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Blankenship defense takes aim at government regulations

Despite several rulings that appeared to limit such a strategy, lawyers for Don Blankenship are mounting a defense that is already rich with the former Massey Energy CEO’s frequent criticism of government efforts to regulate the coal-mining industry and with Massey’s battles with federal mine-safety regulators.

Jurors in the landmark trial have heard testimony and viewed documents that referenced an “unreal” pace of violations and “new interpretations” of old laws by the U.S. Mine Safety and Health Administration after President Barack Obama took office in early 2009, a period when the Upper Big Branch Mine — the focus of the case against Blankenship — was struggling with growing safety problems.

And late last week, jurors heard several lengthy discussions about complaints from Massey officials about the efforts of MSHA officials to enforce a new mine ventilation rule that was put in place as a result of the congressional response to a series of major fatal mining explosions and fires in 2006, including one that killed two miners at Massey’s Aracoma Alma No. 1 Mine in Logan County.

Blankenship’s defense team, with lawyers from the Washington, D.C.-firm Zuckerman Spaeder and Spilman, Thomas & Battle’s offices in Morgantown and Charleston, telegraphed this approach many months ago, when they argued in pretrial motions that the case was a political attack on Blankenship, prompted at least in part by his outspoken criticism of the Democratic elected officials. U.S. District Judge Irene Berger denied motions to dismiss on those grounds.

Lead defense lawyer Bill Taylor, though, hinted strongly in his opening statement Oct. 7 that his team would continue to push a defense that included subtle — and sometimes not-so-subtle — jabs at government mining rules and federal regulatory agencies.

Taylor told jurors, for example, that the amount of time MSHA inspectors spent at Upper Big Branch doubled between 2007 and 2009 and that coal operators struggle to comply with a system where “what one inspector considers to be a dangerous accumulation [of coal dust], another one may not.”

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Several times, Taylor promised jurors they would hear about the Upper Big Branch Mine’s disputes with MSHA over the mine’s ventilation plan. He said jurors would learn that one reason the mine was cited frequently in 2009 was, “MSHA decided to force the mine to adopt a plan for ventilation that was completely new and almost impossible to comply with.”

“I think you will conclude that I’m not exaggerating about that,” Taylor said at one point. Later, he added that jurors would eventually decide that one MSHA official’s “description of picking a fight with Massey over longwall ventilation is an understatement.”

Blankenship, 65, faces a statutory maximum of 30 years in prison if convicted of all three felony counts against him. The former Massey CEO is charged with conspiring to violate mine safety standards and to thwart MSHA inspections and enforcement. He also is charged with lying to securities regulators and committing stock fraud by orchestrating public statements that defended Massey’s safety practices in an effort to stop plummeting stock prices following the April 2010 explosion at Upper Big Branch.

Berger gave jurors and lawyers in the case the day off today. The 18th day of testimony will begin at 9 a.m. Tuesday at the Robert C. Byrd United States Courthouse in Charleston.

During pretrial motions, U.S. Attorney Booth Goodwin’s team had sought to block a defense that argued that “federal mine safety standards were incorrect or misguided.” They said that it is “well settled” that “disagreement with the law, no matter how passionately advocated, is not” a defense against criminal charges.

“Defendant has publicly expressed his disagreement with federal mine safety regulations,” prosecutors said. “Any agreement or evidence that the mandatory mine health or safety standards were wrong, misguided or imprudent is inappropriate and should be precluded.”

Lawyers for Blankenship responded that if the government sought to explain to jurors “the purpose of mine safety standards or their role in making mines safer,” the defense would respond with evidence “to show that many mine safety standards do not correlate directly to safety.”

During a hearing on the eve of trial, Berger announced that she was granting the government’s motion to prohibit “claims that federal mine safety standards were incorrect, misguided, or imprudent.”

“I think we all know that that type of evidence is obviously inadmissible,” Berger said.

Still, jurors have heard testimony from the defense that has aimed to minimize the significance of some mine safety violations — such as a citation for having a grill on the Upper Big Branch parking lot — and evidence from the government about how mine safety standards are meant to prevent mine fires, explosion and deadly black lung disease.

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Jurors have also heard Taylor note Massey’s belief that MSHA was increasing the rate of citations “across the board in the second and third quarter of 2009.”

The defense has introduced, through the testimony of former Performance Coal Co. President Chris Blanchard, a memo in which then-Massey Chief Operating Officer Chris Adkins complained in April 2009 that MSHA was writing “violations at a pace that is unreal,” and that in January 2010 MSHA was implementing “new interpretations of old laws.”

On the second day of testimony in the case, prosecutors filed a motion to try to curb the defense strategy, especially as it regards Massey complaints about the way MSHA was enforcing rules regarding the use of “belt air” — in which fresh air is pumped into a mine through the same tunnel that contains a coal-conveyor belt.

Berger granted the motion. The judge wrote that “evidence and argument that Massey disagreed with MSHA’s enforcement of the belt air regulations at Upper Big Branch is inadmissible.

“The same is true of evidence and argument that MSHA ‘forced’ the Upper Big Branch Mine to adopt a ventilation plan that did not use belt air,” the judge wrote. “Such evidence clearly falls within the Court’s prior ruling on ‘claims that federal mine safety regulations were incorrect, misguided or imprudent,’ and must be excluded.”

Still, parts of the Massey disagreement with MSHA over belt air was hashed out during Taylor’s cross examination last week of Blanchard, whose Performance Coal subsidiary operated Upper Big Branch.

Essentially, defense lawyers want to convince jurors that MSHA was trying to force Massey to stop using belt air to ventilation the Upper Big Branch Mine. They argue that belt air was a better way to ventilate a longwall mine, and that MSHA “imposed” a new ventilation scheme that Massey found hard to comply with and that led to violations that are now being used against Blankenship in the criminal case.

“We were forcing the air to go a more difficult route,” Blanchard testified, when asked about the ventilation method MSHA preferred. “There were only — there was only a certain amount of airways in this other route that could accept a certain amount of air. By rerouting the belt air and taking up some of the capacity that otherwise would have been return air from the continuous miner sections, it decreased the amount of intake air available to the continuous miner sections as well.”

Adding to the intrigue about this line of defense is that Taylor used Blanchard’s cross-examination to enter into evidence a memo in which then-Massey ventilation expert Bill Ross — now a government witness expected to testify against Blankenship — talks about the difficulties of this situation for Massey.

Further complicating the whole situation is that the defense’s argument about belt air has been a part of Blankenship’s personal explanation for the cause of the Upper Big Branch explosion, a topic that both sides say they don’t want the trial to be about, and that Berger has said she won’t allow to be debated for the jury. Taylor, on cross-examination, though, managed to squeeze in a question in reference to “inundations of natural gas” at Upper Big Branch — another key part of Blankenship’s theory of the disaster — though Blanchard said that he didn’t recall that discussion in the specific meetings Taylor was inquiring about.

So far, prosecutors have been limited in their ability to respond to the evidence that Taylor and the defense team have brought before the jury about the belt air issue. While the industry supports belt air, some mine safety advocates have long opposed the practice, arguing if mines use their conveyor belt tunnels for the intake of fresh air, those tunnels can carry flames and deadly gases directly to where miners are working if a fire breaks out.

On Friday, when Assistant U.S. Attorney Steve Ruby did his re-direct examination of Blanchard, he managed to get in a few questions that forced Blanchard to tell jurors that the federal government’s rules about under what conditions mine operators can use belt air had changed in 2008. That 2008 rule change was written by MSHA based on recommendations from an expert panel ordered by Congress following the deaths of miners Don Bragg and Ellery Hatfield at Massey’s Aracoma Mine in a belt fire on Jan. 19, 2006.

Ruby got Blanchard to testify that in 2009, Massey briefly tried to use a non-belt air ventilation plan at Upper Big Branch, but when it didn’t work properly, MSHA approved a plan that allowed the continued use of belt air at UBB.

But when Ruby tried to ask Blanchard about the Aracoma Mine, Taylor objected and the lawyers held a private conference with Berger at the judge’s bench.

After the bench conference, Ruby asked Blanchard, “And without referring to the specific type of incident, Mr. Blanchard, are you familiar with a safety incident that occurred there in 2006?” Blanchard said that he was, and then testified that new rules passed after that “safety incident” required mine operators to provide MSHA with a more detailed justification when they wanted to use belt air.

Later during the re-direct, Taylor objected when Ruby tried to ask Blanchard if Massey had been sued following the “safety incident” at Aracoma. After another private conference with the judge, Ruby then asked, “Mr. Blanchard, are you aware of whether Massey was sued after the deaths at Aracoma?” Taylor objected to Ruby’s use of the word “deaths,” saying that Berger had instructed Ruby to use the word “incident.”

The judge instructed the jury to disregard Ruby’s question.

Check the Gazette-Mail’s Coal Tattoo blog for frequent updates on testimony in the Blankenship case, and visit the Blankenship trial page for a timeline, exhibits and other features.

This article was written by Ken Ward Jr. from The Charleston Gazette, W.Va. and was legally licensed through the NewsCred publisher network.