According to the Charleston Gazette, Scott Howard filed documentation in the US District Court in eastern Kentucky late last week claiming the agency has a "plain legal duty to promulgate a respirable dust regulation that will eliminate respiratory illnesses caused by work in coal mines" and urging it to toughen the dust limits in place as an emergency temporary standard, or ETS.
While MSHA did not respond to a request by International Longwall News for comment, it did tell the Gazette that its legal team is reviewing the lawsuit and pointed out that it has 60 days to respond.
A 1969 federal regulation set underground exposure limits at 2.0 milligrams per cubic metre. Howard highlighted in his lawsuit that NIOSH has recommended this level be lowered to 1.0mg/cu.m for more than a decade, the news outlet said, adding that several federal efforts to tighten rules have not come to fruition.
Breathing coal dust has been linked to black lung, also known as coal workers' pneumoconiosis, and has received considerable media attention recently due to its re-emergence as an issue in certain regions of the US.
Almost 2300 West Virginia miners died of black lung between 1993 and 2002, and the state topped the nation with the highest age-adjusted black lung death rate across the nation during that same timeframe, according to National Institute for Occupational Safety and Health statistics.
In related legal news, another Kentucky miner has filed suit against his employer in Letcher County Circuit Court for "emotional distress" suffered after the company disciplined him for a videotape made underground that illustrated safety problems.
According to the Associated Press, Charles Scott Howard said he was reprimanded for making the tape at Cumberland River Coal’s Band Mill mine and then showing the footage to federal mine inspectors; he is seeking financial damages.
Cumberland River Coal is owned by Arch Coal, which has made no public statement via release but told one regional newspaper that the company disagrees with Howard's allegations.
“However, we can not comment on the details of active litigation," spokesperson Kim Link told the West Virginia Gazette.
Howard's videotape featured seals at the operation that had large cracks with water seeping through, footage of which he showed at a public hearing in Lexington in 2007.
Following the presentation, federal inspectors visited the mine and issued citations, according to the Associated Press. However, the mine took issue with having video equipment underground, a violation of company policy, and issued a written warning to the worker.
His lawyer, Tony Oppegard, told the news service that companies should not be permitted to punish miners for documenting unsafe conditions.
“When a company disciplines a miner for making a safety complaint, it has a chilling effect," he said, adding that they wish to have Howard's record made clean and want the mine's management to be trained on workers' rights.
