A judge said he would need at least 30 days to decide whether a Letcher County coal miner was wrongly disciplined in 2007 for videotaping underground safety problems and showing the footage to federal inspectors.
Judge T. Todd Hodgdon, an administrative law judge with the Federal Mine Safety and Health Review Commission (FMSHRC), made the pronouncement in the Letcher Circuit Courtroom in Whitesburg last week after hearing testimony for two days in the trial of a discrimination complaint filed against Appalachia, Va.-based Cumberland River Coal Co. by Charles Scott Howard of Roxana.
Howard originally filed the discrimination complaint with the federal Mine Safety and Health Administration (MSHA) in early August a written warning from the Cumberland River for potentially creating an unsafe work environment when he made a videotape of water pouring through faulty mine seals underground in April 2007.
A special investigator with MSHA believed that Cumberland River Coal violated Howard’s rights under the Federal Mine Safety & Health Act of 1977 and recommended that the case be accepted by MSHA for prosecution. Officials at Va., agreed with the investigator, but the case was later rejected by the U.S. Department of Labor Solicitor’s Office in Nashville. Howard then exercised his right to file his own complaint with the Federal Mine Safety & Health Review Commission, and on March 22, 2008 filed documents charging that Cumberland River Coal violated Section 105(c), or the "anti-discrimination" provision of the Mine Act.
Howard’s complaint said he was targeted by the Cumberland River Coal, a susidiary of St. Louis-based Arch Coal Inc., for speaking out about safety conditions and is asking that the warning be expunged from his personnel file and the company be fined for the alleged discrimination. Howard has also filed a lawsuit against Cumberland River Coal in Letcher Circuit Court in which he seeks damages against the company.
Howard shared the videotape at a public hearing conducted by MSHA in Lexington on July 12, 2007. MSHA organized the hearing to solicit comments on proposed new rules pertaining to mine seals. The tape showed leaks and cracks in several seals at Cumberland River Coal’s Band Mill II mine at Eolia in Letcher County, where Howard was working as a preshift examiner, or "fireboss."
Howard said he played the videotape at the public hearing to demonstrate the types of problems that can occur with seals. No audio was used in the presentation and neither Cumberland River Coal nor the Band Mill II mine were identified.
After seeing the video, federal inspectors went to the Band Mill II mine and issued citations. The company, in turn, presented Howard with a written reprimand for violating company policy against taking a video camera into the mine.
Cumberland River presented evidence at last week’s trial that it finished work on re-plastered the seals to prevent leaking near the end of May 2007. The company also said it had monitored the water levels behind the seals during the period that the seals were leaking.
Testimony from most of the 15 witnesses who testified in last week’s trial, including 11 company employees, dealt with Cumberland River’s "camera policy" instituted in August 2004 and the question of whether the policy was enforced uniformly.
Ronnie Biggerstaff of Sandlick, who was the safety manager for Arch-subsidiary Lone Mountain Processing at the time but had never worked for Cumberland River Coal, testified that he was at the July 1, 2007 public hearing in Lexington and saw Howard present the video. Biggerstaff said he knew the name "Scott Howard" and called his boss at Lone Mountain, Thurman Holcomb, to tell him about the video. According to testimony, Howard, former general manager at Cumberland River Coal, then forwarded news of Howard’s action to current Cumberland River general manager Gaither Frazier of Whitesburg.
John Scarbro, mine superintendent at Band Mill II, testified that he had been in a meeting with Frazier and other Cumberland River officials in Appalachia when Frazier took Holcomb’s call. Scarbro said he then drove back to Eolia about 30 minutes later and found that two MSHA inspectors had arrived and wanted to examine all of the seals in the mine.
Scarbro testified that during next 15 days federal and state inspectors spent 16 shifts at the mine examining seals. MSHA issued two citations to CRCC during that time regarding the seals. Scarbro admitted at trial that he was aggravated by the inspectors’ constant presence at the mine.
Scarbro gave Howard a written warning on July 27, 2007. It stated that Howard had "potentially created an unsafe work environment at the Band Mill II mine by taking a non-permissible video camera underground. This action is not only an unsafe mining practice but it is a violation of company policy to take photos or videotape any active sites on company property without the prior written approval of the general manager."
Evidence was introduced in the trial showing that numerous Cumberland River Coal employees had taken photos on company property without prior written authorization, including Scarbro.
Scarbro testified that he had taken photos on several occasions without written approval, including three photos he said he took beyond the last open crosscut of coal underground with a non-permissible camera. Scarbro admitted during his testimony that it was a violation of the Mine Act to take photos beyond the last open crosscut and that he had created a hazardous condition by doing so.
Scarbro also testifed that nonpermissible equipment was not needed where Howard took the video of the mine seals, in the intake entry. He also testified that there is no such thing as a "permissible camera." (Permissible means "intrinsically safe" or "explosion proof.")
Howard’s attorneys, mine safety specialist Tony Oppegard of Lexington and Wes Addington of the Appalachian Citizens Law Center in Whitesburg, introduced into evidence a number of nonsafety related photos that had been taken by Cumberland River employees on company property without permission, including photos of black bears, mallards, Canadian Geese, and a dog in a mantrip. They also introduced into evidence photos of school children on a tour of company property, who were standing by mining equipment although they were not wearing any personal protective equipment such as hard hats, steel-toed boots, and safety glasses.
Two other members of Cumberland River management, Danny Webb, the superintendent of the Blue Ridge strip mine and Keith Pinson, the superintendent at CRCC’s prep plant, testified that they had taken photographs between four and 50 times on company property without having written authorization to do so.
All of the Cumberland River employees who admitted taking photos without written authorization said they had verbal authorization. The company policy, however, requires written permission.
Testimony also revealed that the decision to discipline Howard also involved corporate representatives from Arch Coal in St. Louis — Bob Shanks, Arch’s director of eastern operations, and Jenny Herner, the assistant general counsel for Arch.
Oppegard and Addington believe it will take as long as four months before Judge Hodgdon renders his opinion, but feel confident they have proven that Howard was disciplined because of the number of inspectors who visited the mine after Howard’s video was shown.
"We believe we have proved that Cumberland River Coal Co.’s camera policy was not uniformly enforced and that the company singled out Scott for discipline because he showed the mine seals video to the MSHA panel," said Oppegard. "Therefore, we are hopeful that the administrative law judge will view the evidence the same way."
Oppegard also praised the bravery exhibited by Howard in filing the discrimination complaint against the company for which he continues to work.
"It takes a lot of guts for a coal miner to stand up for safety in eastern Kentucky, and Scott has shown great courage in doing so for many years," said Oppegard. "He is a thorn in the company’s side because he stands up and fights for safety. The company is afraid that Scott’s activism will encourage other miners to assert their safety rights. But if the company was smart it would encourage miners to take an active role in protecting their own safety."
Oppegard also represents the widow of a Letcher County miner who is suing Cumberland River Coal in connection with the death of her husband earlier this year.
Susie Sturgill of Big Cowan filed suit after her husband was killed when the rock truck he was driving went over a highwall at Cumberland River’s Blue Ridge strip mine on January 8.
Cumberland River Coal Co. is being represented in the case by Tim Biddle and Willa Perlmutter, attorneys with the Washington, D.C. firm of Crowell & Moring. They have declined to comment on the trial.