Blankenship prosecution begins reclaiming its witness during redirect

By Wendy Holdren - AP Exchange

CHARLESTON — After roughly four days of defense cross examination, the prosecution began Thursday afternoon reclaiming its witness, former Performance Coal President Chris Blanchard, who oversaw management of the Upper Big Branch mine, where an April 2010 explosion took the lives of 29 miners.

Assistant U.S. Attorney Steve Ruby began his redirect just before lunch by letting Blanchard know, “We have a lot to talk about.”

Ruby wasted no time diving into Blanchard’s grand jury testimony from last November, in which he testified under oath that there was an understanding at Massey Energy and UBB that it was cheaper to pay the fines from citations than it was to pay the money necessary to prevent violations.

“That was the implicit understanding,” was Blanchard’s testimony from last November.

He also said during his testimony that Don Blankenship, the company’s former CEO, “didn’t do anything to dissuade” the understanding about violations at UBB, that it was “the cost of doing business.”

Blankenship, 65, is charged with conspiring to violate mine safety regulations and lying to investors and securities regulators after the explosion.

During cross examination, Blanchard testified that he believed his boss did care about safety at the mine, and that Blankenship never specifically directed anyone to violate any safety laws. He also said he and Blankenship were not part of a conspiracy to impede the Mine Safety and Health Administration.

But Ruby asked Blanchard if he knew that a conspiracy didn’t have to come in the form of a formal agreement, but can be part of an unspoken understanding. He said it can be based on what people do as well as what they say. Blanchard said he did not know that.

“Do any of the answers you provided during cross examination change your testimony?”

“No,” Blanchard said.

Ruby also suggested that even though Blankenship may not have wanted violations at UBB, largely because they cost the company money, he still tolerated those violations because it led to more production, and more production led to a bigger payday.

Ruby said part of Blankenship’s pay was tied directly to the number of feet mined per shift, hence the pressure he placed on mine presidents.

Blanchard testified last November that if the mine had been better staffed and if production goals were lowered, the number of violations could have been greatly reduced. He agreed with that statement Thursday, as well as the fact that Blankenship had the power to make the changes that could have prevented those violations.

During cross examination, Blanchard testified that it is impossible for a mine to receive zero citations. Ruby highlighted Thursday that UBB received 466 citations in 2009, and was on pace to receive 480 violations in 2010.

“So just because you couldn’t get to zero, 466 citations were fine?”

“No,” Blanchard said.

Ruby again pointed out that Massey mines had the most violations of any company in the country in 2008, 2009 and 2010, receiving more than 10,000 citations in each year.

In 2008, Massey’s profit was $56 million. In 2009, the profit was $104 million.

“Was that enough?” Ruby asked.

Blanchard said he couldn’t answer the question, but agreed that profit numbers were no reason for a company to commit preventable violations of safety laws.

Testimony throughout the trial has shown that when UBB was placed on a Potential Pattern of Violation in early 2008 by MSHA, upper management at Massey hired additional workers and lowered production demands until violations could be cleaned up. Had the mine not cleaned up the violations, it could have been shut down.

Ruby asked Blanchard why the company waited until UBB’s profitability was threatened to take additional safety measures; Blanchard hesitated, but ultimately agreed that it was because of profits.

During cross examination, the defense introduced into evidence a number of citations and subsequent reprimands, as well as handwritten notes from Blankenship and former Massey COO Chris Adkins in response to the safety issues.

Lead defense attorney Bill Taylor effectively blamed the coal miners for some of the violations, as he suggested it is sometimes difficult to get miners to do what you tell them, and sometimes they think they know better than their bosses.

Ruby countered those claims Thursday with a number of UBB citations, all of which were considered serious and significant, none of which had notes from Adkins or Blankenship or any subsequent disciplinary actions.

He asked Blanchard after he presented each citation, “Do you think this violation ought to be blamed on a coal miner?”

Blanchard said no, but perhaps on a supervisor.

Ruby also pointed out that no additional miners were hired after these serious and significant violations, nor were production demands lowered for the mine to get a handle on its violations.

Ruby called into question Blanchard’s testimony that he was told by an inspector during his work with another mine company, that underground miners could be given advance warning once the inspector had crossed onto the mine property.

Blanchard said he didn’t consider it advance warning, but more of a notice than an inspector was on site.

But Ruby pointed out that at UBB, giving notice allowed miners a great deal of time to cover up safety violations that would have otherwise been caught, effectively hindering the inspectors’ ability to do their jobs.

Blanchard said Blankenship knew of the general practice, but not the particulars.

• • •

Blanchard was reluctant to agree that his attorneys prepared him for questions the defense attorney would ask, but he did admit that his attorneys prepared him for cross examination.

Blanchard’s legal fees were first paid by Massey Energy, then by Alpha Natural Resources, the company who bought out Massey.

Blanchard told jurors that Massey was sued after the April 5, 2010, UBB explosion. He said he was personally sued as well.

Redirect will continue at 9 a.m. in Charleston federal court.

• • •

During the last portion of cross examination, Taylor pointed out that oftentimes more miners were staffed at UBB than what had been budgeted, a counter-argument to the prosecution’s point that Blanchard’s staffing requirements were rejected by Blankenship.

Blanchard discussed a November 2009 memo he sent to all his superintendents, asking them to give him a report each morning. Safety was the first bulleted item on the list.

“That’s the single most important job any of them had,” Blanchard testified Thursday.

Taylor also pointed out in the first quarter of 2010, UBB used more than three times the amount of rock dust required by MSHA.

He again asked Blanchard if he and Blankenship were part of a willful agreement to violate safety regulations; Blanchard said no.

By Wendy Holdren

AP Exchange

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