WEST VIRGINIA RECORD

WASHINGTON –- Mine Safety and Health Administration regulators force owners to place miners in jeopardy, Massey Energy alleges in federal court.

Owners who oppose MSHA ventilation and roof plans can't operate, Timothy Biddle of Washington wrote for Massey subsidiary Elk Run Coal on Sept. 21.

He urged District Judge Richard Leon not to dismiss a suit Elk Run Coal filed against the Department of Labor and its safety agency in June.

"MSHA's decisions are not always rational, much less in the best interest of the health and safety of plaintiff's miners," Biddle wrote. "Unfortunately, the Mine Act provides no recourse in the event of a disagreement, which is why most disagreements usually end quickly with MSHA getting its way.

"MSHA knows it has leverage: it is simply a matter of the operator submitting to MSHA's will or having its mine shut down. It is a coercive process because jobs are in the balance and coal sale contracts are at stake if an operator does not adopt or drop a plan provision as MSHA may demand."

In April after 29 men died in an explosion at Upper Big Branch mine, Massey directors said they resisted MSHA's ventilation plan but followed it under threat of shutdown.

Elk Run Coal sued the Department of Labor and MSHA in June, alleging they deprive mine owners of property and liberty interests without due process.

MSHA moved in August to dismiss, arguing Massey should challenge its actions before an independent review commission.

"If a district court determines that Congress has vested initial review of an action in an administrative body, it must dismiss the action for lack of subject matter jurisdiction," Christopher Hall of the Department of Justice wrote.

Only the review commission has authority to impose civil penalties, he wrote.

The commission can grant temporary relief to an operator pending review of most orders, he wrote.

"Consideration of such a claim would simply require the commission to review the negotiations between the operator and MSHA to determine whether each had satisfied its obligation to consult in good faith," he wrote.

Elk Run Coal didn't allege that MSHA denied its ventilation plans, he wrote.

In response, Biddle branded the motion as "a fantasy version of the Mine Act."

"MSHA asserts that, if they wanted to, plaintiffs could simply trigger commission review upon their own affirmative request," he wrote. "If it were only so."

He wrote that the Mine Act didn't authorize the review process Hall described.

He disputed Hall's claim that the process was well accepted, writing that it was akin to the cook saying the soup is delicious.

He wrote that the Mine Act is silent on what to do if MSHA acts arbitrarily.

"When MSHA does not deal with plaintiffs squarely, plaintiffs' mines are in jeopardy," he wrote. "... while MSHA may certainly exercise its police power to shut down a mine where legally justified, it may not do so without due process."

"That is what distinguishes the United States from totalitarian regimes."