W.Va. Coal Symposium: Bad timing for Alpha

February 2, 2012 by Ken Ward Jr.

There’s a fair amount of coverage out there this morning from yesterday’s start of the West Virginia Coal Association’s annual symposium, being held over at the Charleston Civic Center. A few examples:

— Vicki Smith from the AP reported that MSHA officials say the nation’s coal mines have made huge strides in safety, pointing to a dramatic reduction in the number of accidents and injuries in the nation’s single largest district in southern West Virginia.

— We ran my story in the Gazette about a presentation in which former U.S. Attorney Bill Wilmoth, who defended one-time Massey security director Hughie Elbert Stover, advised coal industry officials to be much more cautious in agreeing to talk with federal investigators, now that prosecutors have begun stepping up criminal cases involving lying to those investigators.

— The State Journal’s Taylor Kuykendall posted stories about extended cut mining, and about MSHA’s views of post-UBB compliance around the industry.

I wandered over to the Civic Center for some of yesterday’s afternoon presentations, and was treated to a talk by our friend Tom Clarke, director of the West Virginia Department of Environmental Protection’s Division of Mining and Reclamation.

As WVDEP officials unfortunately do every year at this industry event, Tom played to his audience, trying to be funny with a couple of silly cracks about his fellow public servants at the U.S. Environmental Protection Agency. For example: “We’ve been getting along reasonably well with them, as long as we don’t make them work too hard.”

For some reason, Tom also was critical of efforts by U.S. EPA to incorporate certain portions of DEP mining permits into his agency’s Clean Water Act pollution discharge permits for mining operations. Why would that be such a bad thing? Well, Tom noted that if “performance standards” for things like toxic materials handling plans are made part of the Clean Water Act permits, it might allow citizen groups to bring lawsuits in federal court to actually have those provisions of the permits enforced.  Gosh, the last thing anybody would want is for citizens to actually get to play a meaningful role in the environmental regulatory process and do things that WVDEP has been unable or unwilling to do … things like, oh, I don’t know — forcing a major mining operator to spend hundreds of millions of dollars cleaning up its selenium pollution.

Tom spent a lot of time dissecting the recent U.S. EPA objection letter for the CONSOL of Kentucky Buffalo Mountain permit, and warning coal executives of all of the sorts of things EPA was questioning in that permit — kind of a cautionary tale for what other operators might be in store for from EPA in coming months. But I guess I must have missed the part where Tom explained exactly what his agency was doing to reduce the “pervasive and irreversible impacts” of mountaintop removal on the environment — let alone what WVDEP is doing about the increasingly clear links between living near mountaintop removal mining and having a greater risk of serious health problems like cancer and birth defects.

Don’t look for much discussion of those important issues at the symposium … but if you have time to drop by on Friday, you can catch not one, not two, not three, but four coal lobbyists in a panel discussion called “Obama’s No Job Zone.” And you can hear the lawyers from Bailey and Glasser talk about their taxpayer-funded lawsuit to help the coal industry try to put a stop to the Obama crackdown on mountaintop removal.

Today’s events should be more interesting, including presentations by MSHA chief Joe Main and especially this morning’s first speaker, Mark Schuerger of Alpha Natural Resources. His talk is titled, “Change is Upon Us, ” and it seems likely to include some discussion of Alpha’s “Running Right” programs and how his company is turning the page on the bad old days of workplace disasters and environmental messes under Massey Energy.

Unfortunately for Schuerger, at about the same time he’s speaking here in Charleston, an Alpha contractor named Raymond Dawson will be standing before U.S. District Judge Irene Berger down in Beckley, being sentenced after pleading guilty to lying to federal investigators about training practices at Alpha’s Cucumber Mine in McDowell County (a mine that Alpha owned prior to the Massey merger). As we previously reported:

Raymond C. Dawson, 57, of Raysal, pleaded guilty to a single felony count before U.S. District Judge Irene C. Berger in Beckley. Dawson faces a maximum penalty of five years in prison and a $250,000 fine. Sentencing is scheduled for Aug. 25.

Dawson had been certified by the U.S. Mine Safety and Health Administration to provide certain training to miners at the Cucumber operation, an underground mine operated by Alpha subsidiary Brooks Run Mining Co.

A Brooks Run contractor, Griffith Construction Co., was using Dawson to provide training to its miners.

Dawson admitted that on or about Nov. 3, 2008, he falsely told government investigators that he always gave miners the required training and kept them in training classes for the required amount of time.

According to court records, as recently as Oct. 18, 2008, Dawson had provided miners with incomplete training courses while meeting with the workers at his home. Dawson admitted to doing the same thing on at least two other instances during the period from August to October 2008.

Let’s not forget, the Cucumber Mine was the scene of a massive roof fall in January 2007 that killed two workers, James David Thomas and Pete Poindexter. MSHA investigators later found the miners died because the company ignored roof control requirements and did not train miners in proper roof control practices.

UPDATED:

Word just in from Beckley that Judge Berger sentenced Dawson to 6 months in prison. U.S. Attorney Booth Goodwin said”:

Keeping miners safe is and will continue to be a top priority of this office and we will continue to focus our resources on bringing to justice individuals who jeopardize that safety.

And MSHA chief Joe Main said:

Sentencing in this case serves as a sober reminder of the important role training plays in keeping the Nation’s miners safe and healthy.

9 Responses to “W.Va. Coal Symposium: Bad timing for Alpha”

  1. Roy Silver says:

    Ken,
    Do we need a thorough review of the role of contractors in the coal industry. It seems that many coal companies are subcontracting everything from the trucks that haul the coal, to the coal miners and security. What is the legal and moral responsibility of the contractor?

  2. Rich says:

    Ken
    Just another anti coal rant by you. Do something productive. Pro coal and anti coal people are all sick of your bais.

  3. Ralphieboy says:

    Rich, Ken is one of the few people in this state that report coal issues fairly and accurately without biased rhetoric and backs up all reporting with facts, studies and quotes. The truth is not always easy to swallow.

  4. BOUTTIME says:

    Ken, Thanks for another informative ‘tell it like it is’ article, however I found it a little odd that Bill Raney wasn’t mentioned in that pro coal powerhouse lineup, or did I just over look that.

  5. Pragmatic Realist says:

    Mr. Ward I don’t think of you as “pro-coal” or “anti-coal”. I see you as pro-life, pro-health, pro-“obeying the law”, and pro-“facing reality”.

    Frankly I don’t see how you manage to keep it up with such a slim return of hopeful developments.

  6. Ellen Smith says:

    Answer for Roy Silver: under the Mine Act, mine operators are responsible for contractors on their property. MSHA has the right to cite both the contractor and the operator for a violation. Here are case law summaries based on Courts of Appeal decisions from our legal digest, with the cites. This only applies to MSHA. I do not know the law re: EPA.

    — A mine operator’s challenge to citations it received for violations committed by an independent contractor hired to install an elevator shaft at the mine was rejected. The operator’s argument, that MSHA lacks the authority under the Mine Act to cite an owner-operator for violations committed by a contractor, was rejected. MSHA has the discretionary authority to cite an owner-operator, an independent contractor, or both for violations committed by the contractor. The operator’s argument, that MSHA abused its discretion in citing it because the contractor had complete control over the shaft-sinking project, also was rejected. The agency’s discretionary decision to cite the operator is “committed to agency discretion by law,” and is, therefore, unreviewable. Speed Mining Inc., No. 07-2090 (4th Cir. June 11, 2008), 15 MSHN 171, D-81 (June 23, 2008), affirming 29 FMSHRC 701 (Aug. 27, 2007), 14 MSHN 385 (Sept. 10, 2007) (ALJ Weisberger), rev. denied (Oct. 4, 2007).

    — The Review Commission generally lacks the authority to review MSHA’s enforcement decisions regarding whether to charge operators, their independent contractors, or both, for safety violations committed by the contractors. MSHA’s charging decisions are similar to decisions made by prosecutors in criminal cases, and nothing in the Mine Act “instructs the Secretary of Labor which of several jointly-liable operators to charge, any more than the Criminal Code tells a U.S. Attorney which of several co-conspirators to prosecute.” A commission decision, which overturned a decision by MSHA to cite the owner-operator of a mine, as well as the independent contractor, for the contractor’s safety violations, was reversed and the citations were reinstated. The commission’s and the operator’s position, that Sec. 113 of the Mine Act gives the commission express authority to review MSHA’s discretionary enforcement decisions and to formulate mine safety policy, was rejected. In a 1991 decision in Martin v. OSHRC, the U.S. Supreme Court held that, under a “split enforcement” structure, enforcement of the OSH Act is the sole responsibility of the Secretary of Labor. The Martin analysis applies to the Mine Act as well, and the commission has no “policymaking role.” The agency’s enforcement decisions may be reviewed for violations of constitutional protections and the commission “retains authority to adjudicate …… whether safety violations have in fact occurred.” Secretary of Labor v. Twentymile Coal Co., No. 05-1124 (D.C. Cir. July 7, 2006), 13 MSHN 351, D-116 (July 10, 2006), reversing 27 FMSHRC 260 (March 18, 2005), 12 MSHN 130, D-20 (April 4, 2005).

  7. Common Sense says:

    Roy, Ralphieboy, and BOUTTIME (nice link to the OVEC webpage, no bias there huh): First, Ralphieboy, you are correct, he does back up most of the articles he publishes with links to other websites, papers by WVU professors, etc. But have you actually read the papers, the info, the other “facts” that are published with an open mind?

    BOUTTIME, what facts would i start with here? This is just a “tell it like it is comment” then. Funny how when the facts line up to match your website that you link to in your oh so clever name that you are all in and for it. Well i have attached a website as well, check it out! You may learn something.

    The Coal Symposium is a great thing for the state of WV. It brings together regulators and industry folks for a shared learning of the issues in our state. I am glad to see this yearly event take place because it gives the operators that are running right a chance to accept safety awards and ENVIRONMENTAL AWARDS that they have worked so hard to achieve. Good Job Coal Industry, keep up the hard work!!

  8. onelump says:

    I am sure that all of Ken’s “friends” at the symposium were glad to see him. Most could have told you what would end up in the paper before the symposium started.
    Common Sense has hit the nail on the head! Actually take the time to read the references, the papers and look at the “peer reviewed” articles that are so often touted. One might find that there are a lot of things lacking in these articles by Ken, but bias isn’t one of them.

  9. Ken Ward Jr. says:

    onelump,

    You wrote:

    “One might find that there are a lot of things lacking in these articles by Ken, but bias isn’t one of them.”

    Please provide a couple specific examples of what you’re talking about.

    Thanks, Ken.

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