MINING:

Judges leaning toward Massey in Upper Big Branch case

A federal appeals court appeared sympathetic this morning to Massey Energy Co.'s argument that it should have been able to immediately challenge a government order that restricted it from completing its own investigation into the Upper Big Branch mine disaster in West Virginia.

The case relates to the April 5, 2010, explosion that killed 29 miners.

The anniversary of the blast is tomorrow, which has prompted renewed interest in what happened and the resulting investigation, which is still incomplete (E&E Daily, April 1).

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is considering whether 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.

After the disaster, 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, 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 didn't allow it to grant temporary relief from a modification to a control order.

But at today's hearing, two of the three judges on the panel seemed to reject that conclusion, saying the Mine Act contains no language that would have prevented the commission from at least considering Massey's request.

The government's position was that statutory language in the Mine Act was ambiguous, which therefore meant the government had some leeway in how it interpreted it.

But Chief Judge David Sentelle didn't see it that way.

"I must say I have a hard time finding ambiguity here," he said.

In fact, the language seems clear that companies can seek review of modifications to a control order, he added.

Judge Douglas Ginsburg appeared to agree, noting that it would be "peculiar" for the statute to have been written the way the government interpreted it. "Not that Congress doesn't do peculiar things," he noted.

Sentelle and Ginsburg also both outright rejected the government's argument that the case is moot because the modifications in question are no longer in effect.

Ginsburg forced government lawyer Edward Waldman to concede that dozens of other modifications have been made in the months since the incident and more may be made in future. Therefore, there is a chance Massey may want to challenge other modifications.

The government's argument was "strained," Ginsburg said.

Massey's lawyer, Patrick Slevin of the Patton Boggs law firm, noted in court papers that the company was prevented from taking or retaining photographs and collecting mine dust samples, and could not 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, Slevin wrote.

Throughout the argument, Waldman faced an uphill struggle, with Sentelle repeatedly challenging his contentions.

"I don't know what you are talking about," Sentelle said at one point.

The investigation into the accident is still ongoing.

The underground portion of the investigation into the disaster is almost complete, MSHA head Joseph Main said at a Senate hearing last Thursday. MSHA has conducted more than 260 interviews and dedicated more than 100 enforcement workers to the investigation, he said.

Industry leaders are likely watching this case closely, worried about their ability to conduct their own independent probe in case of an accident at another mine.

Preliminary reports from MSHA indicate the Upper Big Branch explosion started with a small methane ignition fueled by the accumulation of coal dust. Former Massey Energy CEO Don Blankenship disputed those claims last year, saying natural causes led to the explosion.

Reporter Manuel Quinones contributed.