PIKEVILLE — The Department of Labor and Massey Energy agreed Wednesday to settle out of court a "pattern of violations" mine safety case that was the first of its kind.
The agreed order, filed at U.S. District Court in Pike ville Wednesday, includes a plan to have equipment removed from the Pike County Freedom Energy Mine No. 1.
The company voluntarily shut down the mine in November after safety regulators brought the unprecedented court action to seek its permanent closure. The Department of Labor's Mine Safety and Health Administration scored a victory in December when U.S. District Judge Amul Thapar ruled the government can take mines to court before completing an administrative pattern of violations procedure.
Three days of testimony, including some by miners who were waiting in the courtroom, were scheduled to start Wednesday as the judge considered whether to grant a preliminary injunction temporarily halting all work at the mine. Even though the mine is not producing coal, miners remain to remove equipment.
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"We felt the best course of action was to cooperate with the Mine Safety and Health Administration and jointly develop a plan for our coal miners to safely close the Freedom Energy mine," Massey Vice President and General Counsel Shane Harvey said in a written statement. "We appreciate MSHA's input and cooperation on the plan and are pleased to have resolved the matter."
The company said it decided to close the mine in November because it was too expensive to meet MSHA's demands. In court filings, the agency said it has found hundreds of serious and substantial violations of roof control, ventilation and coal dust accumulation at the mine. Only a portion of those violations are considered "final orders" however. Thapar indicated from the bench he would be looking for the Department of Labor to prove that non-final orders were likely to be a continuing hazard for miners, as well as likely to become final, and that MSHA was likely to prevail in its administrative case. That may have been a tall order, given that no mine has ever been placed on a pattern of violations.
"The settlement leaves that question unanswered," said Wes Addington, a mine safety lawyer with the Appalachian Citizens Law Center in Whitesburg. "The more important question was what the judge answered in December, which was that they can bring the action at all.
"Now that they've tested this section of the law and found out it works, MSHA has a responsibility to use it in the future."
The threat of court action has led to two other mines shutting down before a case was filed, Department of Labor Solicitor Patricia Smith said Wednesday.
MSHA had been targeting three other unidentified mines for similar court action. The operator shut down one as a complaint was being drafted, Smith said, and another was shut down using administrative withdrawal orders.
The agency is planning to seek an injunction against one other mine; Smith said it is not a Massey mine but wouldn't identify it in a conference call with reporters.
"Mines are really very seriously looking at their safety practices," Smith said.
The settlement orders Freedom Energy to take several safety measures beyond what's required by the Mine Act. Mine management is required to immediately abate any hazard, rather than having a waiting period. MSHA can order the withdrawal of miners at the sight of any hazard, not just a "significant and substantial" violation.
"The real reason that we settled was because in this order we were getting everything that we wanted" to make miners safer, Smith said.
There have been no fatalities at the mine, but there have been injuries, and several injuries went unreported to MSHA, court filings said.
Addington said he thought the settlement held higher managers more accountable for safety at the mine. Massey will be required to brief miners on safety issues before their shifts and to post copies of citations on notice boards at the mine. The mine superintendent or the chief electrician will have to counter-sign inspection reports for equipment and ventilation.
"That puts higher burden and higher level of responsibility on the company so that if mistakes are made, or if books are intentionally doctored, then it doesn't fall on lowest level of management," Addington said. "It creates an incentive there for higher level management at this mine to do proper examinations."
Freedom Energy, under the court order, will be required to pay miners who are ordered to withdraw for up to a week or find them jobs within a 60-mile radius. There are 60 to 80 miners working to clear out the the Freedom mine in Sidney, and Massey has reported that there are 300 jobs at around six mines in a 60-mile radius, MSHA officials said Wednesday.
If it doesn't follow the court order, Massey will be subject to contempt of court proceedings.