Former Mine Regulators Criticize MSHA Bar On UBB Photographs

Published on Friday, 16 July 2010 08:56 Written by TradersHuddle Staff

JULIAN, W.Va., July 16 /PRNewswire-FirstCall/ -- Massey Energy Company (NYSE: MEE) today noted that two former, high-ranking federal mining regulators, David Lauriski, former Assistant Secretary of Labor for the U.S. Mine Safety and Health Administration (MSHA), and Michael Lawless, former Deputy Administrator of MSHA, agree that MSHA has exceeded its legal authority by barring the Company from photographing and conducting other tests at its Upper Big Branch (UBB) mine to help determine the cause of an April 5, 2010 accident.

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Massey Energy wants to take its own photographs, conduct electronic mapping and take coal dust samples as part of the investigation. The two former regulators have signed declarations supporting Massey Energy in its legal action against MSHA. The legal challenge asks the Federal Mine Safety and Health Review Commission to overturn MSHA's order against Massey.

Mr. Lauriski said the prohibitions imposed by MSHA "are extraordinary and problematic," have nothing to do with miner health or safety and that in fact they exceed MSHA's authority under federal law. Also, he said, MSHA has never before imposed such restrictions on a mine operator during an accident investigation.

Massey, he said, has the right "to take photographs during such inspections and investigations [of a mine after an accident], to map a mine or an area of a mine to take dust samples and observe and/or participate in evidence testing without impeding or interfering with MSHA's inspection or investigation."

Mr. Lauriski added that, in his professional opinion, allowing Massey to take pictures, to map, and to sample coal dust would not interfere with the federal investigation — and, he noted, Massey has offered to share all of any information it gathers with federal investigators.

Mr. Lawless, who worked at MSHA as a regulator for more than 30 years, agreed that MSHA's prohibitions on Massey "cannot be justified by safety concerns or the current condition of the Mine."

"To my knowledge," Mr. Lawless said in his declaration, "MSHA has never imposed such wide-ranging restrictions on any mine operator during an accident investigation." In fact, he said, MSHA accident investigation reports often incorporate pictures and electronic maps produced by the mine operator.

In previous MSHA accident investigations, Mr. Lawless said, mine operators also were allowed to take their own coal dust samples.

Shane Harvey, Vice President and General Counsel for Massey, said the willingness of two former MSHA regulators to support Massey's complaint shows just how unusual are the limits imposed on the Company by MSHA.

"For an accident as serious as UBB, the more information that can be gathered during the investigation, the better," Mr. Harvey said. "Yet, MSHA is doing what it can to limit our ability to look into an accident at one of our own mines. This isn't right. And it doesn't look good for MSHA, given that its own conduct is under investigation."

The legal filing seeking relief can be found on the Massey UBB website at www.masseyubb.com.  

Massey Energy Company, headquartered in Richmond, Virginia, with operations in West Virginia, Kentucky and Virginia, is the largest coal producer in Central Appalachia and is included in the S&P 500 Index

SOURCE Massey Energy Company