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Families' lawyer criticizes Massey UBB blast theory

CHARLESTON, W.Va. -- A lawyer for families of two of the miners who died in the Upper Big Branch Mine Disaster harshly criticized Massey Energy on Friday for suggesting the explosion was caused by a natural event the company could not control.

Charleston lawyer Tim Bailey said Massey's media blitz a day earlier was a "shameful attempt to circumvent to official investigative process" and that the company was "polluting the process" with incomplete information.

Bailey represents the families of Adam Morgan and Joe Marcum, two of the 29 miners who died in the April 5 explosion at Massey's Upper Big Branch Mine near Montcoal in Raleigh County.

"If Massey has done nothing wrong and is confident of that, they should allow the process to fully investigate the matter and let the full findings stand for themselves," Bailey said. "However, in that Massey is apparently bent on providing information piecemeal, then we would respectfully request they likewise pass on to the public and their investors unfavorable findings and information as any is uncovered in the investigation as well."

On Thursday, Massey held a news conference to put forth its theory that the disaster may have been caused by "a sudden inundation of unusually high levels of methane gas," probably released from a crack in the floor near the mine's longwall machine.

But the company based that theory, at least in part, on data showing a doubling of the mine's methane liberation rate more than five hours after the explosion.

Massey had previously said pre-shift safety examinations immediately prior to the explosion showed no methane problems, and Thursday's news release did not include any data for immediately before the blast. Federal and state investigators dismissed Massey's theory, saying the huge jump in methane after the explosion would be expected, and was likely caused by damaged ventilation controls or blown-out seals that allowed the mine's natural methane to be more readily released.

Davitt McAteer, Gov. Joe Manchin's special investigator, is looking into what Massey did -- if anything -- to prevent a recurrence of previous methane "outbursts" from the Upper Big Branch mine floor in 2003 and 2004. McAteer is also investigating what actions federal and state regulators took after those previous incidents.

Twenty-nine miners died in the April 5 explosion, making it the worst U.S. coal-mining disaster in 40 years. The disaster is the focus of multiple civil investigations, a congressional probe, 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.

On Friday, Massey issued a new statement to emphasize that it did not use the specific phrase "act of God" to describe its theory of the disaster's cause.

Legally, an "act of God" is an event outside of human control for which no one can be held responsible.

During Thursday's news conference, one reporter asked Massey general counsel Shane Harvey, "Do you think this data and this crack ... does it indicate that a natural event beyond the control of the company could have caused this event?"

Harvey responded, "It's a possibility at this stage."

Speaking to the National Press Club later Thursday, Massey CEO Don Blankenship said he would not promise to take steps that would ensure such an explosion never happens again.

"I'm a realist," Blankenship said. "The politicians will tell you we're going to do something so this never happens again. You won't hear that from me because I believe that the physics of natural law and God trump whatever Man tries to do."

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


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