1. MINING: Massey refuses blame for Upper Big Branch, is rebuked by new owner (E&ENews PM, 06/03/2011)
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Manuel Quinones, E&E; reporter
A former Massey Energy Co. executive today released the results of the company's investigation into the Upper Big Branch explosion that killed 29 miners in West Virginia last year, contradicting the results of an independent probe released last month.
The Massey report -- released just days after the company was bought by Alpha Natural Resources Inc. and without its new owner's permission -- blames the deadly blast on a "massive inundation of natural gas."
Breaking with results from the independent probe led by former Mine Safety and Health Administration chief Davitt McAteer, who was appointed by former West Virginia Gov. Joe Manchin (D) to investigate the disaster, the Massey document says coal dust "did not contribute materially" to the magnitude or severity of the blast.
"Immediately after the accident, MSHA captured gas samples from air exiting from the mine's exhaust fan," the Massey report says. "These samples show conclusively that the mine experiences a massive inundation of natural gas that was distinct in its composition from ordinary coal bed methane."
The McAteer report cited poor ventilation systems at Upper Big Branch, which allowed a buildup of explosive gases. And it said water sprays on a mining machine did not function adequately, prompting a small ignition to grow in strength.
The Massey report also tries to shoot down those assertions. "Despite the contrary evidence, the government has settled upon the longwall shearer as the ignition source," it says. "As with other aspects of the government's investigation, its theory cannot be reconciled with evidence."
In a cover letter accompanying the report, Bobby Inman, the former Massey chairman, said the report's release was delayed to avoid bad publicity in advance of the Alpha-Massey merger. The delay was requested by Alpha executives and major Massey shareholders, he said.
Inman previously accused the Obama administration of wanting to "destroy" Massey, according to unsealed court documents (Greenwire, May 25).
McAteer's report paints Massey as a rogue operator, focused more on profits than safety (Greenwire, May 19). "A company that was towering presence in the Appalachian coalfields operated its mines in a profoundly reckless manner, and 29 coal miners paid with their lives for the corporate risk-taking," it says.
But the Massey document paints the company as a promoter of mine safety that was under attack by regulators. In his cover letter, Inman said, "My fellow Board member Stan Suboleski, who has great expertise in this area, will provide a critique of the McAteer report in the next week or two."
The Massey report directs its heaviest fire at MSHA, saying the agency has been trying to build a case against Massey instead of looking for the true cause of last April's disaster.
"It is unacceptable to expect MSHA to act as the investigator, judge and jury when their direct actions or lack thereof may have contributed to accidents," Inman wrote.
Even as Massey's report takes aim at MSHA's investigation, the federal agency has yet to make its findings public, other than preliminary reports that appear to conform with McAteer's conclusions.
"We are currently reviewing the findings that appear in Massey's report released this morning," an agency spokesman said in a statement. "MSHA's own conclusions about the cause of the explosion at Upper Big Branch will be discussed in great detail at our public briefing June 29 in [Beckley, W.Va]."
Alpha responds
In a statement this afternoon, Alpha Natural Resources called the report's release "inappropriate."
Alpha said it would conduct its own probe into the Upper Big Branch disaster and promised to cooperate with pending government investigations, including a criminal probe by the U.S. Department of Justice.
"Alpha Natural Resources did not commission or authorize the release of the report or the letter, and was not given the opportunity to review either this report or the letter before the public release," the statement said.
"Although Alpha did not operate the Upper Big Branch mine at the time of this tragic explosion, Alpha feels strongly that the families of the fallen miners are owed a complete and final explanation of the circumstances surrounding the accident."
The release puts Alpha CEO Kevin Crutchfield in a tough spot. He has taken pains to promise a safer future for former Massey mines.
In a statement after the merger he said, "We will immediately begin building upon our history of successful integrations, including implementing Alpha's unique employee-driven Running Right philosophy of safety and environmental stewardship across the businesses."
Click here to read the Massey report.
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.