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MSHA seeks order to close Massey mine

Read the lawsuitCHARLESTON, W.Va. -- Federal regulators asked a federal judge to shut down a Massey Energy mine they allege is a disaster waiting to happen, invoking for the first time a powerful legal tool the Obama administration says it plans to continue to use against mine operators who repeatedly flout safety and health rules.

Lawyers for the U.S. Labor Department's Mine Safety and Health Administration filed suit in U.S. District Court in Pikeville, Ky., seeking an injunction against Massey subsidiary Freedom Energy's Mine No. 1 in Pike County.

Citing nearly 2,000 violations over the last two years, MSHA said its inspectors had repeatedly cited the company for failure to clear the mine of excessive coal dust, not properly controlling the mine roof, ignoring requirements for testing and maintaining electrical equipment, and not effectively ventilating the mine.

"This mine is basically an accident away from a possible tragedy," said M. Patricia Smith, who as solicitor of labor is the agency's top attorney.

MSHA sought a federal court order that would close the entire mine -- an action the agency can't take on its own authority -- until it corrects all hazardous conditions and designs a new safety program MSHA will approve.

If granted, MSHA's request would put the operation under an unprecedented court order that a federal judge would have to sign off on before mining could resume. MSHA also is seeking to force Massey to pay miners for the period the mine is closed. The mine employs about 135 underground miners and produced about 600,000 tons of coal in 2009, according to MSHA records.

Under MSHA's proposed court order, the new safety program must contain improved training requirements, ensure that high-level mine officials conduct additional safety inspections, and mandate mine evacuations when additional violations are found.

"Freedom needs to do all of these things for long enough to establish good safety and health habits," the agency's acting district manager for Eastern Kentucky, James Poynter, said in a sworn statement filed in court. "This will probably take a year, but if Freedom has a regular, quarterly inspection without any significant and substantial violations, that might be long enough."

Massey said in a statement that it doesn't believe the mine is unsafe, but that it has "struggled to comply with newer MSHA standards." Massey said it "is considering idling the mine until it can ensure that the mine will meet current MSHA standards."

But in its extensive court filings -- including sworn statements from seven agency inspectors, experts and supervisors -- MSHA alleges a wide variety of "critical safety and health standards" dating back to at least July 2008.

For example, MSHA Pikeville field officer supervisor William Sergent said in a court filing that agency inspectors frequently find inadequate roof support, accumulations of explosive coal dust, and untested and mislabeled electrical equipment. Massey mine managers frequently do not do proper safety examinations meant to uncover and correct such problems, Sergent said.

"Freedom Energy has demonstrated time and again that it cannot be trusted to follow basic safety rules when an MSHA inspector is not at the mine," said MSHA chief Joe Main. "If the court does not step in, someone may be seriously injured or die."

Since 1977, MSHA has had legal authority to take stepped up enforcement action against mine operators that commit a "pattern of violations." But MSHA has never successfully used that authority, and earlier this year lost a legal challenge to an effort to do so at another Massey mine.

But separate legal language allows MSHA to seek a federal court injunction against mines with repeated violations and where miners are at a continuing risk. Unlike its administrative "pattern of violations" tool, a court injunction does not require all citations MSHA is using as evidence to have survived company appeals.

Smith, the labor department solicitor, said her agency is considering similar suits against other mines.

"We have a number of other mines under consideration," she said. "We're looking at their records right now."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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