“Charlie Bearse [Massey’s expert investigator] has directly denied entry to MSHA’s investigation teams by refusing to continue to work toward providing the longwall shear(s) [sic] with water,” MSHA said in Citation 8256942 provided to ILN by federal regulators late Tuesday evening.
“Mr Bearse was told that this action impedes MSHA’s investigation and that a violation of Section 103(a) would be issued, to which he replied, ‘Serve it to my name’.”
The federal section violation is the second for Massey since the start of the agency’s investigation.
The refusal was made and citation issued November 10, though MSHA spokesperson Amy Louviere told ILN Tuesday evening that federal regulators had extended the time Massey had for abatement of the violation from that day to November 17 at 12pm local time.
Massey did not respond to a request for comment Wednesday afternoon, but Louviere confirmed for ILN at approximately 2pm local time that the noon deadline had not been met.
“MSHA has extended the citation abatement deadline until Friday [November 19] to allow the operator more time to find a backup generator for the fan,” she said.
In its initial extension statement, MSHA said it intended to continue discussions with the company to achieve a “mutually acceptable solution” to the issue.
“While completing our respective investigations is an important concern, assuring the safety of underground personnel while we do so is paramount. MSHA continues to conduct its investigation, and we feel confident that we'll arrive at the cause of the explosion by the time the investigation has been completed.”
MSHA’s legal options
The agency said Tuesday that it would negotiate with Massey to find a reasonable solution to the sprayer issue, but also was clear that it would progress with any options necessary.
“We would like to avoid taking legal action. However, if we can’t reach a resolution, we will consider using any tools at our disposal that we feel are warranted.”
According to Pennsylvanian newspaper the Pittsburgh Post-Gazette, a threat of seizure has been brought should Massey continue to battle with federal officials.
The newspaper did not reveal any source which may have directly used the term “seizure”, an order which would give MSHA regulators complete control of the now-closed West Virginian mine.
Massey did not respond by press time with comment; MSHA’s Louviere said only that she had not used the specific term and could not comment further.
Massey said Tuesday that it had no issue with testing the shearer, but wanted to completely investigate the area before inundating it with water.
"For the last several weeks, MSHA has tried to force (Massey) to destroy critical evidence and has inexplicably prevented the company from applying the latest technology in its investigation," general counsel Shane Harvey told ILN this week.
"The company has sought MSHA's cooperation, but MSHA appears reluctant to allow any investigation that may reach a conclusion different than the one MSHA reached mere days after the explosion."