Massey sues MSHA over scrubber rules

By Kelly Holleran | Jun 24, 2010


WASHINGTON, D.C. -- Massey Energy, the owner of the Montcoal mine where 29 workers died in an April 5 explosion, filed a federal lawsuit against the Mine Safety and Health Administration and three of its officials Tuesday, alleging the agency will not allow Massey to implement ventilation plans that would improve the safety of its mines.

In its complaint, Massey argues its Fifth Amendment constitutional rights to due process have been violated under a Mine Act that does not allow the coal company to dispute MSHA's ventilation plan requirements.

At the center of Massey's argument lies MSHA's refusal to allow Massey miners to use scrubbers attached to mining equipment at coal mines.

Massey contends the scrubbers are an essential piece of machinery utilized to protect the health of miners by removing harmful coal dust from the air. The inhalation of coal dust can lead to black lung disease.

"Scrubbers have long been used by the Plaintiffs at their mines to reduce respirable dust exposures and help with the dilution of methane and are fully approved for use under MSHA's regulations," the suit filed in U.S. District Court in Washington, D.C., by six Massey subsidiaries states. "Scrubbers have been shown to be extremely effective at removing respirable coal dust from the mine atmosphere, and thus reducing miners' exposure to respirable coal dust, overexposures to which have been shown to cause Black Lung Disease."

Specifically, MSHA has not allowed Massey to use the scrubbers at 14 mine sites throughout West Virginia and Kentucky, according to the complaint.

"In no such circumstance at any of these mines have the Defendants provided or articulated a rational, non-arbitrary reason for denying the Plaintiffs the right to use scrubbers in light of the conditions and mining systems at their affected mines," the complaint says.

Kevin Stricklin, MSHA's administrator for coal-mine safety and health and a co-defendant in the suit, has previously said he believes Massey wanted to use the scrubbers to allow its production rates to increase.

By utilizing the scrubbers, miners can work uninterrupted, which allows them to mine more coal, according to a Wall Street Journal article.

But Massey contends it only wants to provide a safe work environment for its employees. However, as a result of the Mine Act and MSHA's denial of its ventilation plan, the coal company must choose between two unfavorable decisions.

"This has left the Plaintiffs with having to choose between refusing to implement the Defendants' demands, in which case they cannot operate and their employees must be out of work, or implementing the Defendants' demands and obtaining approval of ventilation plans that are less protective of the safety and health of their miners," the suit states.

Massey claims it and other operators should be allowed to resolve such disputes under a resolution procedure. However, such a procedure does not exist under the Mine Act.

Instead, MSHA has the power to refuse to approve a ventilation plan proposed by an operator such as Massey, but the reverse does not hold true. Operators have no recourse if MSHA fails to approve a plan consistent with mining engineering and safety and health principles.

"MSHA is aware of its apparently vast authority in this area, and has leveraged it through a pattern of economic arm twisting and regulatory coercion effectively to compel operators' acceptance of MSHA-required changes to operators' ventilation plans that the operators themselves actually oppose, as the price of not being put out of business for want of an MSHA-approved plan," Massey's suit states.

In its complaint, Massey asks the court to declare that MSHA has no authority under the Mine Act to dictate ventilation plans for mines; that a coal operator has a constitutional right to a hearing on a ventilation plan of which MSHA disapproves; and that coal operators have a right to use scrubbers unless MSHA can provide "objective, verifiable, and reviewable information" that their use would lessen miner health or safety.

The lawsuit does not mark the first time Massey has raised its concerns over the issue. In Congressional testimony, in two letters to Joseph Main, the assistant secretary of labor for mine safety and health, and in letters to varying governors, Don Blankenship, Massey's chairman and CEO, has voiced his worries.

In a news release, Blankenship says he hopes the outcome of the lawsuit provides a safer work environment for coal miners.

"We hope the principal beneficiary will be miners, who will have cleaner air, safer mines and more secure jobs," he said.

Timothy M. Biddle, Timothy C. Means and Daniel W. Wolff of Crowell and Moring in Washington, D.C., will be representing Massey.

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