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This is a text-only version of the document "Solis v. Freedom Energy - Memo for Preliminary Injunction - 2010". To see the original version of the document click here.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE


HILDA L. SOLIS, Secretary of Labor,
United States Department of Labor,
Plaintiff,
v. C


FREEDOM ENERGY MINING COMPANY
and
SIDNEY COAL COMPANY, INC. d/b/a
FREEDOM ENERGY MINING COMPANY,


Defendants




Civil Action No


SECRETARY’S MEMORANDUM OF LAW
IN SUPPORT OF HER MOTION FOR
PRELIMINARY IN,|UNCTION


Since July 2008, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) 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least 81 times to order miners withdrawn and parts of the mine closed until unsafe conditions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 August 11, 2010. Just this past September, 2010 a roof fall occurred that
would have killed miners but for their fortuitous (and unrelated) evacuation from the mine.
Freedom is engaged in a pattern of violation of the mandatory health and safety standards of the




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Mine Act which constitutes a continuing hazard to the health or safety of the miners working at
the mine.
This Court needs to intervene to prevent accidents and injuries, and potentially the deaths
of up to 50 miners working underground at any given time. The Secretary of Labor moves for a
preliminary injunction under Sections l08(a)(2) and 108(b) of the Federal Mine Safety and
Health Act of 1977, as amended (“Mine Act”), 30 U.S.C. §§ 818(a)(2) and 818(b), against
Freedom Energy Mining Company and Sidney Coal Company, Inc. doing business as Freedom
Energy Mining Company (“Defendants” or “Freedom”), and submits this Memorandum of Law
in Support of Her Motion for Preliminary Injunction.
STATEMENT OF THE CASE
I. THE MINE ACT’S ENFORCEMENT SCHEME
Congress enacted the Mine Act to “protect the health and safety of the Nation's coal [and]
other miners.” 30 U.S.C. § 801(g). The Mine Act authorizes the Secretary of Labor to
promulgate “improved mandatory health or safety standards for the protection of life and
prevention of injuries in coal or other mines.” 30 U.S.C. § 811. To ensure that mine operators
comply with the Mine Act and the mandatory health and safety standards, the Mine Act requires
authorized representatives of the Secretary of Labor to inspect all underground coal (and other
underground mines) in their entirety at least 4 times a year. 30 U.S.C. § 813(a). These
mandatory inspections are conducted by MSHA inspectors. Since underground coal mines also
liberate methane, a dangerous, explosive gas, the Mine Act also requires additional inspections,
known as “spot” inspections. These inspections occur at irregular intervals from every 5 days to
every 15 days based on the quantity of methane liberated. 30 U.S.C. § 813(i). The Mine Act




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also permits MSHA to conduct additional inspections as necessary depending on the mining
conditions. 30 U.S.C. §813(a).
The Mine Act provides for several types of enforcement. First, various provisions of the
Mine Act require inspectors to issue citations and withdrawal orders when they find conditions
that violate the Mine Act or the safety standards. Second, Section 108 of the Mine Act allows
the Secretary to ask a federal district court for a preliminary or permanent injunction under
specific circumstances which are further explained below. Ir1 this particular case, in this
particular case, the Secretary seeks such injunctive relief under Section 108(a)(2) because
Freedom Energy is engaged in a pattern of violation of the mandatory health and safety standards
of the Mine Act, which constitutes a continuing hazard to the health and safety of the miners at
Freedom Energy.
A. Administrative Enforcement:
Citations and Orders Under the Mine Act
The most frequently used enforcement tool under the Mine Act is a Section 104(a)
citation. 30 U.S.C. § 814(a); Q 55 Fed. Reg. 31128-01 (July 31, 1990) (describing Mine Act
enforcement provisions). MSHA inspectors must issue such citations for violations of the Mine
Act, mandatory health or safety standards, or other rules and regulations issued pursuant to the
Mine Act. Q. The issuing inspector must provide the mine operator a reasonable time to correct
the violation. 30 U.S.C. § 814(a). At the close of the inspection, or sooner if necessary, the
MSHA inspector typically meets with the mine operator to discuss any violations found and to
ensure that mine management has a full understanding of the mine’s safety and health
conditions. & 55 Fed. Reg. 31128-01 (July 31, 1990) (describing MSHA enforcement
procedures). MSHA inspectors may suggest that the mine operator take remedial actions such as
increasing education and training activities or requesting engineering assistance from MSHA's
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Office of Technical Support. Q. For a mine with identifiable compliance problems, MSHA may
increase its inspector presence at the mine, possibly sending in~house specialists, such as roof
control, ventilation, or electrical experts, to assess the problems. M.
If an inspector later determines a mine has failed to abate a Section 104(a) violation
within the time set in the original citation, and if the inspector determines the time for abatement
should not be extended, the inspector must issue a withdrawal order under Section 104(b). 30
U.S.C. § 814(b). The withdrawal order applies only to the area affected by the violation and
prohibits anyone, except for individuals needed to correct the condition and certain other
individuals, from entering the area until the violation has been abated. Q
Another enforcement tool available to MSHA is the graduated enforcement scheme of
Section 104(d). 30 U.S.C. § 814(d). Section 104(d) provides for “increasingly severe sanctions
for increasingly serious violations or operator behavior.” Emery Mining Corp., 9 FMSHRC
1997, 2000 (1987), gig Cement Division, National Gypsum Co., 3 FMSHRC 822, 828
(1981).l Under Section l04(d), if an MSHA inspector finds a violation and also finds that the
violation is of a significant and substantial nature (that is, a more serious violation) and resulted
from the operator’s unwarrantable failure to comply with the mandatory standard, a 104(d)(1)
citation will be issued.2 30 U.S.C. § 814(d)(1). If during the same inspection or any subsequent
I The Federal Mine Safety and Health Review Commission (“FMSHRC” or
“Commission”) is the independent body charged with adjudicating MSHA citations. 30 U.S.C.
§823.
2 According to FMSHRC precedent, a violation is designated as significant and
substantial (“S&S”) if, based on the particular facts surrounding that violation, there is a
reasonable likelihood the hazard contributed to by the violation will result in an injury or an
illness of a reasonably serious nature. & Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). Ir1
Emegg Mining Corp., 9 FMSHRC 1997, 2001, 2003-04 (Dec. 1987), the Commission
determined that “unwarrantable failure” is aggravated conduct constituting more than ordinary
negligence, and is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or “serious lack of reasonable care.”
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inspection within 90 days of the issuance of the Section 104(d)(1) citation, an MSHA inspector
finds another unwarrantable failure violation, a Section 104(d)(1) withdrawal order is issued.
This order requires all miners in the area affected by the violation (except those persons needed
to correct the condition) to be withdrawn from the area until the violation has been abated. M.
Any unwarrantable failure violations found during subsequent inspections will result in Section
104(d)(2) withdrawal orders. 30 U.S.C. § 814(d)(2). This chain remains in affect until there is
an intervening “clean” inspection. RAG Cumberland Resources, 272 F.3d 590, 599-600 (D.C.
Cir. 2001). An intervening “clean” inspection requires a thorough and complete inspection of
the entire mine without any unwarrantable failure violations. Q. at 597.
Section 104(e) of the Mine Act is a graduated enforcement scheme for S&S violations,
allowing MSHA to impose sanctions on mines showing a pattern of S&S violations of
mandatory health or safety standards. 30 U.S.C. § 814(e)., MSHA has promulgated regulations
that establish criteria and procedures for determining whether a mine has developed such a
pattern of violations. 30 C.F.R. Part 104. These procedures require MSHA, once each year, to
engage in a screening process to review the compliance records of mines by examining the
mine’s history, and then identify mines which exhibit a potential pattern of violations through
final orders. When a potential pattern is identified, the mine operator is notified, and afforded up
to 90 days to institute a program to avoid repeated S&S violations. During this time period,
MSHA inspects the mine to determine if the mine operator has reduced its rate of S&S
violations. If the mine operator successfully reduces its rate of S&S violations, no pattern of
violations notice is issued to the mine operator and no enforcement action is taken under section
104(e).




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Section 107(a) of the Mine Act authorizes an inspector to issue an order requiring the
operator to remove all persons from the area affected whenever an imminent danger is
determined to exist. 30 U.S.C. § 817(a). An “imminent danger” is defined by the Mine Act as
“the existence of any condition or practice in a coal or other mine which could reasonably be
expected to cause death or serious physical harm before such condition or practice can be
abated.” 30 U.S.C. § 802(i). According to the FMSHRC, an “imminent danger” is a condition
or practice which has a “reasonable potential to cause death or serious injury within a short
period of time.” Utah Power & Light Co., 13 FMSHRC 1617, 1622 (1991). Because of the
inherent danger and highly volatile conditions in underground coal mines, the inspector’s
judgment is given considerable deference in making the determination of whether an “imminent
danger” exists. Wyoming Fuel Co., 14 FMSHRC 1282, 1291 (1992); Utah Power & Light Co.,
13 FMSHRC at 1622-1627. Where conditions or practices violate Mine Act safety or health
standards as well as create an imminent danger, a citation under Section 104(a) will also be
issued.
The Mine Act requires a civil penalty for every violation. 30 U.S.C. §§ 815(a), 820.
After the Secretary proposes a civil penalty for a violation, the mine operator must notify the
Secretary within 30 days of receipt of the citation or proposed penalty whether it wishes to seek
review by a FMSHRC administrative law judge. If it fails to do so, the Secretary’s notification
of the citation and proposed assessment of penalty is “deemed a final order of the Commission,”
and it is “not subject to review by any court or agency.” 30 U.S.C. § 815(a).
B. Judicial Enforcement Under the Mine Act
Section 108 of the Mine Act provides that the Secretary of Labor may institute a civil
action for relief, including a temporary or permanent injunction, restraining order or any other




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appropriate relief under a number of circumstances. Section 108(a)(1) provides for judicial
enforcement under specific circumstances. For example, the Secretary can apply for an
injunction when the mine operator violates, or fails or refuses to comply with any order or
decision issued under the Mine Act. & Section 108(a)(1)(A). Additionally, the Secretary can
apply for such relief when a mine operator interferes with, hinders, or delays MSHA in carrying
out the provisions of the Mine Act (Section 108(a)(1)(B)); when the mine operator refuses to
admit MSHA to the mine (Section 108(a)(1)(C)); when the mine operator refuses to permit the
inspection of a mine, or the investigation of an accident or disease occurring in, or connected
with a mine (Section 108(a)(1)(D)); when the mine operator refuses to furnish any information or
report requested by the Secretary in furtherance of the provisions of the Mine Act (Section
108(a)(1)(E)); and, when the mine operator refuses to permit access to, and copying of records
that the Secretary determines are necessary for her to carry out the provisions of the Mine Act
(Section 108(a)(1)(F)).
In addition to these situations, the Secretary can seek, as she seeks in this case, injunctive
relief pursuant to Section 108(a)(2), 30 U.S.C. § 818(a)(2), against mine operators who
habitually violate Mine Act health or safety standards. Section 108(a)(2) provides that the
Secretary may seek injunctive relief
...whenever the Secretary believes that the operator of a coal or
other mine is engaged in a pattern of violation of the mandatory
health or safety standards of this Act, which in the judgment of the
Secretary constitutes a continuing hazard to the health or safety of
miners.
30 U.S.C. § 818(a)(2) (emphasis added). In drafting Section 108(a)(2), Congress created “a
means by which the Secretary can obtain the correction of violations which habitually occur
when the inspector is not present in the mine.” S. REP. NO. 95-181, at 39-40 (1977).




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II. THE HISTORY OF VIOLATIONS AT THE MINE
Freedom reported a total of about 132 employees working 9 hour shifts, with 2
production shifts and 1 maintenance shift daily. Thirty-five to 50 miners work underground at
any one time. The mine operates 6 days a week. Declaration of James Pogter, fl] 4.3 It lies in a
particularly dangerous coal seam that liberates massive amounts of methane and is prone to roof
falls. Declaration of Darrell Hurley, f|ls 11 and 12; Declaration of William M. Sergent, Sl 19;
Declaration of Stevie Justice,  | 7; and Poynter, fl] 17. Since July 2008, MSHA conducted 9
regular quarterly inspections of Freedom, including a Part 50 audit in January 2010, a Section
103(g) hazard complaint inspection in April 2010, another Part 50 audit and an “impact”
inspection in September 2010. MSHA has also conducted additional inspections, including
Section 103(i) spot inspections, accident investigations, health investigations, roof control
investigations, ventilation investigations, and electrical investigations. These inspections have
resulted in at least 1,952 citations and orders, including 643 for violations of critical safety or
health standards related to improper roof support, improper ventilation, failure to clean up coal
dust and other combustible materials, and failure to maintain electrical equipment. Poynter, Sl 8.4
These violations include at least 62 withdrawal orders under the unwarrantable failure provisions
3 Accompanying this Memorandum of Law are the declarations of the following 7
individuals from MSHA’s Coal District 6: James Poynter (Acting District Manager), William M.
Sergent (Field Office Supervisor), David Ison (Acting Assistant District Manager), Stevie Justice
(District Health Supervisor), Darrell Hurley (District Roof Control Specialist), David Hardin
(MSHA Inspector), and Danny R. Deel (Field Office Supervisor).
4 In addition to various records that are internal to MSHA, Freedom’s inspection history
is also publicly available through the Mine Data Retrieval System link on MSHA’s website
(www.msha.gov), from which some of the declaration testimony is derived. Pursuant to Federal
Rule of Civil Evidence 201, the information on MSHA’s website is generally known within the
territorial jurisdiction of the CoLu't, and is based on MSHA’s data record keeping systems the
accuracy of which is not reasonably questioned. Accordingly, the Secretary respectfully submits
that the information on MSHA’s website constitutes “adjudicative facts,” of which the Court
may take judicial notice.
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of Section 104(d)(2), 9 withdrawal orders under the unwarrantable failure provisions of Section
104(d)(1), 6 withdrawal orders under the imminent danger provisions of Section l07(a), and 4
withdrawal orders under Section 104(b) for failure to abate violations that were cited by MSHA.
Sergent, Sl 8. Nineteen roof falls have occurred since October 2008, 6 of them occurring between
August 11, 2010 and October 18, 2010. Hurley, Sls 20 - 30. On September 11, 2010 the roof fell
over a working section that had been temporarily evacuated due to a power failure. Hurley, Sls 22
13. But for the fortuitous evacuation, miners would have died. Hurley, Sl 23.
A. Roof Control and Roof Conditions
“Roof control” is a general mining term that describes the means for supporting the layers
of rock above the coal seam, commonly known as overburden. Hurley, Sl 5. Freedom lies in the
Pond Creek coal seam in Pike County, Kentucky which has a number of geological features that
create hazardous conditions related to roof control. Pogter, Sl 4; Hurley, Sl 11. In this coal seam,
the overburden lies perpendicular to the coal, causing the conventional bolt system to be
insufficient to hold the roof. Hurley, Sls 11 - 13. Additionally, large areas of the mine are
affected by “draw rock,” the loose rock in the roof of the coal seam, which falls easily when the
roof support begins to fail. Hurley, Sl 7. This exacerbates roof control problems by leaving the
bottom section of the roof bolts hanging without contact with the rock strata, and thus, no longer
supporting the roof. Hurley, Sl 14.
Operators must develop and follow an MSHA approved roof control plan. Each operator
must submit a plan written for an individual mine and comply with it as a minimum safety
requirement. Hurley, Sl 7. Inspectors frequently find that Freedom fails to comply with its
approved roof plan in a number of ways. Hurley, Sl 17. Freedom routinely fails to support newly-
mined areas, support older areas of the mine, clean up roof falls, and examine the roof strata for




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problems.
Inspectors frequently find that the mine roof at Freedom is not adequately supported
initially in newly mined areas on the working sections. Operators are required to install roof
control devices based on the geological conditions at the mine. Freedom managers continuously
fail to install correct roof support when they encounter poor roof conditions and geological
structures which weaken the roof. Freedom received 27 such citations for violations during the
period from January 13, 2009 through September 2, 2010. Sergent, fll 10.
Inspectors also find that the Freedom mine roof is not maintained in areas that were
mined in the past but are still in use. Freedom frequently fails to perform visual inspections of
the mine roof as required by law. In addition, Freedom fails to provide tools for taking down
draw rock in the roof. Freedom often fails to replace roof bolts which are either hit by
equipment or that fall out with loose rock. Sergent, HM 11. Freedom committed 70 such violations
during the period from October 2, 2008 through October 14, 2010. Sergent, Sl 11. Likewise,
inspectors regularly find that ribs (which is the term for the mine walls) on coal pillars (large
blocks of coal that support the weight of the earth, or overburden, above the mine) are
deteriorated and separated from the mine roof. This problem is likely to result in a structural
failure with the coal pillar and the roof section that the pillar supports. Freedom received 21
such citations for violations during the period from December 9, 2008 through September 2,
2010. Sergent,f|l 12. ~
At Freedom, inspectors regularly discover that roof falls are not cleaned up and/or re-
supported as needed. Freedom received 19 such citations during the period from October 6, 2008
through October 18, 2010. Sergent, fll 13. Inspectors repeatedly find entries that are mined too
wide to be stable. The width of the entries is critical to the mine roof stability. The maximum




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width is calculated based on the strata above the mine roof. Roof bolts tie the upper strata
together much like a beam. If the operator exceeds the maximum approved width, the beam
formed by the roof bolts will not be strong enough to span the distance between the pillars.
Freedom received 12 such citations during the period from October 14, 2008 through October
18, 2010. Sergent, Sl 14.
Freedom also does not adequately examine the mine roof and strata above the mine.
MSHA safety standards require Freedom to drill test holes into the mine roof to determine the
stability of the overburden. The examiner then either takes a metal tape or stratascope, which is
like a periscope, and checks for separation in upper strata and/or geological formations that
contribute to roof instability. At Freedom, despite the known geological problems with the
overburden, test holes are not performed. Hurley, fl] 17. Freedom received 9 such citations for
violations during the period from October 8, 2008 through April 9, 2010. Sergent, Sl 15. Freedom
also fails to clearly mark or delineate areas of unsupported roof. Operators must mark the last
row of roof support to prevent travel in these dangerous areas. Sergent, Sl 16.
The roof conditions at Freedom are not improving. Six roof falls occurred between
August 11, 2010, and October 18, 2010, but only 4 were reported to MSHA. Hurley, fll 20. On
September 11, 2010, the mine roof fell over the feeder and shuttle cars in a working section of
the mine. Declaration of David Ison, fll 75; Hurley, fll 22. Fortuitously, this section was
evacuated prior to the fall due to a power outage. Hurley, Sl 22. When the miners returned to the
section after power was restored, they discovered a fall 40 feet long and 8 feet thick. Hurley, Sl
Q. But for the evacuation, miners would have died. During MSHA’s investigation of the fall
later that day, an additional 40 feet of rock fell over the beltline. Hurley, HM 27.'




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B. Methane Liberation and Ventilation at the Mine
Methane is the most common explosive gas found in mines. Freedom liberates an
extensive amount of methane - approximately 1,800,000 cubic feet every 24 hours. Sergent, fll
Q; Ison, fll 12; Justice, HM 7; and Poynter, HM 12. The volume released at this mine requires
MSHA to conduct spot inspections of the mine’s ventilation system at least every 5 days (in
addition to the mandatory quarterly inspections). 30 U.S.C. § 813(i). Freedom has one of the
highest rates of methane liberation for the district. Justice, fl] 7; Sergent, 3119.
Methane is a colorless, odorless gas that, when mixed with oxygen in the right amount,
will explode when ignited. Declaration of Danny R. Deel, SM 5; Justice, fll 4. The mine atmosphere
falls within the explosive range for methane when the methane is found in concentrations
between 5% and 15%. Justice, HM 4; Deel, fll 5. Thus, an explosion can occur in an underground
mine, like Freedom, when there is a methane concentration of 5% to 15% and the presence of an
ignition source. Common forms of ignition sources in underground coal mines include sparks
created by falling rock, sparks created by the continuous miner as the metal rotating drum bit
comes into contact with the coal or rock in the coal seam, electrical shorts, or flames generated
by heat or friction. Justice, Hi 16; Sergent, Els 22, 31, 40.
Mine ventilation removes methane and gases through air courses that direct air current
through the mine. Sergent, Sl 17. The velocity and quantity of air required in the entry is set out
in the ventilation plan. Freedom fails to continuously maintain ventilation at the working face,
or provide sufficient air velocity at the face. Freedom received 33 such citations during the
period from October 8, 2008 through August 16, 2010. Sergent, Hi 21. Freedom violates the
ventilation requirements of its approved plan in many other ways, including failing to provide
line curtains, failing to properly hang line curtains, failing to provide appropriate brattice, failing




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to maintain the air flow in the proper direction, failing to maintain seals, failing to maintain
airlock doors, and the improper use of blowing ventilation. A
Curtains hung from inside each entry into the last open crosscut direct the air into each
working entry at the mining face. These curtains, referred to as line curtains, provide the air that
sweeps methane away from the areas where miners work. If the line curtain is not maintained as
required, methane may accumulate and reach explosive levels, even in entries where no work is
being performed. At Freedom mine, the line curtains are not always present or hung as required
by the approved ventilation plan. Freedom received 9 citations for violations for similar issues
during the period from October 28, 2009 through September 2, 2010. Sergent, HM 20.
Inspectors frequently discover that the brattices are not present where required, are
allowed to deteriorate, or are not plastered correctly. Permanent brattices, otherwise known as
stoppings, are dry stack block walls built between blocks of coal to separate air courses. The
placement of each brattice wall is marked on a map included in the ventilation plan approved by
the District Manager. Brattices are plastered to prevent air from leaking through the wall. Wood
wedges and boards are placed on top of the brattice to seal any area between the brattice top and
the mine roof. Any exposed wood must be covered by plaster to eliminate combustible
materials. Freedom received 41 citations for violations for brattice issues during the period from
October 1, 2008 through July 21, 2010. Sergent, HM 23.
At times, Freedom allows air to travel in the wrong direction in the various air courses
including the bleeder system and along the belts. “Bleeder” entries refer to air courses developed
and maintained to continuously move air-methane mixtures away from the active workings and
into mine-return air courses. Monitors set at designated points along the belt detect carbon
monoxide in the atmosphere. These monitors only function correctly if the ventilation on the




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belt meets minimum velocity and directional requirements. If a fire starts on the beltline, the
carbon monoxide (CO) produced by the fire will cross a sensor located in the airway over the
belt. The delay time from the initial carbon monoxide production until the sensor alarm sounds
depends on the speed and quantity of air on the beltline. Sensor locations are based on a
calculated 20-minute maximum interval for a set atmosphere to reach the monitor. If the air
travels too slowly, the minimum time for the CO to reach the sensor is extended. If the air is
traveling in the wrong direction, an explosion at a working face may propagate to the other
working areas of the mine or a belt fire may spread faster. Freedom received 9 citations for
violations of this condition during the period from October 15, 2008 through October 19, 2010.
Sergent, fll 24.
Freedom often fails to maintain seals. Seals are walls of block constructed to maintain a
separation between unventilated areas of the mine which may contain high amounts of methane
and low amounts of oxygen from the active workings of the mine. The seals allowed the methane
and other noxious gasses to leak from worked out areas into the active workings. Freedom
received 8 violations for improper seals between February 2, 2009 and March 18, 2010. &rg@,
Hg
Freedom frequently endangers employees by failing to maintain airlock doors or allowing
doors to open simultaneously. Airlock doors allow travel between 2 air courses. Two sets of
doors are installed with an airlock between them. Only 1 set of doors may be opened at a time.
This prevents the dangerous mixing of air between separated air courses. Airlock doors were
either opened simultaneously or were not maintained in working condition. Freedom committed
18 violations for this condition between December 15, 2008 and September 24, 2010. Sergent, fll
&




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The approved ventilation, methane and dust control plan for Freedom prohibits the use of
a blowing line curtain during the operation of the continuous miner. Blowing face ventilation
refers to the placement of the line curtain in relation to the continuous miner and the miner
operator. Blowing curtains allow the dust created during mining to flow to the return behind the
line curtain where miners stand and work. Blowing line curtains fail to keep dust levels low and
fail to sweep the face of methane accumulations at Freedom. Inspectors have fotmd that the
operator used blowing curtains during the cuts that connect two entries on several occasions.
Sergent, fll 27.
In addition to the many ventilation hazards described above, Freedom failed to obtain an
approved map prior to mining within 300 feet of a gas well, failed to submit a supplement to the
ventilation plan after completing a sequence to show ventilation of a panel, failed to conduct air
readings at proper locations on retum entries, failed to use the proper size scrubber screen in
mining equipment which could compromise its ability to remove coal dust from the atmosphere,
failed to maintain the dust collections system on a roof bolter, compromising its ability to control
dust created during the roof bolting process, failed to gain approval for Ventilating an area prior
to mining and failed to follow the ventilation plan’s requirements for a ventilation control called
a regulator on a belt. Sergent, HM 28.
C. Dust Accumulations and Belt Maintenance
During the active mining process, coal is removed from the mine by way of haulage
belts. Coal spillage is normal at the face and along the moving belts. The mining process also
produces various sizes of small coal particles described as “coal fines” or “float coal dust”
depending how fine the coal particle is. Float coal dust deposits are fotmd on the surfaces of
mining equipment, on the ribs and floor of the mine itself and inside equipment on the belt




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through any small opening. Float coal dust is easily raised into suspension in the air during an
explosion. Dust in suspension is a grave danger during mining. If an ignition or explosion
occurs, any dust in suspension will increase the explosive force. Sergent, HM 29.
Freedom frequently fails to remove dust and other combustible materials in a timely
fashion at the face of the mine. Freedom was cited 10 times for this condition during the period
from October 2, 2008 through April 6, 2010. Sergent, Sl 30. Float coal dust is routinely
discovered on Freedom’s beltlines, in working entries and inside electrical installations. Freedom
was cited 181 times for this violation between October 15, 2008 and October 20, 2010. Sergent,
Sli Belt lines where coal and other combustible materials accumulate create dangers involving
stuck or frozen rollers, and hangers rubbing on the belt and belt structure. Any accumulations
which contact the belt or supporting structure create a heat source due to frictional rubbing.
Inspectors frequently find accumulations of combustible materials on the beltline, stuck or frozen
rollers or other belt related heat and combustion sources. Freedom committed 32 violations for
this condition during the period from November 7, 2008 to October 19, 2010. Sergent, fll 31.
Coal, loose coal, coal dust and engine oil accumulated on equipment prevent the motors from
performing correctly. If excessive accumulations are present, the motor may overheat and exceed
the manufacturer’s recommendations. This condition creates a heat source for ignitions and
explosions at the face. At Freedom, inspectors find such accumulations on equipment on a
frequent basis. This condition was cited 77 times between October 14, 2008 and October 20,
2010. Sergent, Sl 32.
At Freedom, water sprays are frequently missing or inoperative on the continuous miner
and on the belts. Water sprays are used at the point of coal mine extraction and at transfer points
to keep coal dust from lifting into the air which will increase any potential explosion. Each




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continuous miner and each belt transfer point is required to be noted in the mine’s ventilation
plan and to have a set number of water sprays with an approved water pressure and spray head
size. These produce a mist of water that keeps the coal dust under control and prevents sparks
produced by the continuous miner bits from igniting any fuel source such as coal dust or
methane. Freedom received 12 citations from August 25, 2009 through August 17, 2010 for its
failure to maintain water sprays. Sergent, fll 22.
MSHA continues to find hazards. In its most recent inspection, for example, Freedom
was again cited for float coal dust accumulations. Additional accumulations were found along
the number 21 belt line. Declaration of David Hardin, HM 6. In addition to damaged rollers, the
number 20 belt line had loose coal and coal fines along both sides of the belt. Hardin, flls 7 - 8.
Fallen pieces of draw rock were found along the number 20 belt line. Hardin, fll 10.
Additionally, a corner of a coal pillar at the belt feeder was sheared off 6 feet wide and 6 feet
long. Hardin, Sl 11. This condition was found in an area where miners nonnally work and travel.
Hardin, Sl 11.
D. Electrical Equipment p
All electrical installations and equipment underground must be properly examined, used,
and maintained to prevent exposure to shock or electrocution, but also to avoid creating a heat
source which could ignite fires or cause explosions. When MSHA inspects Freedom’s mine,
MSHA routinely finds improperly spliced power cables, manipulated circuit breakers, unguarded
high voltage cable, the use of non-permissible equipment, and the failure to examine electrical
equipment.
Mine equipment is powered either by batteries or by electrical power supplied through
cables stretching through the mine to a power center located on the section. The large power




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cables have inner and outer insulating jackets to prevent persons handling the cables from
contacting electrical power and also to prevent the cable from faulting and providing a heat
source for fires or explosions. Cables are mended through the use of splices. These splices are
required to be protected to the same degree as the original cable shielding. At Freedom, cable
and splices are often found to be inadequate. Freedom received 43 citations for failure to
maintain cables and bad splices during the period from October 2, 2008 through October 20,
2010. Sergent, f|l 35.
Freedom frequently fails to maintain other electrical equipment or installations in the
appropriate condition as well. Freedom received 58 citations for this condition between
December 9, 2008 and October 20, 2010. Sergent, fll 36. For example, inspectors often discover
that Freedom sets circuit breakers at limits that are too high or too low for the equipment, or that
the circuit breakers are inoperative. The power source for electrical equipment has a set of
circuit breakers and ground wires that prevent the equipment from overheating. The circuit
breakers prevent the amperage on the equipment from exceeding set limits. Equipment operators
and others unfamiliar with electricity have increased the amperage on the breakers in an attempt
to prevent the equipment from shutting off due to frequent ground faults. This is done by use of
a screw driver at the breaker and is a fairly easy, though illegal and dangerous, operation. When
inspectors find that breakers are set too high, it is often evidence of other more serious problems
with the electrical equipment. Those problems create a heat source for ignitions and explosions
if a fuel source such as loose coal or methane is present. Freedom received 43 citations for this
condition between October 2, 2008 and September 29, 2010. Sergent, Sl 37.
At Freedom, circuit breakers are frequently mislabeled or not labeled at all. Circuit
breakers perform 2 functions. First, they shut down equipment during a ground fault. Second,




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they provide a method for cutting off power to equipment or installations during maintenance or
during emergencies. Each breaker and plug must be accurately labeled to identify the equipment
that it controls. Freedom committed 22 violations of this condition between October 15, 2008
and September 2, 2010. Sergent, fll 38. High voltage cables must be guarded to prevent them
from touching other cables and producing an electrical arch, which is a heat source. The cable
must also be guarded to prevent miners from contacting it. At Freedom, high voltage cables
frequently are not guarded. Freedom received 15 citations for violations between January 15,
2009 and September 15, 2010. Sergent, fll 39.
The compartments housing electrical components for equipment and installations located
near the working face must not contain any sparks or potential heat source to prevent the
possibility of ignition or explosion. Only approved equipment constructed to contain potential
heat sources and prevent explosions is allowed within the last open crosscut (this equipment is
known as “pennissible”). If there is a gap in the compartment seal or a broken piece, the
equipment is in violation of the pennissibility regulations. At Freedom, the danger is higher
because of the high methane liberation. Inspectors regularly find equipment that does not comply
with the permissibility regulations. Freedom committed 25 violations of this condition between
January 20, 2009 and October 20, 2010. Sergent, fll 40.
Freedom’s failure to use permissible equipment, the practice of improperly splicing
power cables, manipulating circuit breakers, and failure to guard high voltage cables leads to the
conclusion that Freedom does not properly examine the electrical equipment at the mine. If
Freedom were properly inspecting its own mine, it would detect, and correct, these violations
and hazardous conditions.




u
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E. MSHA’s Attempts Outside of Enforcement Actions to Obtain Compliance
MSHA Coal Mine Safety and Health District 6 has made numerous and sustained
attempts to resolve the core problem-habitually continuing violations-at Freedom. The
Acting District Manager, James Poynter, has held discussions with upper mine management
during a 3 year period because of the recurring roof problems, ventilation and dust control issues,
coal accumulations, electrical equipment maintenance, and inadequate examinations. Po§@ter, flls
 . MSHA inspectors have also conducted a number of meetings with Freedom regarding
compliance with standards related to coal accumulations, roof control, electrical equipment, and
ventilation. Ison, Els 20 - 77. For instance, in October 2008, an MSHA inspector met with a
mine foreman to discuss roof support efforts after 4 roof falls had occurred that month. Qi
Q. In April 2009, MSHA met with Mine Superintendent J. J. Pinson, who said Freedom would
do a better job of cleaning dust in the mine. Ison, Sl 24. The next day, Mr. Pinson reported he
had meetings with all 3 crews on the 001 working section about dust accumulations. Ison, fll 24.
However, the following day, the inspector found accumulations at a running belt; the condition
was written in the pre-shift examination book but was not cleaned up. Ison, fl] 25. On February
5, 2010, MSHA personnel met with Freedom mine management to discuss the need for
continuous face ventilation. Ison, HM 54. On January 8, 2010, the Field Office Supervisor,
William Sergent, and other inspectors met with Mr. Pinson, Mine Manager Kevin Varney, and
President Charles Bearse to discuss the problems with ventilation controls, face ventilation
practices, and methane monitor problems. Ison, Sl 52. On February 24, 2010, William Sergent
discussed the continued habit of examiners to leave dangerous conditions Lmreported and
uncorrected with a mine foreman, indicating higher enforcement would be used to achieve
compliance. Ison, fll 55.




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In addition to the multiple meetings with mine management, inspectors routinely talk to
miners and foremen about the citations and orders they issue and best practices to avoid future
dangerous situations. Despite numerous discussions with MSHA representatives, Freedom
continues to fail to comply with the mandatory health or safety standards. As can be seen by the
citation history mentioned above and in the accompanying declarations, violations for hazards in
the areas of roof control, ventilation, coal dust accumulations, and electrical equipment are found
on a continuing basis at the mine.
ARGUMENT
This Court should issue a preliminary injunction because Freedom does not appear to
follow basic safety rules when an MSHA inspector is not at the mine. If the Court does not
intervene, someone will be seriously injured or die. Freedom is subject to Mine Act jurisdiction
and is engaged in a pattern of violation of mandatory safety or health standards, which
constitutes a continuing hazard to miners. The Secretary’s requested relief is directed toward
those conditions that make Freedom’s mine hazardous, and is designed to cure Defendants’
pattern of violation and ensure that the violations at the mine do not recur.
I. FREEDOM IS COVERED BY THE FEDERAL
MINE SAFETY AND HEALTH ACT OF 1977
Section 4, 30 U.S.C. §803, of the Mine Act provides that “Each coal or other mine, the
products of which enter commerce, or the operations or products of which affect commerce, and
each operator of such mine, and every miner in such mine shall be subject to the provisions of
this Act.” Section 3(b) of the Mine Act defines “commerce,” which has been held to include
completely intra-state activity. 30 U.S.C. §802(b); D.A.S. Sand & Gravel, Inc., v. Chao, 370
F.3d 309, 314 (2“d Cir. 2004). Section 3(h)(1), 30 U.S.C. §802(h)(1), of the Mine Act provides
that a “coal or other mine” includes any area of land from which minerals are extracted in
21


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nonliquid form,” including coal preparation plants. Section 3(d), 30 U.S.C. §802(d), of the Act
defines an “operator” as “any owner, lessee, or other person who operates, controls, or supervises
a coal or other mine or any independent contractor performing services or construction at such
mine.”
Freedom is an underground coal mine in Pike County, Kentucky, operated at all relevant
times by Freedom Energy Mining Company. Poynter, Sl 3. Freedom Energy Mining Company is
a subsidiary of, or a trade name of, Sidney Coal Company, Inc., a Kentucky corporation.
Poynter, HM 3. Sidney Coal Company was also an operator of Freedom at all relevant times.
Poyggter, HM 3. Therefore, Freedom is a “coal or other mine” within the meaning of Section 3(h) of
the Mine Act, 30 U.S.C. §§802(d) and 802(h), the products of which entered commerce, or the
operations or products of which affected commerce within the meaning of Sections 3(b) and 4 of
the Mine Act, 30 U.S.C. §§802(b) and 803. Moreover, Freedom Energy Mining Company and
Sidney Coal Company, Inc. are “operators” of Freedom within the meaning of Section 3(d) of
the Mine Act, 30 U.S.C. §802(d).
II. FREEDOM IS EN GAGED IN A
PATTERN OF VIOLATION OF MANDATORY
HEALTH OR SAFETY STANDARDS WHICH
CONSTITUTES A CONTINUING HAZARD TO MINERS


A. The Legal Standard for Determining a Pattern of Violation Which
Constitutes a Continuing Hazard to Miners
Section 108(a)(2) provides that the Secretary may seek injtmctive relief whenever she
“be1ieves” that the operator of a coal or other mine “is engaged in a pattern of violation” of
mandatory health or safety standards of the Mine Act, which, in the Secretary’s “judgment,”
constitutes a continuing hazard to the health or safety of miners. The Mine Act does not defme
the terms “pattern” or “continuing hazard.” An agency’s interpretation of a statutory term is
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entitled to deference under Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 843 (1984), if Congress explicitly or implicitly delegated to the Secretary the authority to
interpret that term. American Bar Association v. Federal Trade Commission, 403 F.3d 457, 469
(D.C. Cir. 2005). An agency is entitled to  r_ deference even though its interpretation is
less formal than notice and comment rulemaking. Barnhart v. Walton, 535 U.S. 212, 221 (2002);
Q @ Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (Secretary of
Labor’s litigation position before the Federal Mine Safety and Health Review Commission is
entitled to deference). In relying on the Secretary’s “belief” as to whether a “pattern” of
violation exists, and in relying on the Secretary’s “judgment” as to what constitutes a
“continuing hazard” to the health or safety of miners within the meaning of Section 108(a)(2), 30
U.S.C. §818(a)(2). Congress necessarily delegated to the Secretary the authority to interpret the
meaning of the terms “pattern” and “continuing hazard.” Given that delegation of authority, and
the Secretary’s expertise in Mine Act enforcement, courts must defer to the Secretary’s
reasonable interpretation of the terms “pattern” and “continuing hazard” in Section 108(a)(2), 30
U.S.C. §818(a)(2).
1. Defining a “Pattern”
Absent a statutory definition, the Court must “start with the assumption that the
legislative purpose is expressed by the ordinary meaning of the words used.” Walker Stone
Company, Inc. v. Secretary of Labor, 156 F.3d 1076, 1081 (10'h Cir. 1998); Indiana Michigan
Power Company v. Department of Energy, 88 F.3d 1272, 1275 (D.C. Cir. 1996). Webster
defines “pattern” as “a reliable sample of traits, acts, or other observable features characterizing
an individual (behavior ~) .... ” Webster’s Third New International Dictionary, 1657 (2002). A
“pattern” is also an “arrangement or order of things.” H.J. Inc. v. Northwestem Bell Telephone




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Q 492 U.S. 229, 238 (explaining “pattern” in the RICO context). In Northwestern Bell
Telephone, the Supreme Court noted that “it is not the number of predicates but the relationship
they bear to each other or to some external organizing principle that renders them ‘ordered’ or
‘a.rranged.’” M. In the Title VII context, the government must prove a “pattern or practice” by
showing that discrimination was the employer’s standard operating procedure, the regular rather
than the unusual practice. International Brotherhood of Teamsters v. United States, 431 U.S.
324, 336 (1977). Isolated, accidental, or sporadic acts are insufficient to establish a pattern or
practice. gl,
The legislative history of the Mine Act provides helpful insight into defining a pattern for
purposes of Section l08(a)(2), 30 U.S.C. §8l8(a)(2), of the Mine Act. “It is expected that the
Secretary shall be able to rely on the violation history of a mine, as demonstrated by previous
inspections, and such other evidence as the Secretary shall have to show the suspected tendency
of the operator in seeking relief under the section.” S. Rep. No. 95-181, 95"‘ Cong. at 39-40
(1977) (emphasis added). A CoLu't may “infer from the repeated discovery of violations at a
mine that the operator of that mine probably regularly permits such violations to occur at times
when the inspector is not present at the mine.” S. Rep. No. 95-181, 95th Cong. at 39 (1977)
(emphasis added). The legislative history uses such terms as “chronic” and “habitual” violators
and violations. S. Rep. No. 95-181, 95‘h Cong. at 39 (1977).
2. Defining a “Continuing Hazard”
In the context of Section 108(a)(2), a “continuing hazard” means a threat to the safety of
miners now and in the future, based on the evidence established by an operator’s “pattern of
violation.” The Federal Mine Safety and Health Review Commission has interpreted the term
“hazard” under the Mine Act, albeit in a context other than Section 108(a)(2). According to the




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FMSHRC, a “hazard” “denote[s] a measure of danger to safety or health.” National Gypsum, 3
FMSHRC 822, 827 (April 1981). For purposes of this case, the Secretary adopts this definition
of a “hazard.”
The concept of “continuing” contemplates a prospective focus on preventing future injury
to miners, as opposed to a retroactive focus on punishing the operator’s past misconduct. A
number of sources support this view. First, the ordinary understanding of the word “continuing”
suggests a prospective focus. For example, Webster defines “continuing” as “continuous [or]
constant,” and defines “continuous” as “stretching on without break or interruption.” Webster’s
Third New International Dictionary, 493, 494 (2002). The term “continue” means “to be
steadfast or constant in a course or activity: keep up or maintain esp. without interruption a
particular condition.” Q. at 493. Second, the legislative history of Section 108(a)(2) of the Mine
Act suggests a prospective view. The Senate report, for example, observed that Section
108(a)(2) was designed to “enable the Secretary to deal with the habitual or chronic violator . . .
who has demonstrated over a period of time that other available enforcement tools will not
encourage his compliance with the spirit and the letter of the . _ _ law.” S. Rep. No. 95-181, 95th
Cong. at 39 (1977). In addition, the Senate report lamented the “narrow reading of the
‘Lmwarrantable failure’ sanction” under the 1969 Coal Act, noted that the putative Mine Act
needed an enforcement tool to ensure an operator’s continued compliance “after the abatement of
the actual violations observed,” and sought “to deal with this gap in enforcement” by providing a
“remedy to close mines.” S. Rep. No. 95-181, 95th Cong. at 39 (1977). Third, a prospective
focus is consistent with the use of the term “continue” in other legal contexts. For example, in
RICO cases, the term “continuity” refers to past conduct only to the extent that it “projects into
the future with a threat of repetition.” H.J. Inc. v. Northwestern Bell Telephone Co. 492 U.S.




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229, 241 (1989).
3. The Secretary’s Interpretations
Are Entitled to Deference
In this case, the Secretary has relied on precisely the kinds of evidence contemplated by
the legislative history to conclude that Freedom regularly and habitually permits safety violations
to occur at the mine. The Secretary’s case is amply supported by the inspection history of the
mine, the mine’s history of roof falls, accidents, and injuries, and the declarations of 7 MSHA
officials, all of whom are intimately familiar with Freedom’s inspection history, and 6 of whom
have personally inspected the mine and have observed the unsafe conditions first-hand.
Therefore, the Secretary’s belief that Freedom is engaged is a pattern of violation is reasonable,
and her interpretation of the term “pattern” in this case entitled to deference. In addition, the
Secretary’s judgment that Freedom’s pattern constitutes a “continuing hazard” to miners is
reasonable, and her interpretation of the term “continuing hazard” in this case is entitled to
deference. & Barnhart v. Walton, 535 U.S. at 221; American Bar Association, 403 F.3d at 469;
Excel Mining, 334 F.3d at 6.
B. Freedom’s Pattern of Violation Constitutes a
Continuing Hazard to Miners
Freedom is clearly engaged in a pattern of failing to examine and maintain the mine in 4
critical spheres of safety: 1) failure to protect the roof, face, and ribs from falls and maintain an
effective roof control plan; 2) failure to effectively ventilate the mine of methane, dust and other
noxious and explosive gases; 3) failure to clear the mine of excessive accumulations of coal dust;
and 4) failure to properly examine, test, and maintain electrical equipment so as to protect
against fire or explosion. The evidence amply supports the conclusion that these failures are not
isolated, sporadic, or infrequent, but are Freedom’s routine, standard practice. Between July 1,




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2008 and September 30, 2010, MSHA cited Freedom 1,952 times for violations of safety
standards. Of these, approximately 643 (33%) were for violations of just 6 safety standards:
failure to support the roof of the mine (30 C.F.R. Parts 75.202(a) and 75.220(a)(1)), failure to
properly ventilate the mine with sufficient fresh air (30 C.F.R. Part 75.370(a)(1)), failure to clean
up excessive coal dust and other combustible materials (30 C.F.R. Part 75.400), and failure to
properly examine, test, and maintain electrical equipment (30 C.F.R. Parts 75.503 and 75.512).
Poynter, Sl 8. The breadth and scope of these violations reveals far more than the minimal
“suspected tendency” contemplated by the legislative history of the Mine Act - these violations
reveal a corporate climate where violation of the law is the standard operating procedure.
Freedom’s pattern of failing to examine and maintain the mine in a safe condition will
likely result in injury or death to miners. In addition to the hazardous conditions created by
individual violations, the inter-relationship of those conditions and violations resulted in at least
3 situations, in 2010 alone, that were ripe for disaster. In January 2010, the continuous mining
machine was cutting coal without proper ventilation and with visible float coal dust suspended in
the air. Sergent, fll 21. In February 2010, MSHA issued an imminent danger order when
inspectors discovered 13% methane and 18.1% oxygen - a highly volatile and explosive mixture
-- in an entry with inadequate ventilation. Justice, flls 12, 14, and 15. During the impact
inspection in September 2010, MSHA again discovered that Freedom was operating the
continuous mining machine at the working face without proper ventilation. Sergent, Sl 21.
1. Freedom Chronically Fails to Maintain Safe Roof Conditions
During the period between July 1, 2008 and September 30, 2010, MSHA issued at least
190 citations and orders to Freedom for violating the roof control provisions of 30 C.F.R.
§§75.202(a) and 75.220(a)(1), representing 9.7% of all violations issued during this time period.
27


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Poynter, fll 10. These roof control violations are exacerbated by the dangerous coal seam, the
age of the mine, the draw rock, the excessive levels of methane liberated at this mine, and
Freedom’s own practices. During the past two years, 19 roof or rib falls occurred at this mine, 7
of which caused injuries to miners. Deel, fll 9.
Section 75.202(a) requires operators to support the roof in order to protect miners from
hazards related to roof falls. During the period between July 1, 2008 and September 30, 2010,
MSHA issued 141 citations to Freedom for violations of Section 75.202(a). Poynter, fll 10.5
Section 75.220(a)(1) requires operators to develop a roof support plan for the geological
conditions that are unique at that particular mine. During the period between July 1, 2008 and
September 30, 2010, MSHA issued 49 citations to Freedom for violations of Section
75.220(a)(1). Poynter, HM 10.6 Typical examples of Freedom’s violations of its roof control plan
are improper roof bolt spacing, broken or sheared roof bolts, draw rock, lack of test holes,
unsupported leaning loose ribs adjacent to the track, cracked or sloughing unsupported ribs,
separation of immediate roof, deep cuts on the working section, and mining excessive widths of
mine entries. Hurley, H1 17.
Since October 5, 2008, MSHA has knowledge of 19 roof or rib falls at Freedom, seven of
which have resulted in injuries to miners. Deel, fl] 9. On October 10, 2008, a miner suffered a
broken bone in his hand when a piece of draw rock fell from between roof bolts. Ison, fll 17.
Four days later, on October 14, 2008, another miner was hit by falling draw rock. Ison, Sl 18. He
Two other local mines are comparable to Freedom. Sapphire Coal Company’s
Advantage #1 Mine employs 27 persons and produces an average of 199,784 tons of bituminous
coal per year. McCoy Elkhom Coal Corporation’s Mine #15 employs 130 persons and produces
an average of 138,394 tons of bituminous coal per year. During the same time period, MSHA
issued 19 violations of Section 75.202(a) to Advantage No. 1 and 35 violations to Mine #15.
Poynter, HI 11.
5
6 During the same time period, MSHA issued 26 violations of 75.220(a)(1) to Advantage
No. 1 and 20 violations to Mine #15. Pojgter, HI 11.
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missed 2 weeks of work due to his injury from this accident. Ison, fll 18. A larger roof fall
occurred on October 22, 2008, in an area that was mined about 12 months earlier. Ison, Sl 19.
Another roof fall occurred 4 days later on October 26, 2008. Ison, jj 21. There were no injuries
but the fall was in the primary escapeway for the working section. Ison, HM 21. There was another
injury on March 27, 2009, when draw rock again fell on a miner, causing a contusion on his
collar bone. Ison, HM 23. April 13, 2009, saw a roof fall caused by the deterioration of the roof.
Ison, Sl 26. An injury occurred on May 4, 2009, when a miner walking along a track hit loose
rock with his head. Ison, fll 28. The loose rock fell, striking him on his arm and wrist, causing a
wound that needed stitches to close. Ison, Sl 28. A large roof fall occurred on June 23, 2009.
Ison, Hls 31 and 33. A roof fall on September 22, 2009, blocked a bleeder entry, which is used in
ventilation to take methane and other noxious gases away from the mining face. Ison, Sl 40. The
roof fall on October 8, 2009, fell on a high voltage cable, cutting power to the section, Ison, jj 45.
Each of these conditions contributes to the danger of injury from roof falls or rib collapse.
Hurley, HM 17.
The first injury of 2010 at the mine was on J anuaiy 18. Hurley, Sl 18. Here, a miner was
scaling the roof on an intake entry when a piece of the roof fell, knocking him to the floor.
Hurley, HM 18. There was another roof fall on March 30, 2010. Q, HQ. On August 11, 2010,
there was another roof fall. Ison, fll 73; Hurley, Sl 21. It also happened to be in the primary
escapeway--the designated exit for miners to escape in case of a mine emergency--for the 15”
Northeast Submains and the escapeway was completely blocked. Hurley, HM 21. An injury on
August 23, 2010, was caused when a piece of draw rock fell from the roof and landed on the
canopy of an underground forklift, pinching the miner’s hand as he was climbing out of the
forklift, using the canopy to assist himself. Ison, HM 74.




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Consistent with Freedom’s failure to take roof control issues seriously, is its failure to
report all roof falls, or even all roof falls that cause injuries to miners.7 MSHA recently
conducted an audit of Freedom (pursuant to 30 C.F.R. Part 50) and discovered that Freedom
failed to report accidents and injuries at this mine from falling draw rock. Draw rock presents
several dangers. Hurley, Sl 18. Draw rock that is present in areas where miners routinely travel,
such as the belt line and the escapeways, can easily fall and hit anyone traveling in that area.
Hurley, Sl 11. Six roof falls occurred at the mine since August 11, 2010, but Freedom only
reported 4 of them to MSHA. On September 11, 2010, the mine roof fell over the feeder and
shuttle cars on the 001 working section. Fortunately, this section was evacuated prior to the fall
due to a power outage. But for the fortuitous evacuation, miners would have died. This area
was also near another area of poor roof cited by MSHA just 9 days prior during the September
impact inspection. Hurley, Sl 23. During MSHA’s investigation of the fall, an additional 40 feet
of rock fell over the beltline.
Another roof fall injury occtured 2 days later on September 13, 2010. Ison, Sl 76. A
piece of draw rock, 6 inches by 3 inches by % an inch, fell on a roof bolter as he was bolting in
an area on the 001 section. Ison, Sl 76. Just over a week later on September 22, 2010, there was
a large roof fall covering 250 feet, and it was 20 feet wide, and 8 feet thick. Ison, Sl 78; Hurley, Sl
Q. The most recent roof fall was on October 18, 2010. Hurley, Sl 30. A section of roof 40 feet
long that covered almost the entire width of the entry had fallen on the belt. Hurley, Sl 30.
MSHA found that the strata above the mine roof was separated in 3 locations and a crack ran
down the left rib. Hurley, Sl 30.
This mine has historically bad roof conditions, which Freedom chronically fails to
 
7 All operators are required to report unintended roof falls to MSHA “immediately” and
“without delay.” 30 C.F.R. §§50.2(h)(8) and 50.10.
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address promptly and properly. Freedom’s failures have already caused serious injuries to
miners, some of which it has failed to report. Freedom’s roof control practices endanger miners’
lives on a daily basis - by physical contact with falling roof material, by potential explosion
sparked by falling roof, and by blocking escapeways. Thus, the extensive history of repeated
roof falls shows the continuous presence of unsafe, hazardous conditions and practices over a
significant period of time, which constitutes a continuing hazard to miners.
2. Freedom Routinely Fails to Ventilate the Mine
to Control Methane


Freedom routinely fails to ventilate the mine to control methane and other explosive
gases. Section 75.370(a)(1) requires the operator to develop and follow a ventilation plan to
control methane and respirable coal mine dust. 30 C.F.R §75.370(a)(1) During the period
between July 1, 2008 and September 30, 2010, MSHA issued 72 citations to Freedom for
violations of 30 C.F.R §75.370(a)(1). Powter, Sl 10.8 Freedom’s mine liberates an average of
1,800,000 cubic feet of methane during every 24-hour period, and MSHA has encountered
explosive ranges of methane on multiple occasions. Still, Freedom routinely violates basic
ventilation control requirements even though it is on a 5 day spot inspection schedule under
Section 103(i) of the Mine Act, 30 U.S.C. §813(i).
One serious example of the ventilation problems at the mine occurred on February 10,
2010, when MSHA Inspector Stevie Justice was at Freedom Energy with 2 other inspectors,
Danny Pack and David Steffey. Justice, Els 8 and 10. Inspector Pack was carrying a Solaris
multi-gas detector, an instrument capable of measuring a maximum reading of 5% methane.
Justice, HM 13. When Inspector Pack entered the number 5 entry, the alarm on the monitor started
8 During the same time period, MSHA issued 24 violations of 75 .370(a)(1) to Advantage
No. 1 and 40 violations to Mine #15, Poynter,  | 11.
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to sound. Justice, Sl 14. Both Inspector Pack and Steffey took a bottle sample of the air in the
entry. Justice, Sl 14. They discovered the ventilation curtain hanging in the number 5 entry was
not hung properly, causing inadequate ventilation. Justice, Hls 12 and 14. The MSHA inspectors
then issued an imminent danger order, pursuant to Section 107(a) of the Mine Act, 30 U.S.C.
§817(a), for this condition. Justice, Sl 14. Lab results for the bottle air samples revealed a
methane concentration of 13% in an oxygen environment of 18.1%, a highly volatile and
explosive mixture. Justice, Sl 15.
Another example of poor ventilation practices occurred in January 2010, when an
inspector discovered that a line curtain was hung 30 feet behind the scrubber for the continuous
miner, when it should have been hanging only 8 feet behind the scrubber. Sergent, Sl 21.’ The
inspector cited this condition. Sergent, Sl 20. There was also insufficient air velocity in the last
open crosscut: the approved ventilation plan required 6,500 cubic feet per minute, but there was
only 3,733 cubic feet per minute. Sergent, Sl 20. Coal dust was visible in suspension in the air,
and the continuous mining machine was in operation cutting coal in the number 1 entry. @g@,
HIQ. This situation was ripe for disaster: the working section lacked proper ventilation, a fuel
source (coal dust) was in visible suspension in the air, and a piece of electrical equipment (the
continuous mining machine) was cutting coal which could create ignition sources. Sergent, Sl 20.
MSHA cited other violations conditions that prevented miners from obtaining accurate
methane readings. For example, Freedom frequently does not provide examiners with methane
detectors. Sergent, fll 41. Even when Freedom does provide methane detectors, they are often
not properly calibrated. Sergent, Sl 41. A gas detector warns miners when explosive and noxious
gases like methane and carbon monoxide are approaching dangerous levels. Sergent, Sl 41. In
A scrubber is a ventilation control device built into the continuous miner that is
designed to reduce the dust in the air. Sergent,  I 21.
9
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another example, MSHA issued a citation because an area of unsupported roof prevented
methane readings. Sergent, HM 42. Since methane is lighter than air, hand-held extended probes
are sometimes needed to check the air in unsupported areas that could fill with methane
unbeknownst to miners. Sergent, Sl 42. On this occasion, MSHA determined that Freedom did
not provide a probe of sufficient length. Sergent, fll 42.
The impact inspection in September 2010 revealed continuing ventilation problems at the
mine. For example, an MSHA inspector discovered that a line curtain was improperly hung -
the bottom of the curtain was 3 feet above the mine floor. Hardin, fll 15. This created a short
circuit of the ventilation system, taking needed air away from portions of the mine where
explosive gases such as methane may accumulate. Hardin, Sl 15. MSHA issued another citation
when a continuous mining machine was operating in insufficient air flow. Hardin, Sl 15. Just as
in January 2010, the presence of an ignition source, methane in the explosive range due to
improper ventilation, and excessive coal dust is another example of a situation ripe for disaster:
as the continuous mining machine is cutting coal from the seam, its metal bits grind into the coal
and rock, which can spark unpredictably; at the same time, the continuous mining machine is
creating coal dust and the coal is releasing methane with an insufficient ventilating air flow.
Hardin, HM 15.
Ventilation is critical in an underground coal mine, especially when that mine liberates
the amount of methane found at Freedom. Methane is repeatedly found to be in the explosive
range at Freedom, yet Freedom routinely fails to follow its ventilation plan allowing insufficient
air flow to the working sections, line curtains improperly placed, and gas detectors that do not
function properly. These conditions are likely to continue at Freedom, and constitute a
continuing hazard to the health or safety of miners.
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3. Freedom Energy Habitually Allows
Dangerous Accumulations of Combustible Material
An important safety standard is 30 C.F.R. § 75.400, which requires Freedom to prevent
coal dust (and other combustible material) from building up in the mine, and to clean up the
accumulations when they occur. Between July 1, 2008 and September 30, 2010, MSHA issued
289 citations for excessive coal accumulations at this mine, a total of 14.8% of all violations
issued during this time period. Po§@ter, HM 10.10 Coal accumulations serve as a source of “fuel”
that will bum in the event of an ignition.
Excessive coal accumulations can occur throughout the mine, most commonly in and on
equipment, as well as on the floor of the mine. Sergent, HM 29. In 2009, for example, Inspector
Danny R. Deel found coal accumulations on a belt line that were not cleaned up, but scraped
only enough to remove the top layer. Deel, fll 8. According to Inspector Deel this was done to
keep the height of accumulations from contacting the rollers. Deel, Sl 8. Earlier in 2009, coal
dust and float coal dust found on a belt took several miners 35 minutes to clean. Ison, Sl 25.
During the impact inspection of September 2010, combustible float coal dust was found inside
the number 20 belt starter box, which was energized at the time. Hardin, Sl 9. An energized
starter box provides an ignition source and the confined space is a heat source.
There is no doubt that Freedom habitually permits coal dust and other combustible
materials to accumulate in the mine in violation of 30 C.F.R. Part 75.400. These are not isolated
or sporadic occurrences, nor are they minimal amounts of material. In nearly one-third of these
violations, MSHA determined that the coal accumulations were sufficiently dangerous that the
violation was designated S&S. These accumulations of combustible material, especially coal
During the same time period, MSHA issued 149 violations of 75.400 at to Advantage
No. 1 and 29 violations at Mine #15, Poynter, fll 11.
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dust, constitutes a continuing hazard to the safety or health of miners. In addition to its explosive
qualities, coal dust is also the main cause of pneumoconiosis, also known as Black Lung Disease.
Justice, Sl 18. Insufficient ventilation at the working face means that miners who operate the
continuous mining machine, the roof bolter, the shuttle car, and anyone else in the area is
breathing in a cloud of coal dust. Justice, Sl 18.
4. Freedom Repeatedly Fails to Examine, Test ,
And Maintain Electrical Equipment
Freedom repeatedly fails to properly examine, test and maintain electrical equipment,
which increases the likelihood of death or injury to miners by fire, explosion, or shock. Sggg,
Si. During the period between July 1, 2008 and September 30, 2010, MSHA issued at least 92
electrical citations to Freedom for violating the permissibility and inspection standards in 30
C.F.R. §§75.503 and 75.512, which is 4.7% of all violations issued to Freedom during that time.
Poynter, Sl 10.
Section 75.503 requires operators to maintain electric face equipment in “permissible”
condition. “Permissibility” as applied to equipment means that it meets specifications required
by the Secretary for building and maintaining the equipment to assure that such equipment will
not cause a mine explosion or fire. Sergent, Sl 40. During the period between July 1, 2008 and
September 30, 2010, MSHA issued 43 citations to Freedom for violations of this standard.ll
Po§@ter, Sl 10.
Section 75.512 requires operators to ensure that a qualified person examines, tests, and
maintains electrical equipment in safe operating condition. The standard also requires operators
to keep a record of such examinations, and to prevent the use of any equipment that is unsafe.
During the same time period, MSHA issued 55 violations of 75.503 at the Advantage
No. 1 mine and 50 violations at Mine #15. Poynter, Sl 11. `
ll




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During the period between July 1, 2008 and September 30, 2010, MSHA issued 49 citations to
Freedom for violations of this standard. Poynter, Sl 10.'2
This repeated failure to properly examine, test and maintain electrical equipment presents
a continuing hazard to miners in 2 ways. First, miners are individually exposed to the risk of
electrocution from electrical equipment, and collectively exposed to the risk of explosion
because faulty electrical equipment presents an ignition source. Second, the failure to examine
electrical equipment exposes miners to the additional risk potentially dangerous conditions from
equipment that should have been removed from service. Sergent, Hls 40 and 43.
C. Other Enforcement Tools Have Failed
MSHA has diligently attempted to use the available enforcement tools under the Mine
Act to encourage Freedom to comply with the law and ensure the mine is safe, but Freedom has
simply not responded to these efforts. For example, MSHA has issued at least 81 withdrawal
orders to Freedom under Sections 104(d)(1), 104(d)(2), 104(b), and 107(a) since July 1, 2008,
yet the hazardous conditions continue. Sergent, Sl 8.
In addition to using enforcement citations and orders, MSHA officials have made
numerous and sustained informal attempts to resolve the core problems at Freedom - recurring
roof problems, ventilation and dust control issues, coal accumulations, electrical equipment
maintenance, and inadequate examinations. Ison, flls 20 - 77; Sergent, Sl 5. During every regular
inspection, for example, MSHA Inspectors always talk to miners and foremen about any
citations and orders that are issued, as well as best practices to eliminate hazards in the future.
Ison, Sl 27. In October 2008, for example, an MSHA inspector met with a mine foreman to
discuss roof support efforts after 4 roof falls had occurred that month. Ison, Sl 20. MSHA
 
During this same time period, MSHA issued 10 violations of 75.512 at the Advantage
No. 1 mine and 15 violations at Mine #15. Poygter, f|[ 11.
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officials have also reached out to high-level company officials, as well. In April of 2009, MSHA
met with Mine Superintendent J. J. Pinson about excessive coal dust, but an MSHA inspector
retumed just days later and issued coal dust violations. Ison, fljs 24 - 25. On January 8, 2010, the
Field Office Supervisor William Sergent and other inspectors met with Mr. Pinson, Mine
Manager Kevin Varney, and company President Charles Bearse to discuss the problems with
ventilation controls, face ventilation practices, and methane monitor problems. Ison, HM 52. On
February 5, 2010, MSHA personnel met with Freedom mine management to discuss the need for
continuous face ventilation. Ison, Sl 54. On February 24, 2010, William Sergent discussed with a
mine foreman the continued habit of examiners leaving dangerous conditions unreported and
uncorrected. He indicated to the foreman that higher enforcement would be used to achieve
compliance. Ison,f]l 55.
Citations and orders, informal discussions between inspectors and foremen during every
regular inspection, and periodic conferences with higher-level Freedom officials have proved
fruitless. Freedom has allowed these dangerous conditions to exist at the mine for the past 2
years. While Freedom must achieve abatement for every violation found by MSHA under the
Mine Act, Freedom has made little or no attempt to prevent hazards from recurring or to prevent
repeated violations of safety and health standards that expose miners to hazardous conditions.
This is precisely the type of unsafe work environment that section 108(a)(2) was designed to
address. In the Secretary’s judgment, absent judicial intervention, Freedom will not support the
roof, Freedom will not properly ventilate the mine, Freedom will not clear the mine of excessive
coal dust and other combustible materials, Freedom will not maintain electrical equipment,
Freedom will not conduct all the necessary workplace examinations, and Freedom will not report
all accidents and injuries to MSHA. As a result, miners will continue to be struck by falling roof




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and exposed to the risk of explosion when MSHA is not on the mine property.
III. A PRELIMINARY IN,|UNCTION IS NECESSARY
TO PROTECT FREEDOM’S MINERS FROM
ACCIDENTS, INJURIES, AND DEATH
Section 108(b) of the Mine Act, 30 U.S.C. §818(b) provides for a broad range of
potential remedies that are tailored to the particular circumstances at the mine. In the present
case brought under Section 108(a)(2), the Mine Act provides that “the court shall in its order
require such assurance or affirmative steps as it deems necessary to assure itself that the
protection afforded to miners under this Act shall be provided by the operator.” 30 U.S.C.
§818(b). The legislative history of the Mine Act clearly contemplates mine closure as one of
those remedies. S. Rep. No. 95-181, 95th Cong. at 39 (1977). Freedom’s pattern of violation
constitutes a continuing hazard to the health or safety of the miners working there, and therefore
creates sufficiently dangerous conditions such that this Court must issue a preliminary injunction
to order Freedom to close its mine. and take specific actions to eliminate the continuing hazard
before the mine is reopened.
A. The Court Must Order Freedom To Close the Mine Until Freedom Corrects
All Hazardous Conditions and Establishes a Safety and Health Management
Program That Will Eliminate the Continuing Hazards


Before reopening the mine, Freedom must correct all hazardous conditions in the mine.
At the same time that the mine is correcting the hazardous conditions, Freedom must submit and
MSHA must approve a comprehensive safety and health management program for the mine. This
safety and health program will serve to assure this Court that the protections afforded miners
under the Mine Act shall be provided by the mine operator. This safety and health program
should 1) establish and maintain an effective training and communication program; 2) the
program should provide that the highest-level management officials of Freedom must personally
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conduct certain additional examinations of critical equipment and areas of the mine; 3) Freedom
must ensure that additional air readings are taken in specific areas of the mine; 4) when MSHA
finds any violation of the roof control, ventilation, electrical or coal dust standards, Freedom
must immediately withdraw all miners from the working section in which the violation is found;
and 5) Freedom must pay any miner who is idled by any closure or withdrawal of the mine,
because miners should not bear the cost of Freedom’s recalcitrance. Poyggter, flls 23 - 33.
Freedom must correct all hazardous conditions in the mine before the mine is reopened.
Poynter, fll 23. When Freedom believes it has done so, the Secretary will conduct an inspection
of the entire mine and report to the Court the results of her inspection.
Freedom must submit a comprehensive safety and health management program to MSHA
for its approval before the mine is reopened. The conditions in Freedom’s mine urgently need a
training and communication program. At a minimum, the training aspect should include training
on how to recognize hazardous conditions (including the requirements of the examination
standards), to whom such conditions can and should be reported, and the company’s
responsibility to correct such conditions. The communication aspect of the program should
include, at a minimum, daily meetings between and among miners and mine management to
discuss, and establish an action plan for correcting any hazards found at the mine. It was the
intent of Congress that mine operators have the primary responsibility to prevent unsafe and
unhealthful conditions in their mines, but also to have the assistance of miners to achieve this
result. Mine Act Section 2, 30 U.S.C. § 801(e). Upper mine management should establish an
action plan setting forth how it will proactively look for hazards in the mine and how the
company will abate those hazardous conditions it finds, including the consideration of
administrative and/or engineering controls. Poynter, Sl 24.




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As part of the comprehensive safety and health management program specific individuals
at the mine should conduct additional examinations of specific areas of the mine or equipment.
For example, the mine superintendent should personally examine each working section once per
shift, and he should further travel at least 50% of all active belts each week, so that 100% of the
belts are examined every two weeks. The mine superintendent is the person in charge of
resources for the mine, and needs to take ownership of the lack of leadership on all issues
concerning basic mine maintenance. In addition, the Chief Electrician or his equivalent should
personally countersign all books and records relating to inspection of electrical installations and
equipment, including daily pre-operational examinations of all equipment available for operation
during any working shift. All required electrical examinations that refer to “weekly” exams
should all be conducted every 7 days. All of these additional inspections should be properly
documented. Poynter, Sl 25.
When the mine is reopened, specific individuals should take additional air readings. For
example, prior to advance mining of each cut, an air reading (quality and quantity) should be
taken and recorded. When a miner sets over, and prior to any sump, another air reading (quality
and quantity) check should be taken and recorded. These additional requirements will serve as a
check and balance to evaluate the effectiveness of the ventilation process.
When the mine is reopened, Freedom should withdraw all miners from the working
section in the event of MSHA finding any hazardous condition or any violation related to
specific roof control, ventilation, coal dust and other combustible materials, and electrical
standards. Since Freedom’s pattern of violation shows that it is unaffected by withdrawal orders
under Sections 104(b) and 104(d) of the Mine Act to improve the hazardous working conditions,
this Court should require the withdrawal of all miners from the entire working section (except for




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those persons listed in section 104(c) of the Mine Act) for any hazardous condition or violation
anywhere on that working section until such condition is abated. Poynter, fll 29.
If miners are idled as a result of any closure or withdrawal, Freedom should pay those
miners their normal wage during the period of idleness. The miners have not created the
conditions leading to their withdrawal, and therefore they should not have to bear the cost of that
withdrawal. Miners have commented to MSHA that they do not report unsafe conditions that
could result in closure orders because they are sent home without pay. Poynter, HM 30. Payment
of idled miners serves 2 additional purposes: it will encourage miners to report safety hazards,
and it will encourage Freedom to find and correct hazards.
The foregoing assurances and affirmative steps to ensure the protection of Freedom’s
miners are set forth in greater detail in the Secretary’s Complaint. These specific measures
should be in place for a period of 1 year, or until such time during that year that Freedom
receives no S&S violations of any mandatory safety or health standard during an inspection of
the mine in its entirety. Poynter, HM 34. Freedom has habitually abrogated its duties under the
Mine Act, and only a period of this duration, or a clean inspection of the mine, is sufficient to
prove that Freedom has established a corporate culture of safety.”
B. The Secretary is Entitled to a Preliminary Injunction
When considering a request for preliminary injunctive relief, a court must balance
whether: (1) the Secretary has a strong likelihood of success on the merits, (2) the Secretary
would suffer irreparable harm without the injunction, (3) issuance of the injunction would cause
substantial harm to others, and (4) the public interest would be served by issuance of the
injunction. gag, gg, Tumblas v. Cramer, 399 F.3d 754, 760 (6th Cir. 2004). Those factors are
 
13 The Secretary is still seeking a permanent injunction restraining Freedom from
violating the provisions of Section 108(a)(2) of the Mine Act, 30 U.S.C. §818(a)(2).
4 1


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to be balanced; they are “not prerequisites that must be met.” United States v. Edward Rose &
gig, 384 F.3d 258, 261 (6th Cir. 2004). All those factors weigh in favor of granting preliminary
injunctive relief here.
1. The Secretary is likely to succeed on the merits
The Secretary has a strong likelihood of success on the merits. The likelihood of success
is simply the likelihood that the Secretary will be able to prove the substantive elements of her
case on the merits. See, e.g., Edward Rose, 384 F.3d at 262-63. As discussed above, the
Secretary has compelling evidence on those 2 substantive elements: Freedom is engaged in a
pattern of violation that constitutes a continuing hazard to the safety or health of Freedom’s
miners.
2. Miners will suffer irreparable harm if injunctive relief requested by
the Secretary is not granted
To demonstrate irreparable harm, the Secretary must show that absent an injunction, there
will be “actual and imminent” harm, rather than harm that is speculative or unsubstantiated.
Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). As discussed above, Freedom’s
pattern of violation has exposed, and continues to expose, its miners (on whose behalf the
Secretary seeks the injunction) daily to the hazards of roof falls, all associated dangers of
inadequate mine ventilation and the imminent chance of mine explosions causing injury and
fatalities, as well as hazards from electrical equipment lacking proper examinations and
maintenance.
3. Issuance of an in|°unction will not cause substantial harm to others
The issuance of a preliminary injunction will not cause substantial harm to others.
Money, time, and energy expended to comply with an injunction “are not enough” to establish




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substantial harm, Edward Rose & Sons, 384 F.3d at 264, especially where -- as here -- the party
to be enjoined knew the risk it took by violating mandatory safety and health standards. The
Secretary seeks to require no more of Freedom than that it operate the mine in compliance with
the Mine Act and the mandatory safety and health standards, which it has a legal obligation to do
in any event. Additionally, the preliminary injunction sought would require Freedom to pay any
miners idled by withdrawal orders issued pursuant to the injunction, thus preventing any
potential harm to them.
4. The public interest will be served by issuance of an injunction
Finally, the public interest also weighs in favor of a preliminary injunction. The public
interest, as embodied in the Mine Act, is the safety and health of miners. As Congress stated,
“the first priority and concern of all in the coal or other mining industry must be the health and
safety of its most precious resource -- the miner.” 30 U.S.C. § 801(a); see generally Richardson
v. Sec’y of Labor, 689 F.2d 632, 633 (6th Cir. 1982).
CONCLUSION
The Secretary of Labor has affirmatively established her belief that Freedom is engaged
in a pattern of violation of the mandatory safety or health standards of the Mine Act, which in
her judgment constitutes a continuing hazard to the health or safety of the miners at Freedom.
This Court should order that a preliminary injunction be issued to the Freedom Mine under the
terms set forth in the Secretary’s Proposed Order.






Case: 7:1 O-cv-00132-ART Doc #: 2-2


Respectfully submitted


M. PATRICIA SMITH
Solicitor of Labor


STANLEY E. KEEN
Regional Solicitor


THERESA BALL
Associate Regional Solicitor


/s/ Mary Sue Taylor
MARY SUE TAYLOR
Trial Attorney


Office of the Solicitor
U. S. Department of Labor
618 Church Street.Suite 230
Nashville, Tennessee 37215-2862
Phone: (615) 781-5330 ext. 225
Fax: (615)781-5321
E-mail: nash.fedcou1t@dol.°ov
Taylor.Mary@dol.gov


I-[EIDI W. STRASSLER
Acting Associate Solicitor for
Mine Safety and Health


THOMAS A. PAIGE
KEITH E. BELL
Co-Counsels for Trial Litigation


/s/ Joshua P. Falk
JOSHUA P. FALK
Trial Attorney


U.S. Department of Labor
Office of the Solicitor
Mine Safety & Health Division
1100 Wilson Blvd, 22nd Floor
Arlington, Virginia 22209-2296
E-mail: fa1k.joshua@dol.gov


Attorneys for the Secretary


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