Landmark Mine Safety Case Survives First Court Test

A federal judge in Kentucky appeared to give the government a partial victory Friday in an unprecedented attempt to force coal mining companies with persistent and repeated safety violations into federal court.

U.S. District Court Judge Amul Thapar did not give Massey Energy the dismissal it sought in a hearing over its Freedom Mine No. 1 in Pike County, Ky. Instead, Judge Thapar said he would issue a formal ruling as early as December 22, but indicated in his comments in court that the case would go to trial as planned on January 5.

Judge Thapar also indicated he would require the government to amend its case given the fact that Massey Energy has already announced its intention to close the Freedom Mine. Now the agency's attorneys must demonstrate that the process of closing the mine constitutes a "continuing hazard" to the 60 or so workers who are expected to spend several months dismantling and removing equipment.

"We believe that there is a pattern of roof control violations and they constitute a continuing hazard, whether miners are in that mine running coal or taking out equipment... they could still have a roof fall," said Patricia Smith, the Labor Department's solicitor, during a news conference this afternoon.

Based on Judge Thapar's statements from the bench, the ruling is also expected to require the Labor Department to prove that Massey's management of Freedom has triggered enough "significant and substantial" safety violations to warrant a preliminary injunction and federal court supervision of the mine.

But the judge indicated he would reject Massey Energy's claim that federal court action is premature. The company's attorneys noted that federal regulators did not first attempt to bring the mine into compliance with less serious enforcement actions. Judge Thapar indicated that was not necessary as long as the Labor Department can prove that Massey has failed to adequately respond to a pattern of citations, violations, orders and fines that are so "serious and substantial" they constitute a "continuing hazard" to Freedom's workers.

"If this is reflected in the judge's ruling, it has to give other mine operators pause," says Tony Oppegard, a former federal and state mine safety official now representing miners in lawsuits against mining companies.

Oppegard adds that he thinks the judge's response shows that the Labor Department "has been overly timid in not using this enforcement tool for fear it might lose in court.  Timid mine safety lawyers are not helping coal miners' health and safety."

Smith says she can't respond to the agency's failure to seek federal injunctions in the past. "I wasn't here," she says. "This Department of Labor takes this tool very seriously."

She also said the Labor Department is considering seeking court injunctions against three other mines but she declined to provide details.

"We are pleased that the court is more clearly defining the issues at hand," says Shane Harvey, vice president and general counsel of Massey Energy.  Harvey adds that Massey is "committed to close the mine in a safe fashion and open to working with [the Mine Safety and Health Administration] in doing so."

Harvey says Freedom ceased coal production just before Thanksgiving and they began the process of closing the mine on December 6.

Freedom has been plagued by massive rock falls, even in areas where mining is not taking place. The mine is also considered extremely gassy and experiences infusions of methane that are potentially explosive.

"Freedom will need to remain vigilant with regard to the issues of roof falls and methane," Harvey acknowledges. "But the exposure to both should be lessened now that the mine is not producing coal."

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