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SAFETY AND HEALTH: No ‘miner’ violations: MSHA seeks injunction against Freedom Energy

01.01.2011

On November 3, 2010, the U.S. Department of Labor’s (DOL) Mine Safety and Health Administration (MSHA) asked the U.S. District Court for the Eastern District of Kentucky to grant a preliminary injunction to shut down Freedom Energy Mining Company’s Mine No. 1 in Pike County. The DOL asserts that the mine’s pattern of Mine Safety and Health Act violations constitutes a continuing hazard to the health and safety of miners. The request has been described by Labor Department officials as unprecedented. 

Repeated violations 

Section 108(a)(2) of the Mine Safety and Health Act allows injunctive relief against noncompliant coal mine operators that routinely violate health and safety standards. According to the MSHA’s filing, Freedom Energy engaged in a pattern of failing to examine and maintain critical areas of its mining operations, evidenced by the quantity and gravity of violations in four critical spheres of safety. Specifically, it has repeatedly failed to:

  1. clear the mine of excessive accumulations of coal dust;

  2. protect the roof, face, and ribs from falls and maintain an effective roof control plan;  

  3. test and maintain electrical equipment in a safe working condition to protect against fire or explosion; and  

  4. effectively ventilate the mine of noxious and explosive gases.

The MSHA alleges that during the past two years, seven miners have been injured at the mine as a result of a fallen roof. The agency further contends that since August 11, 2010, six major roof falls have occurred in the mine. During the eight regular inspections conducted between July 2008 and June 2010, the MSHA has issued 1,952 citations and 81 orders. 

According to the DOL, MSHA district office officials have attempted to resolve serious safety issues at Freedom Energy on numerous occasions. Specifically, the agency has met with upper mine management over recurring roof problems, ventilation and dust control issues, excessive dust accumulation, and electrical equipment maintenance. Further, according to the DOL, the inspections, citations, and meetings have netted no changes. As a result, the MSHA claims it was compelled to use its statutory authority to ask the federal court to temporarily shut down the mine until specific safety measures are taken. 

On December 1, Massey Energy Company, which owns Freedom Energy, announced it would shut down the mine, reassigning resources from Freedom Energy to other company facilities. Some of the miners will be moved to other Massey locations, while others will remain at Freedom Energy to recover equipment and materials. In response, MSHA spokeswoman Amy Louviere said the DOL would continue to seek a court order for injunctive relief to ensure that miners who continue to work in any capacity at Freedom Energy are safe. Solis v. Freedom Energy Mining Co., E.D. Ky., No. 7:10-00132, motion for preliminary injunction, filed 11/3/10. 

Bottom line 

Because Massey voluntarily shut down Freedom Energy, it appears the DOL’s court case is moot. However, the DOL argues it is still seeking injunctive relief because miners continue to work underground at Freedom Energy to retrieve equipment, and the mine is still unsafe. ✤

 


 

If you have any questions or need help, please contact any member of the Bingham Greenebaum Doll LLP Labor and Employment Department. Find us online at www.bgdlegal.com. 

Copyright 2010 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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