The Register-Herald, Beckley, West Virginia

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September 1, 2010

MSHA seeking dismissal of Massey lawsuit

Agency says challenge of its power over mine ventilation plans filed in wrong place, fails to make valid claim

By Tim Huber Associated Press

CHARLESTON — The federal Mine Safety and Health Administration wants a judge to dismiss coal producer Massey Energy’s lawsuit challenging the agency’s power over mine ventilation plans.

MSHA contends that Massey filed its complaint in the wrong place and failed to make a valid claim.

Massey is required to appeal ventilation plan decisions to the Federal Mine Safety and Health Review Commission, not the courts, the agency said in a motion to dismiss the lawsuit in U.S. District Court for the District of Columbia. The lawsuit filed in June likewise fails to state any claims that merit court action.

“It appears that Plaintiffs have actively avoided making any detailed factual allegations for some reason. On that basis alone, this case should be dismissed,” MSHA said in its Aug. 24 motion.

It also said that any such claims, even if valid, fall outside the court’s jurisdiction.

Massey’s lawsuit seeks to limit the agency’s oversight of mine ventilation to merely reviewing plans for consistency with prudent engineering practices.

The Richmond, Va.-based company also wants a judgment saying federal mine safety law violates its right to due process. Massey contends there’s no way to appeal if there is a disagreement with MSHA over how a mine should be ventilated.

Coal mines rely on ventilation to remove explosive and toxic gases and coal dust. Massey has accused MSHA of ordering repeated changes that weakened ventilation at its Upper Big Branch mine before an explosion killed 29 miners there April 5.

The lawsuit doesn’t involve the Raleigh County mine. The subsidiaries that filed the suit operate mines in West Virginia and eastern Kentucky.

Massey filed the lawsuit amid growing conflict with MSHA following the Upper Big Branch explosion, the nation’s worst coal mining disaster in 40 years. The blast is the subject of ongoing civil and criminal investigations.

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