The Register-Herald, Beckley, West Virginia

Local News

June 22, 2010

Massey sues MSHA over dust scrubbers in mines

BECKLEY — Insisting its legal move isn’t retaliation against the Mine Safety and Health Administration over its inquiry into the fatal Upper Big Branch explosion, Massey Energy filed a federal lawsuit Tuesday in hopes of regaining some control over how mines are ventilated.

In a telephone news conference call, the general counsel for the Richmond, Va., firm, also said Massey isn’t concerned “at this time” over potential criminal charges once the federal and state investigations in the April 5 blast that left 29 workers dead are finalized.

Shane Harvey, also a vice president of the company, vowed that Massey would deal with any wrongdoing if it surfaces in its own separate investigation.

“We know there are investigations,” Harvey said. “We don’t know what the status of those investigations are. We’ve got our own investigation.

“If we find criminal conduct, we will take care of it swiftly ourselves. We are concerned that we conduct a good investigation but what’s going on in the investigation right now, we’re just not sure. We’re not privy to it.”

Harvey told reporters the firm has engaged in “some serious disagreement with MSHA” over ventilation plans.

But when such disputes arise, the attorney said, there is no recourse under the federal coal act for a company to counter MSHA, and this is tantamount to a 5th Amendment guarantee of due process.

Harvey twice denied suggestions that the lawsuit, filed in a federal district court in the nation’s capital specifically over the denial by MSHA over the use of scrubbers, was inspired by the agency’s planned investigation of the Raleigh County coal mine explosion, the worst mining disaster in four decades.

He pointed out the suit failed to mention either the Massey subsidiary that operates UBB, Performance Coal Co., or that specific operation in the community of Montcoal.

“I think UBB brought more focus to this plan approval problem, but it’s not an effort to fight back because we’re being investigated, absolutely not,” he said.

“This is important to the safety of our coal miners.”

MSHA is disallowing the use of scrubbers attached to continuous mining machines with a capacity to suck more than 90 percent of the dust from the air in space where miners are assigned to work, Harvey said.

“However, about half of the scrubbers are turned off because MSHA won’t approve them,” he said.

Twice, he told reporters, Massey called on MSHA official Joe Main seeking a go-ahead to use the devices but the firm still hasn’t received a response.

Besides taking legal action against the agency, Harvey said Massey is seeking some relief from the governors of West Virginia, Kentucky, Illinois and Virginia.

The suit identifies six Massey operations as plaintiffs:

Elk Run Coal Co., located in Sylvester; Independence Coal Co. Inc., Gordon; Mammoth Coal Co., Mammoth; Martin County Coal Corp., Inez, Ky.; Spartan Mining Co., Julian; and White Buck Coal Co., Livesay.

Besides MSHA itself, the suit named as co-defendants the U.S. Department of Labor; MSHA administrator Kevin Stricklin; Robert Hardin, MSHA’s District 4 manager; and Norman Page, the agency’s District 6 chief.

“This complaint is not focused on UBB,” Harvey said.

“This complaint is not specific about the UBB incident. It is more general in nature. It’s broader in terms of the relief it seeks.”

Besides the scrubber issues, Massey argues in its lawsuit it has the right under the 5th Amendment and federal mine law to design and implement blowing ventilation systems, ventilate the gob areas without artificial ventilation controls that limit air flow across inaccessible mined out areas and make a mine less safe for miners.

Massey also says it is entitled to evaluate the effectiveness of bleeder entries that don’t require examiners being sent to potentially hazardous areas, unless MSHA can show this would impair the health or safety of miners.

The suit also seeks a constitutional right to a hearing on the merits of a ventilation plan given to MSHA for approval if the agency denies or “unreasonably delays” approval.

Harvey emphasized the company isn’t blaming MSHA for the UBB explosion, although the two were at loggerheads over a ventilation system at the installation before the blast occurred. Last month, at a news conference in Charleston, a company official said MSHA had ordered a change in the UBB ventilation system and Massey disagreed with the proposed switch.

Scrubbers have been used effectively as far back as the 1980s, the attorney said.

“They’re well proven technology,” he said. “We’ve been allowed to use them in the past.”

— E-mail:

Text Only
Local News
  • Concord names Dr. Boggess as new president

    The Concord University Board of Governors has selected Dr. Kendra Boggess as the University’s 12th president, contingent upon approval by the West Virginia Higher Education Policy Commission.

    April 23, 2014

  • fff Experts help growing entrepreneurs

    For farmers like the Yateses, there’s money on the table. They got to learn what and where some of those resources are at the Farm, Food, Finance seminar held at the Sandstone Visitor Center on Tuesday.

    April 23, 2014 1 Photo

  • Trucking association asks drivers to put down phones and drive safely

    As part of National Distracted Driving Month, the West Virginia Trucking Association is asking fellow drivers to put down the phone, according to a press release from the association.

    April 23, 2014

  • Rahall calls meeting on W.Va.’s drug problem

    U.S. Rep. Nick Rahall says he has arranged a roundtable discussion with federal and West Virginia officials on the state’s prescription drug abuse and trafficking problems.

    April 23, 2014

  • 042314 News APP Power.jpg Utility gets public input for project

    Construction on a $56 million transmission improvement project will begin in Fayette County come November, and representatives of Appalachian Power Company hosted a public workshop Tuesday at Midland Trail High School in order to gather community feedback before construction officially gets underway.

    April 23, 2014 1 Photo

  • 042314 News Burlington Circus Tix.jpg Burlington kids going to circus

    After a donation from a radio station, a group of local kids soon will get to see the wonders of the big top.

    April 23, 2014 1 Photo

  • Lewisburg takes initial step toward ‘Home Rule’

    While the state Department of Commerce touts the success of phase I of the Municipal Home Rule Pilot Program, a Greenbrier County city hopes to be included in phase II, which will continue until July 1, 2019.

    April 23, 2014

  • United Way to host ‘One Day Without Shoes’ walk

    Everyone is invited to take off their shoes for a walk around town April 29 to raise global awareness about child poverty.

    April 23, 2014

  • Women’s Resource Center to show free film for Sexual Assault Awareness Month

    In effort to bring awareness and prevention, the Women’s Resource Center will host a free showing of the 2012 movie “Bully.”

    April 23, 2014

  • Ask the WVU experts on Facebook

    From graduation to gardening, West Virginia University Extension Service experts will provide their advice to participants’ specific questions during a new, weekly, one-hour question and answer session through its Facebook page.

    April 23, 2014