Monday, June 13, 2011

In a unanimous decision, a US federal appeals court issued a ruling Friday against the federal government, in favor of Massey Energy Co, owner of the Upper Branch Mine in West Virginia, the location of last year’s mine disaster 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 Mine Safety and Health Administration (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.

The story of Upper Big Branch is a cautionary tale of hubris. A company that was a towering presence in the Appalachian coal fields operated its mines in a profoundly reckless manner, and 29 coal miners paid with their lives for the corporate risk taking.

Massey’s appeal to the Federal Mine Safety and Health Review Commission (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 Mine Act that it had no authority to consider Massey’s appeal. The United States Court of Appeals for the District of Columbia Circuit 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 [Labor] Secretary’s counsel recognized the near-frivolity of this argument, and made only a half-hearted attempt to persuade us.”

This case is not moot. Indeed, even the Secretary’s 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 Appalachian 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 methane 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.