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Published: Wednesday, July 06, 2016
Page: 1C

Lawyers for coal industry lobby organizations in West Virginia and two other states are urging a federal appeals court to closely scrutinize the criminal conviction of Don Blankenship, saying the prosecution of the former Massey CEO wrongly puts any coal executive at risk of criminal liability.

Attorneys for the West Virginia Coal Association, the Illinois Coal Association and the Ohio Coal Association asked the 4th Circuit Court of Appeals to consider a "friend of the court brief that echoes some of the central legal arguments made by Blankenship's legal team in his pending appeal.

In the 40-page brief, the industry lawyers say the groups "do not seek to endorse or sanction any of Blankenship's conduct or "speak to the totality of the evidence in the case, but said that they "cannot sit idly by and allow the expansion of criminal law to the point that mere involvement of company management in certain affairs can serve as a basis, in whole or in part, for criminal prosecution.

"Operating a coal mine is a difficult venture that presents tough decisions for its managers, who are required to navigate a regulatory minefield in order to operate a successful company, the brief says.

"Those decisions, especially with respect to production, safety, and regulatory compliance, may at times be imperfect, prone to second-guessing, and, despite the best intentions, even incorrect, the brief says. "However, those decisions should not lead to criminal liability unless it is proven beyond a reasonable doubt that the individual possessed the "evil purpose necessary to establish that the conduct was illegal, not just general knowledge of the effects of broad regulatory involvement.

Blankenship is currently serving a one-year sentence - the maximum allowable under current law - in a California federal prison after being convicted of conspiring to violate mine safety and health standards at Massey's Upper Big Branch Mine, where 29 workers died in an April 2010 explosion.

The industry groups' brief focused largely on the legal issue of whether jury instructions from U.S. District Judge Irene Berger allowed Blankenship to be convicted without proof that he agreed he and his conspirator would do something Blankenship knew to be a crime, a key argument emphasized by Blankenship's lawyers in their appeal brief with the 4th Circuit.

Industry lawyers argued that Berger's instructions defining the term "willful allowed the jury to convict on a lesser standard of culpability in that the instructions did not require a finding that Blankenship acted "with a bad purpose or "with knowledge that his conduct was unlawful. Under such instructions, the industry lawyers said, coal company officials could be found guilty of a crime if they "failed to take enough action necessary to comply with federal safety and health standards and prevent federal Mine Safety and Health Administration inspectors from issuing violations.

"In isolation, the number of citations issued by mine inspectors at any coal mine may seem significant, the industry brief says. "However, when viewed in the proper context, the reality is that such citations are an unavoidable fact of mining coal, given the ever-changing geological conditions in mines coupled with the heightened level of regulatory scrutiny under which mines carry out their daily operations.

Also, the industry lawyers suggest that Blankenship's conviction, if upheld, could lead top coal executives to avoid becoming closely involved in safety and health decisions at their mines to avoid the potential for criminal prosecution.

"As such, it is imperative to clearly and definitively distinguish between legal and acceptable business practices for the lawful production of coal and willful criminal behavior, the industry lawyers say. "Without that distinction, one person may face serious criminal exposure for setting certain production goals while another may choose to insulate him or herself from receiving important information regarding safety and MSHA compliance for fear that such knowledge may subject them to criminal prosecution. In sum, the lack of a clear distinction would serve the dual effect of potentially punishing legal business practices while simultaneously deterring detailed oversight over important aspects of company safety and regulatory compliance.

Reach Ken Ward Jr. at, 304-348-1702 or follow @kenwardjr on Twitter.

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