The Register-Herald, Beckley, West Virginia

June 22, 2010

Massey sues MSHA over dust scrubbers in mines

By Mannix Porterfield
Register-Herald Reporter

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.”

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