MSHA seeks court order to close Massey mine in Ky.

November 3, 2010 by Ken Ward Jr.

Lawyers for the Obama administration’s Department of Labor did something today that the agency has apparently never done before: They asked a federal judge to shut down a coal mine to stop what agency officials believe is a continuing threat to the health and safety of miners.

The Labor Department’s Mine Safety and Health Administration filed this lawsuit in U.S. District Court in Pikeville, Ky., over the repeated safety violations MSHA inspectors have discovered at Massey Energy subsidiary Freedom Energy Mining Co.’s Mine No. 1 in Pike County. MSHA lawyers also asked for a preliminary injunction, and I’ve posted a copy of that court filing here and a related legal brief here.

Among other things, the MSHA lawyers allege:

Since July 2008, the Department of Labor’s Mine Safety and Health Administration has conducted over 261 inspections and investigations at the Freedom mine. These inspections and investigations have resulted in at least 1,952 citations and orders, including at least 643 for violations of critical safety or health standards. MSHA has exercised its authority at least 81 times to order miners withdrawn and parts of the mine closed until unsafe conditions were corrected.

Despite these measures, unsafe conditions continue to reoccur. Six roof falls have occurred since Aug. 11, 2010. Just this past September, 2010, a roof fall occurred that would have killed miners but for the fortuitous (and unrelated) evacuation from the mine.

Freedom is engaged in a pattern of violations of the mandatory health and safety standards of the Mine Act which constitutes a continuing hazard to the health or safety of the miners working at this mine.

My buddy Howard Berkes over at NPR was the first out with this story, and has a detailed report on the Freedom mine here. As Howard explains:

For 33 years, the agency has had the authority to take mining companies to federal court when they have serious and persistent safety violations. But this “injunctive relief” section of the Federal Mine Safety and Health Act has not been invoked until now.

Section 108(a)(2) of that law authorizes the Labor Department to seek restraining orders, preliminary or permanent injunctions and other federal court orders when a mining company “is engaged in a pattern of violation” that “constitutes a continuing hazard to the health or safety of miners.”

Among other things, Howard quotes from this sworn declaration from James Poynter, the assistant MSHA district manager covering the Freedom mine:

The non-union Freedom Energy Mine No. 1 “has a high risk level for a fatal accident…on any given day” writes James Poynter, an assistant district manager at the Mine Safety and Health Administration (MSHA), in a document filed in federal court on Wednesday.

“MSHA continues to find serious and threatening conditions at this mine,” Poynter adds, even after federal officials met multiple times with Freedom Energy managers about conditions at the mine. The most recent meeting cited took place in July.

“MSHA has used all the tools available to it in the regulatory scheme in an attempt to bring this operator into compliance,” Poynter concludes.

The NPR story has this initial reaction from Massey:

Massey Energy was not aware of the court action when contacted by NPR. Shane Harvey, Massey vice president and general counsel, provided this immediate response:

“We are checking into this now. Regardless of what the complaint says, we are committed to running Freedom Energy and all our operations safely and will take whatever steps are necessary to ensure the safety of our miners,” Harvey says. “As you will recall, we idled all underground operations last Friday to conduct additional safety training and to identify and correct hazards.”

And it includes this interesting tidbit as well:

Freedom Energy Mine No. 1 was included in that safety training and Massey CEO Don Blankenship personally presented the safety briefing during Freedom’s day shift and at two other company mines.

Last week, Blankenship spoke generically about older and larger mines like Freedom that also generate more safety violations.

“They’re getting those violations not because we feel like the mine is more dangerous or because we’re not trying real hard but there’s so much area” underground, Blankenship said. Some, he continued, have millions of square feet and conveyor belts miles long, “and if you want to find (safety violations) you can pretty much find that in a mine of that size.”

“The bigger, older mines are much more difficult to avoid violations,” Blankenship said.

Updated: MSHA just issued a news release that quotes agency chief Joe Main:

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. If the court does not step in, someone may be seriously injured or die.


5 Responses to “MSHA seeks court order to close Massey mine in Ky.”

  1. Ken Ward Jr. says:

    Here’s a formal statement justice issued by Massey:

    Massey Energy Company (NYSE:MEE) confirmed today that the Mine Safety and Health Administration (MSHA) has filed a lawsuit in federal district court in Kentucky seeking to close the Company’s Freedom Energy Mine No. 1 until alleged safety hazards can be corrected.

    The Freedom Energy Mine is an older mine with extensive underground workings. The operation has struggled to comply with newer MSHA standards. The Company has recently focused additional scrutiny on the operation, including a personal visit by Chairman and CEO Don Blankenship as part of Massey’s company-wide safety stand down conducted on October 29, 2010. During the safety stand down, all underground Massey operations, including Freedom Energy, idled production, gave their miners additional safety training, and took steps to identify and correct mine hazards.

    Massey does not believe the mine is unsafe. However, due to the mine’s age and size, the Company is considering idling the mine until it can ensure that the mine will meet current MSHA standards. During its October 27, 2010 earnings call, the Company discussed the possibility that some of its older mines with more extensive workings could be idled. Should the Company decide to idle the mine, every effort will be made to reassign the miners to nearby locations. Freedom Energy currently mines approximately 500,000 tons of steam coal annually.

  2. Ellen says:

    While the mine may be struggling to comply with new standards, the standards cited by the Secretary in the complaint are not new: §75.202(a) and §75.220(a)(1) covering protection from roof falls and roof control plans; §75.370(a)(1) for ventilation violations; §75.400 for accumulations of combustible materials; §75.503 for failing to examine, test and maintain permissible electrical equipment; and, §75.512 for testing and maintenance of electrical equipment.

  3. Monty says:

    The current word in vogue for this is “pushback.” Massey has been saying for months, since the Upper Big Branch tragedy, that MSHA doesn’t know how to do its job. Now MSHA, with this action. is asking whether or not Massey knows now to do its job.

    And oh, by the way, it’s an older mine so it’s harder to make it meet all these new and more stringent safety inspections … is what Massey appears to be saying. Cold comfort to the miners who may soon be out of jobs, but just another example of Massey’s “blame the messenger” method of operations.

  4. Andrew says:

    Let me get this straight- so, is Massey effectively saying that since the mine is big and old, MSHA should allow them to make miners risk their lives by working in dangerous conditions?

    At the end of the day, all that should matter is that the miners get home safely.

  5. Walnutcove says:

    Be interesting to note and understand how Ellens comment( §75.503 for failing to examine, test and maintain permissible electrical equipment; and, §75.512 for testing and maintenance of electrical equipment.) Is being carried out by MSHA and the operator. Example go to MSHA.gov and look at Compliance Information/MSHA handbook series/PH93-V-7 Electrical Inspection Procedures Handbook/ chapter 3. These checks are required weekly see 75.512-2 Frequency of examinations for electrical/permissible equipment. I wonder if these guidelines are being followed by the operator or MSHA??

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