As the criminal trial of former Massey Energy CEO Don Blankenship continues, federal prosecutors have been trying to refocus the attention of jurors onto the large number of safety violations cited at Massey's Upper Big Branch Mine and on the seriousness of those violations.
U.S. Attorney Booth Goodwin's team also is seeking to show jurors that Massey as a company had a worse safety record than other major U.S. coal producers.
When they started their case in early October, prosecutors presented testimony from a parade of former Upper Big Branch coal miners who recounted for jurors their personal experiences with poor ventilation, lack of proper explosion prevention and other safety problems at the Raleigh County mine. The prosecution also had a federal Mine Safety and Health Administration official testify about violation data for Upper Big Branch.
But late last week - after a marathon cross-examination of government witness Chris Blanchard helped the defense score a variety of points - Assistant U.S. Attorney Steve Ruby circled back during his re-direct examination, questioning Blanchard about Massey's safety record, the number of violations at Upper Big Branch and the seriousness of a long list of those violations.
For example, Ruby had Blanchard testify about charts that showed Upper Big Branch recorded 466 violations in 2009, was cited for 120 violations during the first few months of 2010, and received far more federal orders for "unwarrantable failure" to comply with safety regulations than other similar-sized underground mines nationwide.
Ruby tried to emphasize to jurors that the issue at Upper Big Branch wasn't that some safety violations were "inevitable," as defense lawyers have argued, or that Upper Big Branch was improving, but just not quite able to eliminate all violations.
"No, sir, we weren't - we were not close to zero," Blanchard conceded during re-direct testimony last Thursday.
Ruby asked Blanchard, "Does your belief that a mine couldn't get to zero violations mean that it was fine to have 466 violations in a year?"
Blanchard answered, "No, sir."
On Monday, during a one-day break in testimony, defense lawyers for Blankenship filed a new motion seeking to have U.S. District Judge Irene Berger throw out one of the charts that Ruby used during his re-direct testimony of Blanchard. That chart, "Government's Exhibit 83," showed a comparison of Massey Energy's company-wide safety violations in various years to the violations received by other major coal producers.
Questioned about that chart, Blanchard explained that in 2007, Massey had received about 7,500 violations from MSHA while producing 40 million tons of coal. During the same period, CONSOL Energy produced more coal - 63 million tons - but received fewer violations, about 5,000, according to Blanchard's testimony.
Lead defense lawyer Bill Taylor objected to the use of that exhibit in court, and Blankenship's legal team followed up with Monday's written motion, which argued that comparisons of Massey's corporate-wide record to other coal producers are not relevant to the case because the indictment against Blankenship focuses on events at Upper Big Branch.
"The total number of citations and orders issued to all Massey mines and facilities regulated by MSHA and how they compare to the number of citations and orders issued to other companies is not relevant to any count of the indictment," the defense lawyers said. Berger has not yet ruled on that written motion.
During later re-direct last Friday, Ruby walked Blanchard through roughly four dozen violations issued at Upper Big Branch, many of them for serious ventilation problems or for inadequate "rock-dusting," the practice of spreading crushed limestone throughout the mine to prevent explosions like the one that killed 29 miners at Upper Big Branch in April 2010.
While questioning Blanchard about one violation that alleged an accumulation of combustible materials, including spilled coal and "float coal dust," Ruby had Blanchard explain to jurors how float coal dust can propagate an underground coal-mine explosion.
"It means to allow an explosion to continue to be fueled and to grow," Blanchard said. "In the event of an explosion, the force of the explosion will travel faster than the flame front of the explosion. And that force can lift dust into the air which then can allow the explosion to continue ... if that dust provides additional fuel for the explosion, sir."
Ruby also questioned Blanchard about a specific citation that alleged Upper Big Branch violated its MSHA-approved roof control plan by mining tunnels that were too wide.
"The wider the entry is, sir, the, the bigger a span has to be supported by the roof bolts," Blanchard explained. "An entry that is too wide could be less stable roof-wise than a narrower entry. You could have a roof fall ... or an injury caused by those."
Blanchard testified that this particular roof control violation was listed by MSHA as being "reasonably likely" to cause an injury that would be "fatal."
"A large enough piece of rock falling on someone, sir, in the right way or in any way could result in a fatal injury," Blanchard said.
Blanchard testified about another violation - several, in fact - that cited Upper Big Branch for not complying with rules requiring "lifelines," or cables that will help miners evacuate from underground mines in the event of a fire that fills tunnels with smoke and reduces visibility.
"If a section of the lifeline is missing, it is possible that a miner would not be able to find their way out," Blanchard said.
Ruby closed his re-direct questioning by revisiting a citation that defense lawyers had used in a series of questions aimed at minimizing the importance of some safety violations issued to the Upper Big Branch Mine. The citation alleged that a general laborer at the mine was not wearing his required identification tag on his belt.
Ruby asked Blanchard, "What's the purpose of having an ID tag attached to a miner's belt?"
Blanchard said, "To be able to identify that miner should you need to."
Ruby asked, "And did you believe that requirement, Mr. Blanchard, was one that was silly or trivial?"
"No, sir," Blanchard answered.
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.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.