The disaster at Upper Big Branch, and its possible causes, has dominated mining safety discussions in the past few months with the Mine Safety and Health Administration (MSHA) coming under heavy criticism for its role in the tragedy. International Mining reported on the UBB accident, and its possible causes, in its June Leader. Brushing aside objections from Massey, and the recommendations from a 2004 MSHA report, the federal agency forced changes in UBB’s ventilation system which, Massey believes, led to the accident. The recent controversy over MSHA staffer Stephen Gigliotti brought even more pressure to bear upon the federal agency, resulting in calls for an independent, open, UBB investigation which, along with a leaked MSHA report, appears to have been the last straw for Massey who have sued the MSHA 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 US 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 US 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.
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, is particularly troubling according to Massey. 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 www.masseyubb.com