Lawsuit challenges MSHA’s removal of mine’s POV status

Triangle, VA — The United Mine Workers Association is suing the Mine Safety and Health Administration and its administrator, David Zatezalo, over the legality of the agency’s removal of a Sophia, WV, mine from Pattern of Violations status.

In a lawsuit filed Nov. 29 in the U.S. District Court for the Southern District of West Virginia, UMWA alleges that the removal violates the Administrative Procedure Act by “unlawfully ignoring the statutory and regulatory requirements for terminating a POV notice and replacing it with another process that was not created by Congress or otherwise properly promulgated.”

The Federal Mine Safety and Health Review Commission on Aug. 28 settled a case between MSHA and Pocahontas Coal Co. LLC, deciding to release Pocahontas’ Affinity Mine from POV status, under which it was placed in October 2013 after two fatal incidents.

The Federal Mine Safety and Health Act of 1977 establishes that MSHA may issue POV notices to mine operators who “demonstrate a disregard for the health and safety of miners through a pattern of significant violations.” Mines receiving a POV notice are issued withdrawal orders, meaning work must stop – at least temporarily – until the violation(s) are abated.

In September, Reps. Bobby Scott (D-VA) and Mark Takano (D-CA) wrote a letter to Zatezalo citing public mine inspection data showing Affinity Mine had not undergone final inspection for an absence of significant and substantial violations, as required by the act. Additionally, the congressmen noted that MSHA had issued 265 significant and substantial violations to the mine operator after the POV notice was issued on Oct. 24, 2013, through Sept. 9, when the data was accessed.

FMSHRC’s ruling included sharp dissent from then-Commissioner Robert F. Cohen, whose term expired Aug. 30. Cohen wrote that “approving the settlement only provides cover for an unlawful agreement by the current administration.”

UMWA maintains its position after questioning the decision at the time. In a Nov. 30 press release, Cecil Roberts, the organization’s president, calls MSHA’s actions “a direct threat to miners’ health and safety anywhere in the United States.”

“Mines that are not operated safely deserve the extra scrutiny they get under POV status, and management needs to prove that it can operate safely before that status is lifted,” Roberts said in the release. “But that is not what happened here. If the agency can flagrantly ignore the law and lift POV status at Affinity and get away with it, then it will do so again. We want to make sure that cannot happen.”

United Coal, the parent company of Pocahontas Coal, on Aug. 31 issued a press release outlining data showing Affinity Mine “has vastly improved its safety and regulatory compliance history” since 2013.