Ex-Massey CEO Faces Criminal Trial for Fatal Mine Explosion: A First in Coal Country

By Claire Zillman, Fortune

01 October 15

Not once has an American coal mine owner been charged for a worker death. Until now.

n America’s long, dangerous history of mining, not once has a coal mine owner been charged criminally for a worker’s death. Coal miner fatalities, in some ways, have been considered a business expense—tragic, but an unavoidable cost in an industry that harvests the mineral from stubborn earth.

All of that changed with the indictment of Donald Blankenship. The former CEO of Massey Energy will stand trial on Thursday at a federal court in Charleston, W.Va. He faces up to 31 years in prison for allegedly conspiring to violate safety laws and lying to regulators about safety practices at the Upper Big Branch mine in Montcoal, W.Va., where a 2010 explosion killed 29 workers—the nation’s deadliest mining accident in 40 years.

Blankenship is facing criminal charges when other mining executives have not—in large part—because federal prosecutors say he was intimately involved in Upper Big Branch’s output to an extraordinary degree. He demanded reports every half hour on its production—they were sent to his home by fax on nights and weekends.

“One important factor is there’s a long paper trail indicating Blankenship’s deep involvement in minute decision-making in individual mines in the Massey empire,” says Patrick McGinley, a law professor at West Virginia University who worked on an independent investigation of the 2010 accident. The level of detail that Blankenship demanded from his subordinates isn’t something you find from a chairman of the board or CEO of many major corporations—coal or otherwise, McGinley says.

Because of Blankenship’s extensive knowledge of the day-to-day operations of Upper Big Branch, federal prosecutors have sought to hold him personally responsible for the 835 violations of federal mine safety standards they found at the mine from January 2008 through the time of the fatal explosion.

On April 5, 2010, methane gas infiltrated the Upper Big Branch mine 1,200 feet underground. When a longwall shearer—or cutting machine—penetrated the mine’s roof, it served as a fuse, lighting airborne coal dust that served as fuel and triggering successive blasts that tore through miles of the mine, asphyxiating some miners and pummeling others against the cavern’s walls and roof.

An investigation by the Mine Safety and Health Administration in November 2011 reached a conclusion similar to those of two other inquiries—that the 29 miners perished because Massey disregarded hazards that resulted from “a series of basic safety violations at [Upper Big Branch]” that were “entirely preventable.”

The indictment of Blankenship that a federal grand jury handed down in November 2014 characterizes him as a money-hungry executive who micromanaged Upper Big Branch to grow profits, even if it meant disregarding safety measures.

“Blankenship knew that [Upper Big Branch] was committing hundreds of safety law violations every year and that he had the ability to prevent most of the violations that [Upper Big Branch] was committing,” the indictment says. “Yet he fostered and participated in an understanding that perpetuated [Upper Big Branch’s] practice of routine safety violations, in order to produce more coal, avoid the costs of following safety laws, and make money.”

Under Blankenship’s leadership, there was a scheme at Upper Big Branch to warn underground workers when federal mine safety inspectors were on their way to examine underground areas of the mine. “[I]t was standard practice for a guard to radio the Upper Big Branch mine office … to warn employees in the mine that the inspectors were on their way,” according to the indictment. Then underground supervisors would “direct miners to quickly cover up violations of mandatory federal mine safety standards that the mine routinely committed.”

The indictment points to instances in which Blankenship allegedly exhibited disregard for workers’ safety. In November 2009, a section of the mine flooded and a federal mine safety inspector issued a shutdown order out of fear that miners could drown as they walked through the four feet of murky water. After the section had been idle for some time because the flooding prevented safety examinations, Blankenship ordered production to start again. When an executive resisted, Blankenship chastised him for “letting [the Mine Safety and Health Administration] run his mines.”

Blankenship, who’s credited with transforming Massey into an industry giant, stepped down as CEO with a $12 million retirement package in December 2010 just before Alpha Natural Resources’ $7.1 billion acquisition of the company. He has denied wrongdoing and maintains that an inexplicable flood of natural gas caused the deadly blast. His lawyer, William Taylor III, declined to comment.

Alpha Natural Resources paid $209 million in criminal penalties related to the explosion to settle with the Department of Justice in 2011, and two of Blankenship’s subordinates have already pled guilty to criminal charges. His lawyer, William Taylor III, declined to comment.

There’s a sense of anticipation of Blankenship’s trial in West Virginia, McGinley says. But the jury’s verdict is almost secondary to the fact that he is being prosecuted in the first place.

The indictment has helped chip away at a longstanding culture that doesn’t hold mining companies responsible for workers deaths or injuries, McGinley says. The prosecution, along with more vigorous, surprise safety examinations of mines, “is a deterrence to future conduct—not just with regard to the person who’s been indicted but it’s sent a message to similarly situated corporate managers that flouting the law can have consequences even when historically it never has,” he says. “Whether that’s a lasting message, that has yet to be determined.”