The company said the MSHA order prohibits its internal investigators from utilizing “basic investigative tools” including cameras, electronic mapping and coal dust analysis as it seeks answers to why the Raleigh County, West Virginia mine exploded and killed 29 miners.
Massey is seeking emergency relief from the Federal Mine Safety and Health Review Board to overturn the federal order.
“It is troubling that MSHA would seek to limit the ability of investigators to locate and analyze important evidence that is essential in determining the cause of the Upper Big Branch mine accident,” company general counsel Shane Harvey said.
“MSHA’s actions imply that the agency does not want a thorough, objective and inclusive inquiry.”
MSHA’s order prohibits the company from taking its own photographs and coal dust samples from underground at UBB, which Massey said would hinder its efforts for expert evaluations of the conditions.
“MSHA’s effort to prevent a more comprehensive inspection of the mine is particularly troubling in light of the fact that the agency itself is under scrutiny for demanding questionable mine ventilation modifications mere weeks prior to the accident,” Massey said in the legal filing documentation.
“Because the law plainly does not permit MSHA to make [Massey] a bystander at an investigation of its own mine, [Massey] has respectfully requested that the Federal Mine Safety and Health Review Commission modify the Section 103(k) order so that the investigation of the Upper Big Branch accident can move forward in a credible fashion consistent with law.”
MSHA responded to the challenge rapidly, arguing that it developed specific protocols in tandem with state officials that would protect the integrity of the UBB investigation.
“These rules were put in place to ensure that evidence is not disturbed during the sampling or mapping process and were agreed to by all participating parties – including the United Mine Workers of America and governor Joe Manchin’s review team – except Massey,” spokesperson Amy Louviere said.
“Massey investigators, who will accompany federal investigators during the course of the examination of the mine, can make suggestions to the sampling and photographic teams, and MSHA investigators will make every effort to accommodate their requests.”
She said any investigation, particularly one involving a criminal component, must be handled with care.
Within hours of MSHA’s statement, Massey Energy officials called the agency’s defense of the protocol “unfounded”
“You cannot disturb evidence by taking photographs of it,” Harvey said.
“MSHA never raised these concerns before and their after-the-fact justification is not credible.”
H John Head, a mining expert called on to review MSHA’s protocol, said the agency’s stance would produce an investigation that was less thorough and transparent.
“The inclusion of additional evidence materials, such as photographs, coal dust samples, and electronic mine maps, shared with all the parties in the investigation, will only enhance the ability of investigators in uncovering the underlying causes of the UBB accident,” he noted.
Harvey added that the company has concern that MSHA will only gather and share information that did not reflect poorly on, or discredit, its own theories.
“From the very beginning of our discussions with MSHA, Massey has offered to share immediately the results of any tests we perform, any photographs we’re permitted to take, and any other data we collect with MSHA and the US Attorney,” he said.
“We have nothing to hide and everything to gain by ensuring that the factual record is fully developed,” Harvey said.