Federal mine safety regulators have taken unprecedented legal action in an attempt to shut down a Massey Energy-owned Pike County coal mine because of violations dating to 2008.
The Mine Safety and Health Administration and Department of Labor filed a complaint Wednesday in U.S. District Court in Pikeville asking that Freedom Energy Mining Co. and Sidney Coal Co., subsidiaries of Massey Energy of West Virginia, cease operations at Mine No. 1 in the central Pike County community of Sidney.
It would be the first time safety regulators have sought a judge's order to close a mine. MSHA is citing a "pattern of violations," an action permitted by the Mine Safety and Health Act of 1977. It is the most severe action the agency can take against a mine operator.
MSHA has considered similar legal action against at least one other mine in the past few months, and it will be looking at more, Department of Labor Solicitor General M. Patricia Smith said. "You can expect more of these on other mines," Smith said.
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She said MSHA inspectors have ordered the Pike County mine to close 55 times in the past year.
Labor Secretary Hilda Solis, in a memorandum filed with the complaint, said the mine has been visited 261 times since July 2008 and has been issued 1,952 citations and orders. Six roof falls have occurred since August 2010, and one in September could have been fatal if miners had not been withdrawn because of a power outage, Solis wrote.
"Freedom does not appear to follow basic safety rules when MSHA is not at the mine," Solis wrote. "If the court does not intervene, someone will be seriously injured or die."
An affidavit from an MSHA official, filed in U.S. District Court, says the mine's managers have a history of under-reporting injuries and accidents. An injury audit found that the company had failed to report a crushed finger, broken bones and a knee injury that required surgery, said James Poynter, MSHA's acting district manager in Pikeville.
Massey spokesman Jeff Gillenwater said the company learned of the complaint Wednesday.
"We are checking into this now," Gillenwater wrote via e-mail. "Regardless of what the complaint says, we are committed to running Freedom Energy and all our operations safely and will take whatever steps are necessary to ensure the safety of our miners."
He said the company idled all underground operations on Friday to conduct safety training and correct hazards.
The Freedom mine employs 132 people and operates six days a week. The Department of Labor asked the court to require that employees be paid if the mine is idled.
Kentucky Coal Association President Bill Bissett said in an e-mail that the association's member companies consider safety their No. 1 priority.
"By the federal government filing this legal action as inspections at this mine continue and Massey's appeals are in process, there is the appearance that the government's action is more connected to ending coal mining in Appalachia rather than working with mining companies to help make our mines safer," Bissett said.
The Department of Labor alleges that Sidney has failed to inspect and maintain "critical areas" of Mine No. 1, has failed to protect the roof and ribs of the mine from cave-ins, has failed to ventilate the mine of methane and other gases, has failed to prevent combustible coal-dust accumulation, and has failed to inspect and maintain electrical equipment to prevent fire.
The agency says violations since July 1, 2008, "constitute a continuing hazard to the health or safety of miners," and if no injunction is issued, miners risk injury or death.
A pattern of violations order can be issued by MSHA's safety review board, instead of the courts, but mine operators then have recourse. They can appeal violation orders and have 90 days to correct problems. At least one attempt has been made, but no mine has ever been put on pattern of violations standing.
A court order would eliminate some of that recourse. That's why the court action that circumvents the administrative action is a bold move, safety advocates said Wednesday.
Earlier this year, Lexington attorney and mine safety expert Tony Oppegard was part of a group that petitioned MSHA to tighten loopholes in its administrative pattern of violations rules. He said the pattern of violations rules were off MSHA's radar until the fatal methane explosion at Massey's Upper Big Branch mine in Beckley, W.Va.
"Why now? I would say because when 29 miners were killed in the Massey disaster. That sent shockwaves through MSHA and the mining industry," Oppegard said.
MSHA officials said they did not consider geography or ownership in targeting the Freedom mine but looked only at the number and severity of violations. The Mine Act of 1977, prompted by the 1976 Scotia disaster in Letcher County, was passed to end such large-scale fatalities.
"These types of horrific disasters were supposed to be a thing of the past," Oppegard said. "When it happened in 2010, it was this sense of disbelief, with the oversight that we have in the federal mining laws and the state mining laws."
The lawsuit will be a test case that puts industry officials "on notice," said Ellen Smith, the owner and managing editor of the Mine Safety and Health News. "It's the one thing that's always been vehemently opposed by industry," Smith said.