MAC: Mines and Communities

US: Massey tries escaping penalties for killing employees

Published by MAC on 2010-06-26
Source: Reuters, ENS (2010-06-17)

It was the worst US mining disaster in more than 25 years. Twenty nine workers lost their lives in an explosion last April at a Massey coal operation in Appalachia. See:

http://www.minesandcommunities.org/article.php?a=10137

There's no doubt that the company was responsible - arguably, criminally so.

However, Massey has since tried to escape indictment by claiming that current US mine safety legislation has to show a "pattern" of corporate violations, before firm action can be taken against it.

Massey is the chief mining outfit to employ "mountain top removal" of US coal deposits.

In a further move to limit the destructive practice, a US government agency has now ruled that blanket authorisation for such mining can no longer be provided.

Instead, companies must undergo an individual permitting process for each project.

Massey "disappointed" by MSHA comments

Reuters

11 June 2010

NEW YORK - Coal miner Massey Energy Co criticized a U.S. mine safety official's comments on Thursday, saying the process of dealing with safety violations is biased against mining companies.

"We are disappointed in the comments by MSHA (U.S. Mine Safety and Health Administration)," it said in a statement.

"The agency has eliminated informal conferences designed to review citations; has criticized operators for filing appeals; and now complains that the appeals process should be stacked in its favor."

Massey, owner of the Upper Big Branch (UBB) mine in West Virginia where 29 miners were killed in an explosion on April 5, said safety citations are judgment calls "and even the most conscientious inspector can make the wrong judgment.

"Unfortunately...the current administration at MSHA clearly does not want its own conduct reviewed or questioned."

Massey took aim at comments by MSHA's Assistant Secretary Joe Main after an oral decision this week by MSHA Review Commission Judge David Barbour, who ruled Massey's Tiller No. 1 Mine in Virginia cannot be placed on a 'pattern of violations' status, which would lead to stricter regulation.

Main said the ruling made clear the need "to reform the broken 'pattern of violations' system." He noted Massey had committed 29 violations at Tiller, but the judge did not find a "pattern" because only 19 were significant and substantial.

"The pattern of violations system was designed to force persistent violators of safety rules to clean up their act," Main said. "But under the current 'pattern of violations' system, no mine has ever been successfully placed into 'pattern of violations' status."

"Even mine operators with serious safety problems can evade 'pattern of violations' status. The system is broken and we will fix it," Main said.

There was no immediate MSHA comment on Massey's statement.

Massey stock rose $2.22, or 7.78 percent, to close at $30.74 on the New York Stock Exchange on Thursday on a day when the DJ Industrial average rose 2.7 percent.

(Reporting by Steve James, editing by Leslie Gevirtz)


Army Corps of Engineers Suspends Nationwide Permit for Mountaintop Removal Mining

Environmental News Service (ENS)

17 June 2010

WASHINGTON, DC - The U.S. Army Corps of Engineers today suspended the use of a fast-track nationwide permit, Nationwide Permit 21, for mountaintop removal mining operations in the six states of the Appalachian region.

Now, proposed surface coal mining projects that involve discharges of dredged or fill material into waters of the United States will have to go through the individual permit process to obtain Department of the Army authorization under the Clean Water Act.

The individual permit evaluation procedure provides increased public involvement in the permit evaluation process, including an opportunity for public comment on individual projects.

Nationwide Permit 21 is used to authorize discharges of dredged or fill material into waters of the United States for surface coal mining activities.

The suspension is effective immediately in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia. Nationwide Permit 21 continues to be available in other regions of the country.

The suspension in Appalachia will remain in effect until the Corps takes further action on Nationwide Permit 21, or until the permit expires on March 18, 2012.

This announcement comes more than a year after a March 2009 U.S. District Court decision ruled these permits illegal.

The nationwide permit gives a blanket authorization to mountaintop removal coal mines to dump their mining waste in streams and waterways. The District Court ruled that this overly generalized permitting process could not guarantee compliance with the Clean Water Act and that mining companies must apply for individual permits in order to be able to fill streams with mining waste.

Earthjustice senior legislative counsel Joan Mulhern said, "Using nationwide permits to rubber stamp the destruction of streams across hundreds of miles of Appalachia is an abomination."

"We are relieved that the Army Corps of Engineers is finally taking this permit off its books, in a move that is long overdue, but what the Corps really needs to do is change the Bush administration policy that allows the dumping of mining waste in streams and waterways until they are destroyed and buried completely," said Mulhern.

On June 11, 2009, the U.S. Department of the Army, U.S. Department of the Interior and the U.S. Environmental Protection Agency signed a Memorandum of Understanding, with each agency agreeing to work together to reduce the adverse environmental impacts of surface coal mining activities in the Appalachian region.

As a part of the MOU, the Corps agreed to issue a public notice to seek comment on the proposed action to modify NWP 21 to preclude its use in the Appalachian region.

On July 15, 2009, a Federal Register notice was published soliciting public comment on the Corps' proposal to modify NWP 21. The notice also proposed to suspend NWP 21 in order to provide more immediate environmental protection while the longer-term process of modification is fully evaluated.

The Corps received approximately 23,000 comments during the comment period that concluded on October 26, 2009, of which 1,750 were substantive comments that the Corps says were nearly evenly divided for and against the proposed modification and suspension actions.

The Corps determined after a review and consideration of comments that continuing use of NWP 21 in this region may result in more than minimal impacts to aquatic resources.

"This joint Army Corps-Environmental Protection Agency rule wiped out 25 years of clean water protections," said Mulhern.

"For the first time, the Bush-era rule officially allowed industrial and mining waste to be dumped in streams, opening the door for more mountaintop removal mining companies to fill streams with the waste from blowing off the tops of mountains to mine coal," Mulhern said.

"This practice ravages habitats and harms communities. It is long past time for this rule to be overturned," she said. "We hope the Corps takes steps immediately to ensure that our streams and waterways are no longer used as dumping grounds for mining waste."

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