Judge Rejects Massey Evidence Role In Mine Probe

A federal administrative court judge has firmly rejected Massey Energy's demand that it gather its own evidence underground in the investigation of the April coal mine explosion that killed 29 mine workers.

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Massey, which owns the Upper Big Branch coal mine in West Virginia, wanted to have its own photographers and mapping crews involved in the investigation underground. The company also wanted to take its own dust samples. But the Mine Safety and Health Administration said the additional people underground and the time needed for their work are safety hazards.

Judge Margaret Miller of the Federal Mine Safety and Health Review Commission sided with the government, saying the rejection of Massey's own evidence gathering is "rationally connected to safely conducting the accident investigation."

The ruling was issued Friday but was not announced publicly. NPR obtained a copy of the ruling Tuesday.

Massey's Response

A spokesman for Massey Energy says the company disagrees with the decision and is skeptical of the official investigation.

"MSHA's shoddy investigation, combined with the exclusion of our evidence gathering, compromises the integrity of the investigation," said Shane Harvey, Massey's vice president and general counsel, in a statement to NPR.

Massey has challenged several key aspects of the Upper Big Branch investigation, including testing results released last week. MSHA officials told reporters that 79 percent of the dust samples taken from the mine after the explosion are out of compliance with federal standards. Those standards are designed to prevent the accumulation of explosive coal dust, which feeds and spreads explosions.

Massey said the samples were not reliable because they were likely affected by the explosion. MSHA responded that its coal dust expert insists any blast impacts would make the sampling results more favorable to Massey.

Judge's Ruling

A spokeswoman for MSHA told NPR that mine safety chief Joe Main was not available to respond to Miller's ruling. The agency is planning to issue a statement Wednesday.

In her ruling, Miller referred to a declaration by lead MSHA investigator Norman Page, in which he listed the dangers underground, including rock fall, poor visibility, flooding, debris and noxious gases.

"Page determined that limiting the number of individuals underground and the length of time individuals spend underground are safety-related concerns, as this minimizes the total number of individuals exposed to the potentially hazardous conditions," Miller wrote.

The ruling also refers to a Massey expert's contention that the mine was not as dangerous as Page suggested and that the Upper Big Branch investigation was conducted differently than other mine disaster probes. Miller called the latter argument "meaningless, as each accident investigation has its own special circumstances."

Miller also noted that MSHA offered Massey the opportunity to ask investigation photographers to take specific images Massey desired. The agency offered Massey dust samples for its own analysis. Massey representatives are also part of the investigative teams underground.

Investigators from West Virginia's mine safety agency and an independent group assembled by Gov. Joe Manchin are also part of the teams underground, as well as representatives of the United Mineworkers union.

Compromised Investigation?

Still, Harvey insists the investigation is compromised without Massey's own evidence gathering.

"We are disappointed that so little consideration was given to the views of the many experts and former MSHA officials who stepped forward and said this investigation is being handled inappropriately because of the lack of proper mapping and photography," Harvey said.

Miller scoffed at Massey's claims in an earlier ruling in the case in July.

The company's "documents exaggerate and misrepresent the facts, and make little attempt to address the legal issues that are being raised," Miller wrote. "Instead, [the company] treats this Court as a forum for grandstanding and, in doing so, attempts to interfere with the ongoing investigation."

Last week, MSHA officials said the Upper Big Branch investigation was about 90 percent complete.

Still, Massey's Harvey says the company will continue to press for a direct role in the investigation and will appeal Miller's decision to the full Federal Mine Safety and Health Review Commission.



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