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Morrisey seeks dismissal of mine safety reform suit

CHARLESTON, W.Va. -- Attorney General Patrick Morrisey wants the state Supreme Court to dismiss a new legal action over continuing delays in requiring West Virginia mine operators to install technology that would save workers from being crushed by underground mining equipment.

Morrisey says in a new court filing that the lawsuit did not comply with a state law that requires parties to provide notice to state officials prior to filing such actions.

The filing responds to a suit, filed by the public interest law firm Mountain State Justice on behalf of a coal miner and a miner's widow, alleging inaction by the state Board of Coal Mine Health and Safety and the state Office of Miners' Health, Safety and Training.

Elbert Lin, a top assistant to Morrisey, filed it on behalf of the mine safety board.

Lin argues that the board is currently pursuing a regulation to require coal companies to use "proximity detection" devices to prevent crushing and pinning injuries and deaths.

"The board respondents take mine safety seriously and have actively considered proximity detection technology," Lin wrote. "The board meets monthly and each time it has met since September of last year, it has discussed proximity detection technology and the potential to prevent fatalities caused by mobile equipment."

Back in September 2008, four top state mine inspectors drafted a memo recommending specific language that would have given mine operators a year to install this kind of safety technology. But the rule was never approved, and state officials resurrected the idea only after a Gazette story in August that detailed the previous recommendation and noted the state's inaction on it.

At meetings in September, October, November and December, though, mine safety board members remained split 3-3 on moving forward on a labor proposal to require proximity devices. At the December meeting, board members sent the matter to a subcommittee -- scheduled to meet today <co Thursday> -- for still more discussion.

Under state law, suits against state agencies can generally be filed only if state officials are given notice 30 days prior to the filing of the case. One exception is actions seeking court injunctions where "irreparable harm" would occur if the suit were delayed.

Lin argues that Mountain State Justice lawyers "have not even attempted to make such a showing" and that the board could act as soon as its next meeting, on Jan. 16, a week after the subcommittee meeting.

"Although they have styled their filing an 'emergency petition', they claim inaction has allegedly been occurring for more than twenty years ... and do not explain why they have only now filed suit."

Petitioners in the case are Marshall Justice, a safety committee member from United Mine Workers Local 1503 in Boone County, and Caitlin O'Dell, a Greenbrier County woman whose husband, Steven O'Dell, was killed when he was pinned by a battery-powered "scoop" in an Alpha Natural Resources mine on Nov. 30, 2012.

Their court petition says that Justice "fears for his life and safety, and the lives and safety of his coal miner friends and family" without implementation of proximity detection systems.

Since her husband's death, O'Dell has become a mine-safety advocate and attended a board meeting in October to urge adoption of a rule requiring proximity detection systems.

"Coal miners in West Virginia face preventable, debilitating injury or death on a daily basis, as the direct result of the Respondents' failure to comply with their statutory mandate to protect coal miners' health and safety," the court petition filed for Justice and O'Dell said. "These clear violations of law, combined with the extreme costs of inaction, warrant immediate relief. A delay of even months means another likely, unnecessary death and more, unnecessary, disabling injuries."

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


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