Hearings to focus on Pike mine's policies, safety culture

PIKEVILLE — Freedom Energy plans to call three miners to testify about safety policies and procedures at its parent, Massey Energy, to persuade a federal judge not to order a Pike County mine closed.

U.S. District Court filings by the Department of Labor and by Freedom Energy attorneys indicate testimony at the hearing scheduled to start Wednesday will focus on not just specific violations at the mine, but also the general policies and overall safety culture at Freedom Energy's Sidney Coal Corp. mine. In October, the U.S. Mine Safety and Health Administration targeted the mine in its first attempt to use the courts to shut down a mine it believes might be on a "pattern of violations."

Testimony is scheduled to last three days, but attorneys for Massey Energy and the Department of Labor told the judge during a status hearing Tuesday that they were trying to reach an out-of-court settlement.

Federal regulators did not include current miners on a witness list submitted to the court, but one MSHA employee was a safety official at Massey from December 2004 to October 2006. An industrial engineer, Terry Mike Jude participated in mine rescue and recovery operations at the Massey Energy Aracoma Alma fire and participated in the rescue of two people at the Mammouth No. 15 mine, the Department of Labor said in court filings.

Jude now works as a ventilation specialist and inspector for MSHA.

In addition to calling mine supervisors and company managers, Massey attorneys plan to call three miners at the Freedom No. 1 mine: Ronald Finley, Claude Bartley and Mark Bogar. They will discuss "their personal work experiences" including "their right to raise safety concerns with management, and their personal views of the safety culture at Mine No. 1," the company said in court filings.

In December, U.S. District Judge Amul Thapar denied Freedom Energy's motion to dismiss regulators' motion for a preliminary injunction closing the mine. The company voluntarily halted production at the mine in November, saying safety compliance was too costly in the sprawling 15-year-old mine. But miners remain to remove equipment and to seal and close the mine.

In an amended complaint filed after that ruling, Department of Labor attorneys argue that civil penalties and the usual administrative punishments heaped by the thousands on the mine "will not suffice to ensure defendants' continued compliance ... such compliance will not continue once MSHA inspectors leave the mine, and that in the absence of an injunction, defendants will continue to engage in patterns of violation of mandatory health and safety standards that will continue to constitute a hazard to the health and safety of miners."

MSHA wants the court to enforce a strict safety plan for removal of equipment and continued inspection of the mine while it is being shut down.

Massey attorneys called the plan a "novel regulatory regime" that "effectively invests the secretary with new regulatory powers and direct control over the mine."

The company also argues that Thapar, by ruling in favor of the Department of Labor, could unduly influence the administrative "pattern of violations" proceeding that started with a "potential pattern of violations" letter from regulators to the company in November.

Federal regulators have never before gone to court to seek shutdown of a mine, and they have never succeeded in placing a mine on an administrative pattern of violations list. Ordinarily, mine operators have a chance to appeal citations and orders and submit a plan of action to correct problems once a potential pattern of violations letter is sent.

"The court should refrain from placing such a heavy judicial thumb on the scale of administrative decisions," Freedom Energy attorneys argued.