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Massey Energy Sues Federal Agency

Thursday, June 24th, 2010

Massey Energy Company announced it has sued the U.S. Mine Safety and Health Administration over its improper use of regulatory authority to control the design of ventilation systems and to limit the use of scrubbers in underground mines
“We hope the principal beneficiary will be miners, who will have cleaner air, safer mines and more secure jobs,” said Don Blankenship, Chairman and CEO of Massey.
The lawsuit was filed in the U.S. District Court in Washington, DC. It asks the court to declare that MSHA has violated Massey’s constitutional right to due process and to require MSHA to justify its actions whenever it demands changes in ventilation plans submitted by coal operators or limits the use of scrubbers.
Defendants are the U.S. Department of Labor; MSHA; Kevin Stricklin, Administrator for MSHA’s Division of Coal Mine Safety and Health; and Robert Hardman, District Manager of MSHA Coal District 4, which has headquarters in Mt. Hope, WV.
Ventilation plans for mines are critical in ensuring the safety and health of miners, who need to breath air as clean of coal dust, methane and other noxious fumes as possible. No standard ventilation plan can exist for all mines because each mine has its own particular geological and construction features. Therefore, to a large extent, each ventilation plan must be custom made.
Regarding ventilation plans, the suit makes the following points:
* MSHA has exceeded its regulatory authority to enforce mine safety and health laws by effectively dictating the ventilation plan for each mine. The law says only that MSHA must ensure such a plan is consistent with prudent mining engineering and safety and health practices. MSHA may not lawfully reject a plan simply because it has a preferred way to ventilate.
* MSHA indirectly forces mine operators to design a ventilation plan the way MSHA wants by refusing to approve the operator’s plan. Mining cannot start until a ventilation plan is approved by MSHA. Yet MSHA not only has no deadline to grant or deny such approval, there is no appeal if it is denied or forum for the operator to state its case.
* Coal miners and operators are “at the mercy of MSHA with respect to the implementation of their (ventilation) plans,” as the suit says, because MSHA is “free, over the mine operator’s objection, to do literally nothing” if it does not like a ventilation plan.
Though it requires coal operators to shape their ventilation plans to MSHA personnel’s own preferences, MSHA does not accept any responsibility for the effectiveness of those plans — or their ineffectiveness.
Furthermore, the lawsuit says, MSHA has established “a pattern and practice of refusing to allow the Plaintiffs’ mines to implement any number of sound practices” aimed at providing a steady, dependable source of clean air for miners at work.
“Particularly troubling” is MSHA’s refusal to allow the use of scrubbers, which are used on mining machines to reduce sharply the amount of coal dust in the air and to also help dilute methane in the area where miners are working.
MSHA has failed to provide any rational, non-arbitrary reason for denying the use of scrubbers. This refusal is potentially dangerous because scrubbers have been shown to be extremely effective at reducing the inhalation of coal dust, which can lead to black lung disease.
The lawsuit asks the court to declare that MSHA has no authority under the Mine Act to dictate ventilation plans for mines; that a coal operator has a constitutional right to a hearing on a ventilation plan of which MSHA disapproves; and that coal operators have a right to use scrubbers unless MSHA can provide “objective, verifiable, and reviewable information” that their use would lessen miner health or safety.
The lawsuit is not the first time Massey has raised these issues. Over the past few weeks, in Congressional testimony, in two detailed letters to Joseph Main, the Assistant Secretary of Labor for Mine Safety and Health, and in letters to the governors of coal states, Mr. Blankenship has raised these issues.
A copy of the lawsuit can be found on the Massey UBB website at
Massey Energy Company, headquartered in Richmond, Virginia, with operations in West Virginia, Kentucky and Virginia, is the largest coal producer in Central Appalachia and is included in the S&P 500 Index.

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