Whitesburg KY
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Partly cloudy

Miner sues employer

A Letcher County coal miner and safety activist has filed a lawsuit in Letcher

Circuit Court against Cumberland River Coal Company (CRCC), alleging the company laid him off in May 2009 because he made safety complaints to federal and state mine safety enforcement agencies.

Charles Scott Howard of Roxana filed the lawsuit on Monday. Howard worked on the day shift construction crew at CRCC’s Band Mill No. 2 mine at the time of the layoff. He is seeking compensatory damages for the emotional distress he says he suffered after being laid off, as well as punitive damages against CRCC. Howard seeks a jury trial.

A companion lawsuit — alleging that Howard was laid off in violation of the Federal Mine Safety & Health Act of 1977 — was filed against CRCC by the U.S. Department of Labor last year. That lawsuit is scheduled to go to trial in Whitesburg on August 10.

The lawsuit filed this week charges that CRCC laid off 66 non-management employees on May 15, 2009, and that Howard was the 66th and final person laid off. He alleges the company went down the seniority list just far enough to lay him off, and did so because CRCC’s mine management “despised” him because of his prior safety activities.

A state law, KRS 352,660, makes it unlawful for a mine operator to discipline a miner for “ reporting or documenting or cooperating with regulatory agencies in their investigation of unsafe mining practices or conditions” or safety violations under Kentucky’s mine safety statute.

According to the lawsuit, a federal administrative law Judge previously ruled in August 2010 that Cumberland River Coal had unlawfully discriminated against Howard when it issued a written warning to Howard because he had shown a videotape of leaking mine seals at a public hearing in Lexington held by the federal Mine Safety & Health Administration (MSHA). Howard claims his showing of that videotape was also part of the reason that CRCC designated him for layoff.

Howard also alleges that he notified MSHA because the primary and secondary escape ways at the Band Mill No. 2 mine were obstructed and thus unsafe for travel in case of an emergency; and that he made complaints to MSHA because a batterycharging station was not being properly ventilated and because the air was traveling in the “wrong direction” on the “rehab” section of the mine. He also alleges that he made safety complaints to the Kentucky Office of Mine Safety & Licensing because a CRCC management employee had falsified a preshift examination report for hazardous conditions, and because a foreman had restarted the mine fan — after power to the mine was interrupted — in an “unsafe and unlawful manner”.

Howard is represented by mine safety attorneys Tony Oppegard of Lexington and Wes Addington of Whitesburg. In Howard’s previous litigation against CRCC, the company has been represented by the law firm of Crowell & Moring from Washington, D.C.

The filing of a lawsuit presents only one side of the case. CRCC will have 20 days in which to answer the allegations raised in Howard’s lawsuit.

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