Commission sides with MSHA in UBB legal tangle

AN administrative law judge for the Federal Mine Safety and Health Review Commission has ruled that the US Mine Safety and Health Administration did not abuse discretion in its protocol guidelines for the Upper Big Branch explosion investigation.
Commission sides with MSHA in UBB legal tangle Commission sides with MSHA in UBB legal tangle Commission sides with MSHA in UBB legal tangle Commission sides with MSHA in UBB legal tangle Commission sides with MSHA in UBB legal tangle


Donna Schmidt

The legal challenge, filed in June by UBB mine owner Massey Energy and its subsidiary Performance Coal, argued against the federal agency’s move to prohibit the producer’s investigators from using cameras, mapping, collecting evidence and conducting sampling at the operation.

ALJ Margaret Miller decided this week that MSHA’s protocols were “rationally connected to safely conducting the accident investigation” and that it did not abuse discretion when the protocols were adopted.

Federal officials said MSHA worked in tandem with the West Virginia Office of Miners’ Health, Safety and Training to outline procedures in June in an effort to preserve evidence, and also considered input from Performance Coal and other entities involves with the investigation.

Agency assistant secretary of labor for mine safety and health Joseph Main said MSHA also modified those protocols to accommodate “a number” of requests by the company.

“The joint protocols were established with one goal in mind: to maintain the safety of all persons involved in the underground investigation and their exposure to potentially hazardous conditions,” he said.

“Having too many people underground would delay the investigation and increase the amount of time it takes for those persons to exit the mine in the event of an emergency.

“Massey’s complaints about the investigation were unfounded, and the company was not disadvantaged in any way – they were allowed to request that certain photos be taken, to view them underground and promptly receive copies of them, to receive copies of maps, and to receive excess material from dust samples whenever possible.”

The commission’s decision, Main added, summarizes the rational of UBB lead investigator Norman Page for establishing the protocol guidelines.

“Page determined that a limited number of cameras should be underground, taking into consideration the fact that cameras are not permissible, that gas checks must be made before they are used, and that the inspection will proceed more quickly with only one photographer.

“In addressing the issue of mapping, Page again considered the issue of permissibility and the number of persons underground for purposes of safety.”

The same was true for dust sampling mandates.

Miller said following her review of Page’s assessments that the secretary of labor may insist on protocols believed to be necessary to ensure safety of the investigation.

“While those protocols may not be what Performance wants or expects, they are nonetheless reasonable and intended to ensure the safety of all persons in the mine,” Main said.

Massey officials did not respond to an ILN request for comment or release public comment on the decision prior to press time.