COVINGTON — A federal judge on Friday indicated that he would not dismiss federal safety regulators' unprecedented court action to close a Pike County mine operated by subsidiaries of Massey Energy.
Acknowledging "uncharted waters," U.S. District Judge Amul Thapar did not rule but said he intended to find in favor of the Department of Labor in Freedom Energy and Sidney Coal Co.'s motion to dismiss the case brought last month. A trial on regulators' motion for a preliminary injunction to close the mine is scheduled to start Jan. 4.
Government officials pleased with the news said they are closer to filing similar action against three other mines.
Though the section of the 1977 Mine Act in question has never been used before now, "this Department of Labor takes this tool very seriously," said Patricia Smith, the department's solicitor general, in a news conference after the hearing. Smith would not identify the three mines against which the department is preparing cases.
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Thapar asked the government to amend its complaint to consider that the Sidney Coal Co. mine is no longer producing coal and show how specific violations constitute a continuing hazard to 63 miners working to recover equipment over the next six months.
In court filings, Freedom Energy argued that because the Department of Labor hasn't placed the mine on "pattern of violations" standing through established administrative procedures, it is illegal to ask the courts to do so.
Massey attorneys argued that Congress, in describing a pattern of violations in two sections of the Mine Act, intended for the administrative procedure in one section to be exhausted before the court action described in the second section is used.
"The mining industry is heavily regulated, and virtually every mine in the United States is routinely issued citation or orders by MSHA alleging violations of mandatory health and safety standards," the company said in its motion to dismiss. "While all mines must take workplace safety and health seriously and could no doubt find room for improvement, the fact they are issued citations and orders is certainly not a basis for asking a federal court to shut them down."
The administrative action is proceeding alongside the court action. On Nov. 19, the Mine Safety and Health Administration, an agency of the Department of Labor, sent Sidney Coal operators a letter placing the mine on "potential pattern of violations." The company has 90 days to respond to that letter.
In court Friday, Thapar compared the two procedures to criminal cases. A prosecutor has discretion in whether to charge a criminal with a written complaint, or to present evidence to a grand jury to seek an indictment. He proposed that a preliminary injunction by the court, which doesn't permanently close the mine, might maintain the safety of miners while giving the administrative action time to proceed.
Congress, with the Mine Act, "tries to carve the courts out of the procedure as much as possible," said Massey Energy attorney Thomas C. Means.
But Congress didn't preclude the courts from proceeding on a parallel track with the administration, Thapar said.
No coal mine has been placed on a pattern of violations.
Because of regulations promulgated in the 1990s, operators receive a warning letter that allows them to rectify problems before being placed on a pattern. They also have the ability to appeal MSHA's citations, delaying or halting a pattern of violations proceeding — recourse that would be limited with a judge's order.
In November, Labor Secretary Hilda Solis filed the complaint against the Freedom Energy mine near Sidney, saying its operators had been cited hundreds of times since July 1, 2008, for failing to ventilate the mine, support the roof, clean up combustible coal dust and maintain electrical equipment.
MSHA has tried to force compliance and work with the Sidney mine's operators, Department of Labor attorney Mary Sue Taylor said Friday.
"We've not had success ... when they've made a lot of promises to us," Taylor said.
Correcting specific violations through the administrative procedure "may not fix the systemic problem of having roof falls," she said.
Thapar asked whether the courts can correct the systemic problem.
Opening the door of the courts to regulators, based only on the "belief" that a pattern of violations exist, "that by itself could wreak havoc on the courts," argued Massey attorney Daniel W. Wolff.
Massey Energy has idled coal production at the mine. In a conference call earlier this month, Massey attorneys "postulated that shutting the mine makes the action moot," Means said in court Friday.
MSHA officials said that because maintenance and "recovery" workers are still underground, they must abide by the same rules as a producing mine. Workers must weekly walk 11 miles of conveyor belt lines and inspect roof stability in three sections of a 41-square-mile mine.