Blankenship

JULIAN – Mining regulators and Massey Energy owners blame each other for any ventilation flaws that contributed to 29 deaths at Upper Big Branch mine.

On April 26, Massey director Stanley Suboleski said the U.S. Mine Safety and Health Administration (MSHA) required changes that significantly reduced the volume of fresh air to the area that exploded on April 5.

"It is important to note that the longwall at Upper Big Branch was not operating with the same ventilation system that it began with in September 2009," Suboleski said.

"Our engineers resisted making the changes, in one instance to the point of shutting down production for two days," he said.

On April 27, MSHA public affairs director Amy Louviere replied that Massey had two choices, to repair the condition or revise the ventilation plan.

"In January, MSHA issued unwarrantable failure orders because the system in place could not be effectively maintained by the operator to ventilate the mine," Louviere wrote.

"Due to adverse mining conditions (floor heaving, ribs falling in and water accumulating), the operator elected to revise the plan."

She wrote that investigators would thoroughly examine the ventilation plan and changes the agency required, "in order to determine the volume of air flow."

The same day, Massey issued a press release contradicting Louviere twice.

"MSHA's statement that the mine operator had the option to repair mining conditions is inaccurate," it stated.

"In fact, MSHA rejected the company's proposed plan to rectify mine conditions and instead required the ventilation change," it stated.

"MSHA also inaccurately stated that the required ventilation change was made after two orders were written in January," it stated.

"In fact, the two orders written on January 11 were abated within minutes and no plan changes were required or requested by MSHA at that time," it stated.

This adversarial attitude did not originate when the mine exploded, nor does it persist only between MSHA and Massey.

From 2006 to 2008, MSHA violation assessments rose from 135,718 to 198,700, and penalties soared from $35 million to $194 million.

Operators reacted by contesting more penalties, sending about 4,000 safety disputes into administrative proceedings every month.

From 2006 to 2008, penalty contests multiplied from $12 million to $134 million.

Massey contested portions of the January orders, according to its press release.

Massey urged reform of the contest system in another April 27 release.

"Currently, whether a violation is a fine of several thousand dollars or several tens of thousands of dollars depends on the subjective judgment of the inspector," it stated.

The agency abandoned a contest system that worked well for 30 years, it stated.

"Without the contest system that was in place previously, and the due process checks that it provided, MSHA becomes both policeman and judge," it stated.

Massey directors have mobilized an ardent defense of their safety record, and at one point Labor Secretary Hilda Solis joined their side.

She said on April 13 that from last October to December, Massey reduced violations at Upper Big Branch by 65 percent.

Massey attributed the improvement to its assignment of two full time safety professionals in the mine.

The mine hadn't lost time to an accident all year prior to the explosion, according to the release, and inspectors on a March 31 visit declared it in good condition.

Massey also announced it fired eight miners for violations MSHA found in surprise inspections at three other Massey mines.

Massey suspended three other miners, including a foreman who then quit.

As Massey confronts MSHA, it also confronts a shareholder lawsuit that the Motley Rice firm of Mount Pleasant, S.C. revived in Charleston.

For Manville Personal Injury Trust, Joseph Rice alleged in 2007 that Massey's neglect of safety breached its fiduciary duties.

Massey settled in 2008, pledging to strengthen its safety committee, add compliance oversight positions, and enhance reporting mechanisms.

Circuit Judge James Stucky approved the settlement.

Eleven days after the explosion, Manville Trust asked Stucky to hold Massey directors in civil contempt for failing to honor the settlement.

Andrew MacQueen of Charleston, in association with Motley Rice, wrote that "the surge in mine safety violations at Upper Big Branch raise serious doubts as to the board's good faith compliance with the order."

For evidence of the surge, he submitted an affidavit quoting ABC News, Bloomberg News, Charleston Gazette, Associated Press and National Public Radio.

He quoted a New York Times interview with anonymous miners.

Thomas Flaherty of Charleston represents Massey chairman Don Blankenship and director Baxter Phillips Jr.

Ronald Rolfe and Julie North of New York represent other directors.

The West Virginia Record is owned by the U.S. Chamber of Commerce.

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