West Virginia Record

Sunday, March 29, 2020

Impact of Upper Big Branch felt throughout West Virginia

By W.J. Kennedy | Apr 21, 2016


CHARLESTON – A top underground mine safety attorney says he still wants answers as to what caused the 2010 Upper Big Branch Mine explosion that killed 29 miners.

Hank Moore, with the Pittsburgh office of Jackson Kelly PLLC, said he mistrusts the 2011 Mine Health and Safety Administration report that blamed the accident on safety violations.

“There are still a lot of unanswered questions but they were so intent on getting (former Massey Energy CEO Don) Blankenship that they lost sight of getting to the real reason behind the accident,” Moore said. “Now we’ll probably never know how to prevent this kind of accident in the future.”

In 2014, Blankenship financed a documentary before he was charged that cited an unexpected surge in natural gas as the cause of the explosion.

Legal and political experts say the Blankenship conviction in December on criminal conspiracy charges could result in tougher mine safety laws, new penalties for coal executives and reverse a 10-year political trend in West Virginia. But even without legislative or regulatory changes in Washington, the Blankenship prosecution could also open the door to more criminal charges for coal executives, who with thousands of deaths and injuries over the centuries in the industry, have never before been prosecuted criminally.

However, legal experts also caution not to apply the case too broadly.

West Virginia University law professor Patrick C. McGinley said it’s important to keep in mind Blankenship’s unusual management style, which had a bearing on the outcome of the trial.

“You have a CEO in Blankenship who was a very hands-on manager,” McGinley said. “He wanted production results every 20 minutes. Unlike other CEOs his fingerprints were directly on the operation.”

What’s more, Blankenship had no public support, certainly not from the miners but not from the operators either.

Robert Rupp, political science professor at West Virginia Wesleyan College, said Blankenship had a reputation for exploiting his workers and that the operators thought he gave the industry a “bad name.”

With the conviction, U.S. Senator Joe Manchin, a Democrat, said he asked the leaders of the Senate Committee on Health, Education, Labor and Pensions to move mine safety legislation he introduced in April 2015 with Pennsylvania Democrat Bob Casey. In the House, nearly identical legislation introduced in January 2015 awaits action in the Committee on Education and the Workforce.

The bills make it a felony to “willfully violate mine safety and health standards when doing so recklessly exposes a miner to significant risk of serious injury, illness of death.” The maximum sentence would be five years in prison and a $1 million fine.

Moore said the fact Blankenship was convicted of a misdemeanor – he was acquitted of more serious charges – likely would give the bills more support in the full House and Senate if they make it through committee. That’s even if Blankenship wins his appeal to the 4th Circuit Court of Appeals.

The Upper Big Branch accident, as well as coal mining, is impossible to separate from the character of West Virginia. A miner is on the state seal, which is on the state flag.

In the past 10 years, the state has gone from blue to nearly entirely red with the increase in the pressure from Washington to shut down the coal industry. Two years ago, Republicans captured strong majorities in the state Senate and House of Delegates for the first time in more than 80 years. They also hold one U.S. Senate seat and the Attorney General’s office.

Rupp said Democrats are desperate to hold on to the governor’s office as incumbent Democrat Earl Ray Tomblin is term limited. Republican candidate Bill Cole faces no opponent in the primary. On the Democratic side, Booth Goodwin, who prosecuted Blankenship, is running against former coal executive and billionaire Jim Justice. Rupp said Goodwin’s prosecution of Blankenship would help his chances, but only to a degree.

“It’s a half full glass,” Rupp said, “because he was acquitted on the more serious charges and convicted of only a misdemeanor.”

That wasn’t lost on Justice, a powerful candidate who can finance his own campaign and has Manchin’s support.

Last week, Justice was quoted in the Charleston Gazette-Mail saying, “we spent an ungodly amount of money within our state to probably keep Booth Goodwin in the limelight and end up with a misdemeanor charge.”

The final tragedy is that none of this helps the coal industry, which as Moore said “is a good industry in the process of being destroyed.”

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Organizations in this Story

West Virginia UniversityWest Virginia Wesleyan CollegeAlpha Natural ResourcesJackson Kelly PLLCMassey Energy CompanyU.S. Senator Joe Manchin