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MSHA settles 'unprecedented' suit against Massey

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CHARLESTON, W.Va. -- Federal mine safety regulators reached an 11th-hour settlement Wednesday with Massey Energy that ends what the Obama administration had touted as a landmark suit to shut down an underground coal mine that government inspectors said posed a continuing hazard to workers.

Massey had announced a month after the suit was filed that it would voluntarily close its Freedom Energy No. 1 Mine in Pike County, Ky., and Wednesday's settlement spells out steps the company must follow to do so safely.

Officials from the federal Mine Safety and Health Administration and the Labor Department touted the deal as a major victory for their agencies and for the safety of Massey miners who continue working to shut down and seal the operation.

The case was the first time that MSHA used its 33-year-old authority to seek a federal court injunction against a mine that federal inspectors said posed a continuing hazard to the health and safety of miners.

"This is clearly an unprecedented action," MSHA chief Joe Main told reporters during an afternoon conference call. "It is an historic move forward in terms of the use of this enforcement tool under the mine act."

In a later prepared statement, Labor Secretary Hilda Solis called the settlement "a legal victory not only for the Department of Labor, but for all miners employed by Freedom Energy."

But it was not clear when -- or if -- the government would follow through on earlier promises to file similar lawsuits seeking to put other mining operations under court-supervised safety plans.

Labor Department Solicitor Patricia Smith said two of the three mines her lawyers were considering for such suits have closed, while government officials are still looking closely at the safety record of the third.

"We will use this tool in appropriate circumstances, but we will not use it just to say that we filed for an injunction," Smith said. Earlier in the day, Main told reporters in another conference call that "time will tell" if his agency would pursue more injunction actions.

Smith said MSHA's suit against Freedom Energy has already served as a deterrent, showing the coal industry agency officials are serious about tougher enforcement following the April 5 explosion that killed 29 workers at Massey's Upper Big Branch Mine in Raleigh County.

In the Freedom Energy case, U.S. District Judge Amul R. Thapar in Pikeville has already approved the settlement, which among other things allows the court to maintain jurisdiction over the mine and take action to enforce the terms of the settlement.

Under the deal, Massey is required to follow a detailed plan for the mine closure. The plan includes more frequent safety examinations and requires top mine management officials to sign off on the results of those examinations. It also includes a long list of requirements aimed at keeping safe the roughly 60 miners expected to carry out the task or shutting down the mine and recovering equipment from underground.

"We felt the best course of action was to cooperate with MSHA and jointly develop a plan for our coal miners to safely close the Freedom Energy mine," said Shane Harvey, Massey's general counsel. "We appreciate MSHA's input and cooperation on the plan and are pleased to have resolved the matter."

Massey had argued that the Freedom mine was not a safety hazard, but also raised legal questions aimed at heading off the government's ability to bring the suit in the first place.

The deal was reached early Wednesday morning, as attorneys for MSHA and Massey were preparing to start a lengthy hearing on the government's request for a preliminary injunction to shut the mine until safety problems there were remedied.

MSHA sued Freedom Energy in early November, citing nearly 2,000 violations over the last two years in which agency inspectors accused the company of failing 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.

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 last 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.

And in December, the judge in the Freedom Energy case handed MSHA a major victory when he upheld the agency's interpretation that -- 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. The judge also ruled for MSHA in finding that the agency did not have to put Freedom Energy on an administrative "pattern of violations" in order to seek relief from the court.

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


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