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Current Issue: Vol23, Nos18 & 19 | October 2016
  • Accidents:
    • One burned in electrical explosion at Revelation’s D-7 Osaka Mine (377)
    • One hurt in rib fall at Revelation Energy D-18 Mine (378)
    • Gramercy Aluminum Plant reports 3nd caustic burn incident in 6 weeks (379)
    • Miner sustains fracture in transportation incident at Chino Mines (379)
    • Falling rock fractures miner’s pelvis at Klondex Fire Creek (380)
    • GMS Mine Repair reports two broken legs in 8-day span (381)
  • BlackLung: Operators report 123 cases of black lung disease since January (381)
  • Discrimination:
    • CEO Robert Murray ordered to read prepared statement; mines fined $100,000 (384)
    • Judge fines contractor $35,000 where miner fired after asking for dust mask (385)
    • Commission ALJ dismisses discrimination complaints in Veris Gold bankruptcy case (387)
  • Fatalities:
    • MSHA cites unwarrantable failures in fatal rib fall at Huff Creek No.1 (390)
    • Mine operator cited in unloading fatality at Vista Sand (391)
    • Fine reduced to $7,000 in settlement where
      unwarrantable failure finding overturned (393)
  • Mine Refuges: Commission upholds S&S finding where refuge is 1,110 feet from section (395)
  • Part90: Company that purchased Alpha mine in bankruptcy must reinstate Part 90 miner (396)
  • Review Commission Orders and ALJ Decisions (398)
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Recent Posts

4th Circuit Upholds Blankenship’s Conviction

In shooting down an appeal by criminal defendant and ex-coal company executive Donald Blankenship, the U.S. Court of Appeals for the 4th Circuit ruled that there were no reversible errors committed by the U.S. District Court Judge Irene Berger and the jury that properly convicted him of criminally violating the Mine Act for violations leading up to the April 2010 explosion that killed 29 miners in Montcoal, W.Va.

In several instances throughout the 34-page decision, the court cited the Mine Act’s legislative history, and determined that reckless disregard of the Mine Act’s provisions can amount to criminal behavior such as in this case.

The court agreed that Blankenship was aware of the violations at the Upper Big Branch Mine, and received daily reports showing the numerous safety violations. The court said he received warnings from a senior Massey Official about the risks posed by the violations, but pressed for more production as the miners struggled to keep up with the mandatory mine safety regulations. Despite this, the court also noted that staff was cut “less than two months before the explosion, a decision that Blankenship would have had to approve given his close supervision of mine operations and staff.”

Blankenship, along with the Illinois, Ohio and Virginia Coal associations first argued to the court that the indictment against Blankenship was insufficient, and should have been dismissed because it did not cite specific mine safety regulations that he conspired to violate. Although the indictment did not cite specific regulations, it did include a 35-page background that identified violations of mine ventilation regulations, examination violations, roof and rib support violations, and recurring accumulations of explosive coal dust. In addition, “it tracked the statutory language verbatim.”

Blankenship also argued that his attorneys should have been able to recross-examine UBB Coal Group President Chris Blanchard, after Blanchard claimed that Blankenship said it was “cheaper to break the safety laws and pay the fines than to comply.” Blankenship said this statement amounted to “new evidence.” However, this issue was “effectively dealt with on cross-examination or cumulative of other evidence introduced at trial,” the 4th Circuit said. Blankenship’s cross examination of Blanchard lasted almost five days, and there was extensive opportunity during this time to examine Blanchard. There were also other witnesses that made similar statements, and also memoranda introduced telling Blanchard to reopen a section of the mine and “run coal,” despite the section lacking mandatory ventilation controls.

A large portion of the decision focused on what is meant by a “willful” violation, and “reckless,” and whether someone’s reckless conduct can lead to a criminal charge. “Reckless disregard” or “plain indifference toward” a known legal obligation can constitute “criminal willfulness” the court said.

“A single, or even a few, inadvertent errors… may not amount to “willful” failures… Yet at some point, when such errors continue or even increase in the face of repeated warnings given by enforcement officials, accompanied by explanations of the severity of the failures, one may infer as a matter of law that the [person] does not care about the legal requirements. At that point, the failures show the [person’s] plain indifference, and therefore becomes willful….Not caring about adherence to legal requirements amounts to criminal willfulness,” the court said. In this case, Blankenship was repeatedly informed of safety violations at Upper Big Branch, and nothwithstanding that knowledge, Blankenship chose to prioritize production and pay fines rather than to take steps necessary to prevent the violations from continuing.”

For purposes of the Mine Act’s criminal provisions, “willfullness encompasses “reckless disregard,” the court said, in citing previous 1969 Coal Act case law from the 6th Circuit in Consolidation Coal, 504 F.2d 1330(6th Cir. 1974).

The court also focused on the legislative history, and the problems of bringing “habitual and chronic violators of the law into compliance.” For purposes of the Mine Act’s criminal provisions, “a long history of repeated failures, warning, and explanations of the significance of the failures, combined with knowledge of the legal obligations, readily amounts to willfullness,” the court said.

Blankenship and the coal associations had argued that Congress could not have intended to hold mine operators criminally liable for making budgeting and business decisions about how to allocate resources between production and safety compliance.

The court disagreed noting the legislative history of the Mine Act contradicts this argument. “Congress repeatedly stated that the Mine Act’s enforcement provisions were designed to deter mine operators from choosing to prioritize production over safety compliance on the ground that it was cheaper to pay the penalties than strive for a violation-free mine…. To that end Congress said that operators should not balance the financial returns to increasing output against the cost of safety compliance.”

The court stressed that penalties should be imposed on corporate officers like Blankenship “because it is often impossible to impose monetary penalties on corporations large enough to deter misconduct… corporate officers who do not face personal liability will treat criminal penalties as a liscense fee for the conduct of an illegitimate business as the government’s evidence showed defendant did here….[A] mine operator cannot immunize himself from criminal liability under [The Mine Act] Sect. 820(d) by characterizing his mine’s repeated failure to comply with safety laws as a consequence of ‘tough decisions’ he had to make weighing ‘production, safety and regulatory compliance.'”

Blankenship also argued that violations inexorably result from mining production, and that it is essentially impossible to mine without a violation. But the court shot back with a strong statement: “Even though inadvertent violations may not amount to willfulness, continuing violations in the face of repeated warning allows a jury to infer criminal intent…. Just as the law holds criminally liable an individual who drives a car with brakes he knows are inoperable, even though he does not intend to harm anyone, so too Sect. 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.”

The third argument in the defense was that charging a CEO with criminal behavior, where “reckless disregard” amounts to “willfulness,” would lead to a result of operators being less likely to engage oversight over important aspects of safety and regulatory compliance.

This “should not deter mine operators,” the court said. “The Mine Safety Act declares that operators — like [Blankenship] have primary responsibility to prevent unsafe and unhealthful conditions and practices…. ‘Reckless disregard’ means the closing of the eyes to, or deliberate indifference toward the requirements of a mandatory safety standard, which standard [Blankenship] should have known and had reason to know at the time of the violation. Because mine operators have the primary responsibility for safety and regulatory compliance and because an operator acts with reckless disregard if he closes his eyes to safety compliance, or ‘should have known’ that an action or omission would lead to a safety violation, a mine operator cannot avoid liability under Section 820(d) by failing to engage in close oversight over safety and regulatory compliance.”

The bottom line for the court? Blankenship “failed to take actions he knew were necessary to comply with federal mine safety laws. He knew that his actions and omissions would lead to violations of mine safety laws and regulations.”

U.S. v. Donald L. Blankenship, 1/19/2017, CA 4 No. 164193

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