Court says Massey can appeal MSHA restrictions
MCT REGIONAL NEWS
By Taylor Kuykendall
The Register-Herald, Beckley, W.Va.
(MCT)
June 11--A federal appeals court says Massey Energy is entitled to appeal the restrictions federal investigators placed on its internal investigation.
The unanimous decision, written by Judge Janice Rogers Brown and released Friday by the United States Court of Appeals for the D.C. Circuit, says Performance Coal, a Massey subsidiary, is entitled to appeal the Mine Safety and Health Administration's restrictions on the coal company in the investigation of the Upper Big Branch mine explosion.
A request from Massey to challenge the restrictions was refused shortly after the incident.
The appeal to the Federal Mine Safety and Health Review Commission was initially denied. The denial was based on an interpretation of a Mine Act rule the court of appeals found "untenable."
Massey recently released the results of the investigation in a report that calls the incident an act of nature and denies culpability. The report was contrary to an independent investigation that found fault in the recently merged company's safety culture.
MSHA had seized control of the site hours after the explosion. Later, safety officials would determine 29 coal miners had died as a result of the explosion.
In June, Massey asked the commission to remove some of the modifications that had been made to the control order to complete an internal investigation.
West Virginia. 
In a unanimous decision, a US federal appeals court issued a ruling Friday against the federal government, in favor of , owner of the Upper Branch Mine in West Virginia, the location of last year's  that killed 29 workers. The court ruled the company may appeal the restrictions placed on it by a government order hindering the company's ability to conduct its own internal investigation of the disaster. 

The order controlling Massey's investigations into the disaster was placed on Massey immediately after the incident by the  (MSHA) when it seized control of the coal mine six hours after the blast on April 5.

MSHA's controls prohibited Massey from "taking or retaining photographs, collecting and preserving mine dust samples, employing mine mapping technology, and participating in or objecting to any destructive testing of materials gathered underground." Massey said MSHA's restrictions prevented the company from evaluating the accident site before it was altered by investigators, and denied Massey the chance to gather evidence to use in the company's defense.

Massey's appeal to the  (the commission that decides disputes over mining regulations) to void the order by MSHA was denied by the commission. It based its decision on its interpretation of the  that it had no authority to consider Massey's appeal. The  set aside this decision, finding the commission's interpretation of the act was "simply untenable" and the government's actions had denied Massey the opportunity to gather "potentially important exculpatory evidence".

The court rejected the commission's position that the Mine Act's language was ambiguous, allowing the government flexibility in its implementation. Rather, the court said, "No matter how you parse it, the act is a model of near-perfect clarity. Indeed, it is hard to imagine a clearer expression of congressional language." It also rejected the commission's position that the case was moot: "This case is not moot. Indeed, even the  counsel recognized the near-frivolity of this argument, and made only a half-hearted attempt to persuade us."

The court's ruling comes after a state government-comissioned report issued on May 19 by investigators found Massey Energy responsible for the deaths of the 29 workers. The workers were killed in an explosion that could have been avoided, the report said, if Massey had put in place standard safety procedures.

"The story of Upper Big Branch is a cautionary tale of hubris. A company that was a towering presence in the  coal fields operated its mines in a profoundly reckless manner, and 29 coal miners paid with their lives for the corporate risk taking," the report read. "The company's ventilation system did not adequately ventilate the mine. As a result, explosive gases were allowed to build up." The report detailed claims Massey threatened miners with termination if they stopped work in areas that lacked adequate oxygen levels and listed numerous other state and federal safety standards that Massey failed to follow. Also blamed in the report was MSHA for failing to enforce federal regulations.

The report was considered by the those in the mining industry as especially direct and "hard hitting". It firmly rejected conclusions reached by Massey officials that the incident was caused by an unexpected, massive, and uncontrollable  bubble eruption, an occurrence that Massey said it could neither predict nor manage.  

The company immediately challenged the report and issued its own report on June 3, blaming the blast on an act of nature and denying the company's safety culture was at fault. MSHA also have an as-yet unreleased report in the works.