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MSHA gets OK to pursue shutdown of Massey mine

CHARLESTON, W.Va. -- A potentially groundbreaking lawsuit over Massey Energy safety practices apparently survived the company's initial legal challenge on Friday and is headed for a full hearing in early January, officials said.

U.S. Department of Labor officials are seeking a federal court injunction against Massey subsidiary Freedom Energy's Mine No. 1 in Pike County, Ky.

Lawyers for the department's Mine Safety and Health Administration are for the first time using more than 30-year-old enforcement authority in asking U.S. District Judge Amul Thapar to shut down the Freedom operation. MSHA inspectors and supervisors allege the mine has committed a "pattern of violations" that poses a "continuing hazard" to miners' health and safety.

Thapar did not immediately issue a formal ruling and said he would likely do so next week.

But the judge did appear to side with MSHA on two key legal points raised by Massey lawyers in the motion to have the case thrown out: Agency officials do not have to administratively put a mine under a "pattern of violations" status before seeking a court order under a separate section of law, and the court can consider citations that are still being appealed by the company in deciding whether to issue an injunction.

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.

Separate legal authority allows MSHA to seek a federal court injunction against mines with repeated violations and where miners are at a continuing risk.

MSHA had never used that authority either, but agency chief Joe Main launched the Freedom Energy case as part of an Obama administration crackdown following the deaths of 29 miners in an explosion April 5 at Massey's Upper Big Branch Mine in Raleigh County.

During Friday's hearing in Covington, Ky., Thapar also told government lawyers to amend their complaint and provide additional information to address Massey's announcement -- made after the original suit was filed -- that it would cease coal production at Freedom Energy and close the mine.

"I'm pleased the judge viewed the statute the way we viewed the statute, but this was just a motion to dismiss," said Solicitor of Labor Patricia Smith. "We're going to go forward with the evidentiary hearing. This is not an action that is over, so I'm not declaring victory."

Shane Harvey, Massey's general counsel, said the company is pleased the court "is taking a hard look at these important issues."

"We're hesitant to describe the hearing as a 'victory' for any party, but we are pleased that the court is more clearly defining the issues at hand," Harvey said. "Moreover, in any event, we are committed to closing the mine in a safe fashion and open to working with MSHA in doing so."

When MSHA filed the initial suit in early November, the agency cited nearly 2,000 violations over the last two years at Freedom Energy, and agency inspectors alleged the company had failed to clear the mine of excessive coal dust, not properly controlled the mine roof, ignored requirements for testing and maintaining electrical equipment, and not effectively ventilating the mine.

Smith said that MSHA remains concerned about the safety of miners who will continue to work helping Massey close the mine, especially in light of deteriorating roof conditions and repeated roof falls.

"Whether those miners are in that mine running coal or they're in that mine taking out equipment, they could still have a roof fall," Smith said.

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


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