Federal judge freezes Massey suit against regulators

By Steve Korris | Oct 28, 2010

WASHINGTON – A federal judge has frozen all action in Massey Energy's suit seeking relief from federal mine regulators.

U.S. District Judge Richard Leon stayed proceedings on Oct. 27, though neither Massey subsidiary Elk Run Coal nor the Mine Safety and Health Administration asked him to do it.

Proceedings will resume after he resolves the agency's motion to dismiss Massey's claim that regulators prevent it from properly ventilating mines.

Leon's freeze followed a dismal joint report that Massey lawyer Daniel Wolff of Washington and Justice Department lawyer Christopher Hall filed on Oct. 21.

The report, summarizing a meeting on Oct. 7, showed the futility of trying to move forward with the motion to dismiss pending.

Wolff and Hall wrote that Massey claims the Mine Act of 1977 violates the U.S. Constitution, while the government contends that the court lacks jurisdiction.

They wrote that Massey wanted initial disclosures and discovery to proceed, while the government wanted to wait for a ruling on the motion.

They wrote that they didn't discuss schedules or experts.

They wrote that they didn't discuss a trial date or when to set a date.

"Defendants submit that trial likely would not be appropriate in this matter in any event, as judicial review likely would be limited to the administrative record prepared by the agency," they wrote.

They wrote that there was no realistic possibility of settling the case.

Wolff set forth a statement of his case, writing that the Mine Act provides no mechanism for resolving disputes over terms of a ventilation plan.

"Defendants have unreasonably refused to approve the plaintiff's ventilation plans in a number of circumstances on a variety of arbitrary grounds that improperly hinge on generic assumptions about underground coal mining conditions, and not the conditions at any of the plaintiff's specifically affected coal mines," he wrote.

Hall's statement of his case asserted that regulators have followed all requirements and policy in approving ventilation plans.

On Oct. 22, assistant attorney general Tony West followed with a brief in support of the motion to dismiss.

He wrote that Massey must identify with specificity any telephone calls and informal meetings in which the agency convinced it to abandon ventilation plan provisions.

He wrote that Massey alleged stonewalling but offered no specific instances.

"Defendants should not be put to the burden of litigating over such vague claims, and the court should not be put to the burden of trying to reach their merits," he wrote.

Massey sued the agency in June, two months after an explosion at Upper Big Branch mine killed 29 miners.

According to Massey directors, their engineers resisted the agency's ventilation plan at Upper Big Branch but adopted it under threat of shutdown.

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