Judge rules against coal company that disciplined miner who shot video

bestep@herald-leader.comAugust 25, 2010 

A coal company improperly disciplined a Letcher County miner who used a video camera to document leaking seals in an underground mine, an administrative law judge has ruled.

Charles Scott Howard played the video for officials at a meeting in Lexington in July 2007, as regulators considered new rules on mine seals in the wake of explosions that killed 17 men in Kentucky and West Virginia in 2006.

Mine seals are meant to block off water and deadly explosive methane gas in unused parts of mines. Inadequate seals were implicated in both blasts.

The reaction was swift after Howard showed the footage he had shot at the Cumberland River Coal Co. Band Mill No. 2 mine.

Federal inspectors went to the mine that day and ultimately cited alleged safety violations related to seals.

In short order, the company put a discipline letter in Howard's file.

The company claimed Howard had created an unsafe condition by taking a camera underground, and it said he had violated a company policy on taking photos.

However, that was just a pretext to discipline Howard because company managers were displeased that he had videotaped the seals, Administrative Law Judge T. Todd Hodgdon said in his ruling.

Howard's actions were protected by the federal mine-safety act, said Hodgdon, a judge with the Federal Mine Safety and Health Review Commission.

The judge said disciplining Howard could have made him or other miners apprehensive about documenting hazardous conditions.

Howard's attorney, Tony Oppegard, filed the complaint with the commission in early 2008, but it was decided only recently.

Hodgdon ordered Cumberland River, a division of Arch Coal, to expunge all references to the discipline letter from his file; reimburse Howard for costs associated with his complaint, including attorney fees; and post the decision at all its mining properties in Letcher County for 60 days. The company could appeal the decision.

A spokeswoman for Arch Coal declined to comment Tuesday on the judge's decision.

Howard, 50, said he was pleased by the ruling.

Coal miners should work hard and help their employers be profitable, but that profit can't come at the expense of safety, he said.

"You gotta stand up for your rights," he said. "To lose a life over ignorance or fear of spending a little money is uncalled for."

Howard has gained a reputation as a persistent, fearless mine-safety activist, filing several employment actions and pushing in Frankfort and Washington, D.C., for safety rules.

"He is the most safety-active coal miner in the United States. I've never heard of anyone like him," said Oppegard, a former employee of the federal and state mine-safety agencies.

These days, however, the 31-year mining veteran is recovering from a brain injury that he suffered in late July at a Cumberland River Coal mine in Virginia.

He was working alone, using a piece of equipment to clean a section of the mine, and said he has no memory of the accident.

It's possible he hit a water line that whipped back and struck him in the head, or that he banged his head against the low roof of the mine, he said.

The injury has affected his vision and balance and has left him feeling as though he is in a daze, but he is receiving physical therapy and getting better, Howard said.

It's not clear whether he will be able to go back to work in the mines, but he has made it back from serious injuries before, including a broken back.

"That's all you can do, is hope," he said.

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