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Massey CEO Don Blankenship's team of corporate attorneys plea bargained an "unusual" probation sentence of 3 years from what the judge felt were criminal felony offenses committed during the 2006 fire at Aracoma's Number One mine which caused the deaths of miners Elvis Hatfield and Don Bragg. And even though his company was penalized $25 million, it apparently meant little more than a slap on the wrist since Blankenship personally pulled down at least $129.2 million in salary, bonuses, and perks between 1999 and 2008.
That sentence was handed down in 2009, so Massey's CEO is apparently still under probation. But U.S. Attorney Charles Miller's plea agreement severely limited Blankenship's probation to violations which could occur within the Aracoma Number One mine only, so any criminal negligence or malfeasance which may or may not have caused the deaths at Upper Big Branch apparently wouldn't count.
Lucky for Blankenship that Miller is a holdover from the controversial group of Bush appointees for U.S. District attorney positions across the country.
"There's something wrong with a regulatory system that doesn't quickly address repetitive violations, said Davitt McAteer, a former federal mine safety chief who investigated the Sago and Aracoma mine disasters.
"When you see a mine that continues to have large numbers of citations and penalties month after month, the curative effect has not taken hold, and that needs to be put in place somehow," McAteer said.
Taken in context, what Mr. McAteer strongly implies is that either the regulations aren't being enforced, or that the fines simply aren't stiff enough to persuade Massey to stop. Friends of mine who are in a position to know tell me that the problem is actually a combination of both, and that coal operators are tag-team gaming the system based on an industry-wide cost/ benefit analysis which sorely undervalues human life.
Supporting what my friends have told me is the report that there is currently a backlog of around 16,000 challenges to violations by a number of mine operators.
"...more mining companies are fighting back when they get fined.
Most of these challenges go to the Federal Mine Safety and Health Review Commission. The new chairman, Mary Lu Jordan, told a congressional committee recently that the caseload has skyrocketed.
"Currently, there's a backlog of approximately 16,000," she said.
But critics say that's not the whole story on enforcement when it comes to Massey Energy.
"In this instance, I don't think MSHA did enough to protect the miners in the Massey mine," said Tony Oppegard, a lawyer in Lexington, Ky., who specializes in representing miners and their families. "They did not use all the enforcement tools at their disposal."
The tool he's referring to? If the violations were egregious enough, MSHA could have gone to a federal court and asked a judge to shut down the mine at least temporarily.
MSHA has yet to do that: Not with Upper Big Branch South and not with any other mine.
Not forcing a shutdown of the Upper Big Branch operation could be tantamount to state sanctioned mass murder if what those same friends have told me about Blankenship holding enough stock and proxy votes that he's not just Massey Energy's CEO, but that legally he's essentially its owner/ proprietor.
That may well explain how he can get by with virtually anything on behalf of the corporation, without even getting his paycheck docked.
At a news conference after the Aracoma probation hearing, U.S. Attorney Charles Miller said mine safety laws do not always allow prosecution based on lapses in "moral responsibility" uncovered during investigations.
In retrospect, the District Attorney's little "do not always" catch phrase above certainly bends the law to support standing corporate policy. Then he adds,
"We may believe that Massey Energy may have established production goals that may have forced the operation at Aracoma to cut corners. [But] that's not a criminal violation."
It's just too bad that the widows resulting from the Upper Branch South explosion that District Attorney Miller never let a jury make the decision whether or not it's a criminal violation.
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