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Suit by respirator maker blames black lung on Massey

CHARLESTON, W.Va. -- Lawyers for one of the nation's largest makers of respirators have opened a new legal front in a longstanding dispute over black lung disease: a suit seeking to hold the former Massey Energy responsible for illnesses that miners have blamed on allegedly faulty breathing devices.

Attorneys for Mine Safety Appliances, or MSA, filed the suit Wednesday against Massey's new owner, Alpha Natural Resources, in Mingo Circuit Court. They also named former Massey CEO Don Blankenship as a defendant.

Basically, the complaint alleges that Massey officials for years did not comply with federal regulations that require mine operators to maintain proper ventilation and limit miners' exposure to coal dust that causes deadly black lung disease.

MSA lawyers filed the complaint to make Alpha a third-party defendant in an existing suit filed by one-time Massey foreman Dusty Dotson, who developed lung disease after working for years in underground coal mines.

The suit by Dotson against MSA is one of hundreds of such cases filed in the coalfields against manufacturers of respirators such as MSA and 3M Corp. that miners allege were faulty and caused or contributed their black lung disease.

But MSA argues the blame really lies with Massey, citing repeated ventilation and dust-control violations at three different operations where Dotson worked, including the Aracoma Alma No. 1 Mine where two workers died in a January 2006 fire.

MSA is expected to file more suits in similar situations in response to allegations that its respirators were to blame for miners' contracting black lung.

"For years, our company has been the target of these lawsuits, and we think that target has to shift," said Mark Deasy, a spokesman for Cranberry Township, Pa.-based MSA. "You have to look at the root cause."

Officials from Alpha Natural Resources offered no immediate comment on the MSA complaint.

The case by MSA comes as the Obama administration works to finalize new regulations to toughen the legal limits for coal dust in underground mines, and amid new scientific studies that show miners continue to die from black lung, despite a 1969 federal law that set eliminating the disease as a national goal.

And in May, an independent investigation of the April 2010 disaster at Massey's Upper Big Branch Mine reported the "alarming finding" that 71 percent of the disaster victims had black lung.

"There's just no doubt in my mind that we have a problem here that we have to fix," Joe Main, assistant secretary of labor for the Mine Safety and Health Administration, said in a recent interview. "People are still getting black lung in this country."

Black lung, or coal workers' pneumoconiosis, is a collection of debilitating and potentially fatal ailments caused by breathing coal dust. In 1969, Congress made eliminating the disease a national priority, with a law that required coal operators to take steps to limit exposure. The law greatly reduced black lung among the nation's miners. Still, nearly 10,000 coal miners nationwide have died in the last decade from black lung.

More recently, scientists have found that black lung is on the rise again. Researchers have warned of a doubling of black lung rates since 1997, and of a rise in the disease among younger miners whose entire careers took place under the 1969 dust limits.

Under the law, mine operators are required to use elaborate ventilation systems and water sprays to control the buildup of coal dust to prevent black lung and protect against fires and explosions. Generally, mine operators are allowed to use respirators only to supplement proper ventilation and other controls, not as a substitute for such protections.

In part because of state laws limiting lawsuits directly against employers, miners with black lung have filed hundreds of suits against MSA and 3M Corp., alleging faulty respirators they used in the mines did not provide the protection promised by the manufacturers.

The new legal complaint filed by MSA involves the case of Dotson, who has worked for a variety of Massey operations since 1995. In January 2006, Dotson was a foreman at the Aracoma Mine when the deadly fired occurred. State inspectors cited Dotson personally for ventilation violations that played a major role in the deaths of miners Ellery Hatfield and Don Bragg.

Earlier this year, Dotson sued MSA, alleging that faulty respirators played a role in his developing serious lung disease.

But in its complaint, MSA noted more than 4,700 violations related to ventilation and coal dust at Massey's Aracoma Mine during the decade that Dotson worked there. The complaint noted dozens more violations at other Massey operations where Dotson was employed.

"If defendant Dotson is injured as he alleges, said injuries are the direct and proximate result of unlawfully hazardous working conditions to which defendant employers subjected plaintiff Dotson," the MSA complaint says.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.

 


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