WEST VIRGINIA RECORD

WASHINGTON – Mine safety regulators must defend claims that they dangerously interfere with ventilation plans, U.S. District Judge James Boasberg ruled on Aug. 18.

He denied a motion from the Mine Safety and Health Administration to dismiss a suit that former Massey Energy subsidiaries filed last year.

He found they sufficiently alleged that the agency's patterns and practices denied them due process in procedure and substance.

"Defendants complain that plaintiffs do not plead more specific facts about individual ventilation plans that they believe MSHA negotiated unlawfully," he wrote. "If plaintiffs sought relief from the court with respect to any of these individual ventilation plan disputes, the court could well find the lack of specificity in plaintiffs' complaint concerning.

"But plaintiffs notably seek no such relief; rather, they seek only a declaratory judgment that defendants' general handling of plaintiffs' ventilation plans denies them due process," he wrote.

Elk Run Coal Company and other Massey subsidiaries sued the agency last year, after an explosion at Upper Big Branch mine killed 29 men.

Massey directors claimed the agency rejected their ventilation plans at Upper Big Branch, and that they followed agency plans under threat of shutdown.

The suit alleged the agency left owners a choice between putting miners out of work or installing ventilation plans that were less protective of miners.

The agency moved to dismiss, claiming Massey should contest citations through its review commission.

Boasberg found the commission can review only plans the agency approved, and that the Act doesn't outline procedures for disputes prior to approval.

"As plaintiffs point out, they have not committed a violation of the Act at all, let alone received a citation for violating it," he wrote. "They will not, consequently, receive the citation that would allow them access to the commission and the hearing that they seek.

"Defendants argue that all plaintiffs need to do to receive a hearing is to ask for a citation; such technical violation of the Act would, according to them, trigger the commission's jurisdiction.

"Plaintiffs ask the court not to resolve individual plan disputes, but to answer broad constitutional questions about whether the commission's review process itself affords them the process they are due under the Fifth Amendment.

"The language of the statute does not prohibit plaintiffs from bringing these claims in this court; they are not claims of the type that Congress intended to be heard exclusively through the Mine Act's administrative process."

This June, Alpha Natural Resources acquired Massey Energy.