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Coal firm 'grandstanding,' judge says

Read the ruling here.CHARLESTON, W.Va. -- Massey Energy's Performance Coal Co. is "grandstanding" in its lawsuit challenging the government's procedures for investigating the deaths of 29 workers at the company's Upper Big Branch Mine, a federal administrative law judge has ruled.

Judge Margaret Miller of the Federal Mine Safety and Health Review Commission blasted Massey subsidiary Performance Coal in a ruling that turned down the company's request for an expedited hearing in its lawsuit.

Miller concluded that she was "troubled by the misrepresentations" made by Massey lawyers in the case, by the company's "overstated allegations" and by the "waste of time and resources" in filing of documents without information helpful to resolving the matter.

"Performance treats this court as a forum for grandstanding and, in doing so, attempts to interfere with the ongoing investigation," Miller wrote in a six-page ruling issued last week.

"I am concerned about the motives of Performance in this case," Miller wrote. "Instead of focusing on the issue at hand and submitting legal authorities that entitle it to an expedited hearing, it uses this venue to attack the investigative techniques of MSHA, which are really not at issue here.

"Performance's documents exaggerate and misrepresent the facts, and make little attempt to address the legal issues that are being raised," Miller wrote.

Miller is hearing a lawsuit filed by the coal company seeking to modify the latest U.S. Mine Safety and Health Administration order outlining its Upper Big Branch investigation procedures.

Massey has complained that MSHA won't allow the company to take its own photographs, gather its own physical evidence and conduct its own underground mapping of conditions in the mine after the April 5 explosion.

In challenging MSHA, Massey has issued news releases to promote its lawsuit and hired a team of consultants -- including Bush administration MSHA chief Dave Lauriski -- to help it argue against the agency and come up with the company's own theories of what caused the disaster.

Massey has tried to point fingers at MSHA, questioning the agency's ventilation requirements at Upper Big Branch and criticizing the Obama administration for not being more open in the investigation and with details of its own inspectors' actions at the mine prior to the disaster.

"For an accident as serious as UBB, the more information that can be gathered during the investigation, the better," Shane Harvey, Massey's general counsel, said earlier this month. "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."

Twenty-nine miners died in the April 5 explosion, which mine safety experts have said was likely caused by the ignition of methane gas and was made far worse -- blasting through 2 1/2 miles of mine tunnels -- by the buildup of highly explosive coal dust.

The disaster is the focus of multiple civil investigations, a congressional inquiry, and prompted federal prosecutors to begin their own examination, looking for possible criminal wrongdoing related to hundreds of Upper Big Branch safety violations dating back more than four years.

Over the past few months, nonunion Massey has engaged in an aggressive public relations campaign aimed at MSHA. Joe Main, the United Mine Workers' union's longtime safety director, currently runs MSHA. The Obama administration repeatedly has blasted Massey as a scofflaw that puts profits ahead of worker safety.

Massey had argued that its lawsuit over the MSHA investigation deserved a speedy hearing because the company is suffering "irreparable harm" every day the inquiry proceeds under the federal government's rules.

Miller disagreed, siding with MSHA lawyers who argued that, "the circumstances of this case, the importance of the accident investigation, and the ability of MSHA to control that investigation, present no continuing harm or hardship to the mine.

"Indeed, [MSHA] has demonstrated that the order is in place to meet its mandate to conduct an investigation in a manner that supports its paramount concern, i.e., the safety of those entering the mine," Miller wrote. "Performance, on the other hand, makes little to no mention of safety for persons conducting the investigation or the extreme care that is necessary in such circumstances.

"The only harm suffered by Performance is its inability to use the protocols it wishes to use during the investigation," Miller added. "This is not the kind of harm that warrants an expedited hearing."

Miller complained that Massey's lawyers -- including high-profile Washington, D.C., criminal defense attorney Robert Luskin -- "continue to file volumes of documents that require a great deal of time to read and to respond to, while at the same time they continue to avoid addressing the real issues as directed by the court."

Miller said a full hearing on the Massey lawsuit will not focus on modifying MSHA's investigation procedures to the company's liking, but only on whether the order outlining the procedure is unreasonable and should, therefore, be thrown out altogether.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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