A federal appeals court today ruled in favor of Massey Energy Co. -- now owned by Alpha Natural Resources Inc. -- over the federal government's handling of the investigation into the Upper Big Branch mine disaster in West Virginia.
The case concerns the refusal of the government to allow Massey to immediately challenge an order that restricted it from completing its own investigation into the April 5, 2010, incident at the mine, in which 29 miners died.
The three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia concluded that the Federal Mine Safety and Health Review Commission, which handles legal disputes over mining regulations, was wrong to rule that it had no authority to consider Massey's appeal.
The judges had appeared sympathetic to Massey during the oral argument in April (Greenwire, April 4).
After the incident, the Mine Safety and Health Administration immediately seized control of the mine, as authorized under the Mine Act, by issuing a control order.
In June 2010, Massey asked the commission to lift modifications to that control order that prevented it from carrying out its investigation, but that request was rejected.
The commission said the Mine Act did not allow it to grant temporary relief from a modification to a control order.
The appeals court disagreed.
Writing for a unanimous panel, Judge Janice Rogers Brown wrote that the government's position was "simply untenable."
The government had maintained that statutory language in the Mine Act was ambiguous, which therefore meant the government had some leeway in how it interpreted it.
But Brown wrote that the statutory language "satisfies us that the provision is unambiguous," meaning that Massey could seek temporary relief from "any order."
Clearly unimpressed with the government's position, Brown concluded that the statute is, in fact, "a model of near-perfect clarity."
The court also rejected the commission's argument that the case was moot because the modifications to the order were no longer in effect.
Massey noted in court papers that it could not take or retain photographs, collect mine dust samples or participate in destructive testing of materials gathered underground.
The government's actions potentially deprived Massey of "potentially important exculpatory evidence" that could be vital depending on what conclusion is reached in the investigation, the company's lawyers maintained.
Massey denies blame
The ruling comes in the wake of a report by independent investigator Davitt McAteer, appointed by former West Virginia Gov. and now U.S. Sen. Joe Manchin (D), faulting Massey for contributing to the explosion through a focus on profits over safety.
But earlier this month, a former Massey executive, without Alpha's approval, released the results of the company's own investigation (E&ENews; PM, June 3). Massey denies wrongdoing in its report and blasts the Mine Safety and Health Administration for a "deeply flawed" investigation, saying the agency has been trying to build a case against Massey instead of looking for the true cause of last April's disaster.
"Although MSHA closed off the mine from any underground investigation for nearly three months to allow conditions to improve, MSHA nevertheless affixed blame in the interim," the Massey report says, adding that the agency put up numerous obstacles to the company's assessment.
MSHA is scheduled to release more information about its investigation later this month. A Justice Department criminal probe is also ongoing.
Click here (pdf) to read the ruling.
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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.