In a rare prosecution of a mining executive for safety violations, former Massey Energy chief executive Don Blankenship was convicted by a federal jury on one of the three counts brought against him in relation to the 2010 Upper Big Branch Mine collapse in West Virginia that killed 29 people.
Blankenship’s attorney William Taylor said he will appeal the verdict — which could come with up to a year in prison — on the grounds that the indictment failed to produce adequate evidence of a conspiracy. Nevertheless, he viewed the ruling as more positive than not.
“You have to understand, this is an acquittal,” Taylor said. “Given where we started, with the high level of community prejudice, the result, while we’d like to have had an acquittal across the board, is much better than we expected.”
Another former Massey Energy executive, David Hughart, was sentenced to 42 months in jail in 2013 for his role in the collapse. Massey Energy’s parent company Alpha Natural Resources has already paid $209 million to families of victims of the disaster, which came after years of fines paid, it seemed, as if they were simply a cost of doing business. (Alpha Natural filed for chapter 11 bankruptcy in August.)
Although it was not everything prosecutors were hoping for, the conviction is more than what government lawyers have achieved in other cases involving mining fatalities. Few chief executives have been hit with criminal charges for accidents in their facilities. Many — such as another West Virginia coal magnate, Jim Justice — have even avoided paying avoided paying much in fines for hundreds of safety violations uncovered by inspectors.
“The fact is that we’ve been mining in this country since 1880, and this is the first time that this has happened,” said former federal mine safety chief Davitt McAteer, who conducted the investigation into the Massey Energy mine collapse. “So I think the consequences will send ripple effects through the industry, and not just mining.” Oil and gas executives will have to take notice as well, he says.
So what took so long? McAteer said that the declining influence of the coal industry made it easier for prosecutors to go after executives. “If you had asked me the question ‘Could this have happened 15 years ago?’ The answer is no,” McAteer said. “You wouldn’t have had the willingness of the U.S. attorney to accept that coal industry persons could be responsible. When coal was king, this could not have happened.”
The public visibility of the Upper Big Branch Mine disaster might also have given prosecutors the will to pursue Blankenship with everything they had. West Virginia University history professor Paul Rakes, a former coal miner, said the television coverage of the 1968 Farmington mine explosion created enough public pressure to pass the first landmark mine safety legislation in 1969.
“Up until that time period, coal mine disasters were somewhat regional,” Rakes said. With TV, “folks said ‘Whoa, this has gone too far.’ ” The same is true of the Internet age. “A public voice comes into play that’s going to force government officials to react,” Rakes said.
Not everyone agrees, however, that the Blankenship verdict will have much of an effect.
Blankenship was unusual among energy industry chief executives in the degree of involvement he had in the day-to-day operations at Upper Big Branch, which generated $2.3 billion in revenue in 2009. Former mine managers testified that he micromanaged every decision, demanding ever-greater output at the expense of safety.
Tony Oppegard, a Kentucky lawyer who has represented many coal miners, said that is exactly why other executives will still be nearly impossible to prosecute. “Blankenship was such an atypical mine operator. That’s why the government was able to bring changes against him in the first place,” Oppegard said. “Most CEOs are insulated from liability, in corporate offices in Pittsburgh and New York, and they’re not involved in the day-to-day operations of the mines.”
Oppegard said he is disappointed in the failure of politicians to enact more protections for miners in the wake of the disaster, as they did following catastrophic mining accidents in 1968 and 1976. The Mine Safety and Health Administration has updated some regulations to place greater emphasis on more egregious rule violations, but Oppegard says legislation is still needed to give mine inspectors subpoena power, for example.
“All mining safety legislation is written in the blood of miners,” Oppegard said. “When you have a major accident like Upper Big Branch, that’s the time when you think something should be done. Those miners died in vain.”