Facts on the ground also establish that controls, in the form of regulations promulgated by OSHA, are not a deterrent. Citations for violations are routinely ignored. Fines are routinely contested. A classic example is a $305 fine assessed in January 2007 for excessive accumulation of combustible materials. Over three years later the fine is still being contested, presumably at a cost of many thousands of dollars in legal fees.
Massey has so far paid less than $300,000 of about $1.5 million on penalties proposed for violations at the Upper Big Branch mine since 2007. About 36 percent of those fines are still being contested.
In 2009, fines totaling $911,802 were assessed against the mine. Only about 16 percent has been paid.
Since 1995, over $2.2 million has been assessed against this mine. Only $791,327 has been paid. Massey is currently contesting the other $1,128,833 in fines and $246,430 in delinquent fees levied against the Upper Big Branch mine.
Since 2005, fines totaling $43.5 million have been proposed against Massey properties. Massey contested, and so far has paid only $11.8 million.
The fines are not effective because Massey has determined that contesting them is more cost-effective than complying with mine safety laws that protect the lives of its workers.
In the last quarter of 2009, Upper Big Branch produced 525,000 tons of coal. The annual production rate of 2.1 million tons at Upper Big Branch was sold at an average of $91 per ton. This works out to about $191 million in annual gross revenues, or about $950,000 per worker per year. The $911,802 in fines proposed for the mine totaled less than one-half of one percent of gross revenue, or less than the value of coal produced by a single worker.
Twenty-nine workers paid with their lives in order to save the value of one year's production by a single worker. A fine example of American-style socialism, where benefits go to the few at the expense of the many.
Blankenship, an accountant by training, well understood the cost-effectiveness of flagrantly violating workplace safety rules and then contesting the resulting fines, the lives of the workers be damned.
Liability for damages from accidents has also been dealt with in a cost-efficient manner. Last month in a remarkably prescient move Massey ended its self-insurance program and purchased disability compensation insurance for injured miners. A fine example of elimination of financial risk by shifting the cost of tragedy to others.
The underlying issue is how rogue companies such as Massey can be controlled. The short answer: They cannot be controlled with the current system of assessing fines for violations. More drastic efforts are necessary.
Fortunately, the Supreme Court recently enabled more drastic efforts, by declaring that corporations are persons, just like humans.
The logical conclusion is that a corporate person, just like a human person, is subject to criminal conviction and more importantly is subject to criminal penalties. In particular as to Massey Energy, penalties that apply to mass murderers.
According to the U.S. Bureau of Justice Statistics mass murder is defined as "the murder of four or more victims at one location, within one event."
Examples of imposition of appropriate punishment for commission of mass murder are legion.
Vincent Brothers, a former elementary school vice principal in California, was convicted of murdering his wife, his two sons, his daughter and his mother-in law in July of 2003. In 2007 his jury recommended death by lethal injection.