship could also face tens of millions in monetary sanctions.

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