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POV Injunction Case Could impact all Mines

In an unprecedented legal case, the Labor Dept. and Massey Energy's Freedom Energy Mining Co. have reached a settlement where MSHA sought a court injunction on the "belief" of a pattern of violations. Solicitor of Labor Patricia Smith said the "Labor Dept. is very excited by this settlement," noting that most of the settlement provisions go "above and beyond the normal requirements contained in the Mine Act."

The settlement has the potential to affect every mine operator in the U.S. To initiate an enforcement action, MSHA needs only to “believe” there is a pattern of violations.

The judge who approved the settlement, Judge Amul R. Thaper, was nominated by President George W. Bush, and confirmed in May 2007. Before becoming a judge, Thaper served as U.S. Attorney for the Eastern District of Kentucky since March 2006, and previously served as an Assistant U.S. Attorney for the Southern District of Ohio and for the District of Columbia.

Any mine who receives a letter from MSHA that they are on MSHA's "potential" POV list is at risk. Right now there are two metal/nonmetal mines that received a warning letter: National Cement Co. ofAla., and Great Basin Gold of Winnemucca, Nev.

Under the settlement, Freedom is required to immediately abate any violation or hazard. There is no such thing as a 'reasonable time' for abatement. No work can be done until the violation is abated. A chief management officer of the mine has to be personally responsible to oversee operations and this person must counter-sign the exam books.

"This is important because the person who can provide the resources to abate can immediately do so," Smith said. MSHA can withdraw miners for any violation of a mandatory standard -- not just for an alleged S&S violation.mIf there is any violation involving equipment, MSHA is able to immediately shut down the equipment until the violation is abated.

If miners are withdrawn, Freedom must pay the miners up to one week, and if the mine remains closed after a week, then Massey must offer the miners work at one of 6 mines within a 60 mile driving distance from the mine. Smith said that there are 60-80 miners working at the mine, and that Massey has up to 300 positions available within this 60 mile radius should miners need work.

All requirements in the settlement agreement are subject to the court's contempt proceedings. MSHA-head Joe Main said the settlement "is an action that gives MSHA a different opportunity for enforcement." He noted that there are some POV provisions, but primarily it gives MSHA greater authority to shut down a mine for conditions not deemed S&S.

When asked if there would be a continuing MSHA presence at the mine, Main and Smith noted that the company must tell MSHA in advance where it is working in the mine, so MSHA can use all resources effectively.

MSHA sought an injunction Nov. 3, and said the mine, located in Pike county, Ky., was "one accident away from tragedy." (17 MSHN 496). Right after MSHA sought the injunction, Massey announced it would close the mine, due to the mine's age and size.