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

Case: 7:10-cv-00132-ART Doc #: 2 filed: 11/03/10 Page:J of 10 - Page |D#: 16

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

MOTION FOR PRELIMINARY IN,|UNCTION
AND FOR A HEARING AND ORAL ARGUMENT

Plaintiff, HH.DA L. SOLIS, Secretary of Labor, United States Department of Labor, by
and through her undersigned attorneys, pursuant to Local Rule 7. 1(a), moves the Court to issue a
Preliminary Injunction pursuant to Sections l08(a)(2) and l08(b) of the Mine Safety and Health
Act of 1977, as amended (“Mine Act”), 30 U.S.C. §§8l8(a)(2) and 8l8(b), enjoining FREEDOM
ENERGY MINING COMPANY and SIDNEY COAL COMPANY, INC. doing business as
FREEDOM ENERGY MINING COMPANY, and all agents, servants, employees, contractors,
and subcontractors thereof, and all persons in active concert or participation with them, from
violating the provisions of Section l08(a)(2) of the Act, 29 U.S.C. § 8l8(a)(2), and for the relief
described in Paragraphs 4 and 5, below.

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1. In support of this motion, the Secretary submits her Memorandum of Law in
Support of Her Motion for Preliminary Injunction (“Memorandum of Law”).
2. In further support of this motion, the Secretary also submits the Declarations of
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), respectively marked as Plaintiffs Exhibits (“PX”) 1, 2, 3, 4, 5, 6, and
7 to the Memorandum of Law.
3. Based on the evidence and the law, the Secretary respectfully submits that she is
entitled to a preliminary injunction because she has a strong likelihood of success on the merits,
the miners (on whose behalf the Secretary brings this action) would suffer irreparable harm
without the injunction, the issuance of the injunction will not cause substantial harm to
Defendants or others, and the public interest would be served by issuance of the injunction.
4. The Secretary further prays for an Order requiring FREEDOM ENERGY
MINING COMPANY and SIDNEY COAL COMPANY, INC. doing business as FREEDOM
ENERGY MINING COMPANY, to close Mine #1, and prohibiting mining operations therein
(except for those persons listed in Section 104(c) of the Mine Act, 30 U.S.C. §814(c)), and,
before resuming mining operations and to the Secretary’s satisfaction, correct all violations and
hazardous conditions in the mine.
5. The Secretary further prays for an Order requiring FREEDOM ENERGY
MINING COMPANY and SIDNEY COAL COMPANY, INC. doing business as FREEDOM
ENERGY MINING COMPANY, to establish and maintain, before resuming mining operations
and to the Secretary’s satisfaction, an effective health and safety management program, and

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institute other practices that will ensure the health and safety of the miners, to include the
following:
a. An effective training and communication program. The training aspect of
the program should include, at a minimum, training on how to recognize hazardous conditions
and violations (including the requirements of the examination standards), to whom such
conditions and violations can and should be reported, and the Defendants’ responsibility to
correct such conditions and violations. The communication aspect of the program should
include, at a minimum, daily meetings between and among miners and appropriate management
officials, and establish an action plan for correcting any hazards and violations found at the mine.
Defendants should further establish in their action plan procedures setting forth how they will
proactively look for hazards and violations in the mine and how they will abate the hazardous
conditions and violations that are found, including the consideration of administrative and/or
engineering controls.
b. Defendants’ highest-level management officials should personally
conduct additional examinations of critical equipment and areas of the mine, including working
sections, belts, electrical and other equipment, and keep records of such examinations, as
follows,
1) Additional Examination of Working Sections - The Mine
Superintendent should examine the working section once per shift for hazardous conditions and
violations of mandatory health or safety standards, and record the examination in the on-shift
book or other book designated for that purpose. If no hazards or violations are observed, a
negative finding should be recorded as “NHO” (no hazards observed). Four examinations should
be conducted during each shift on active production sections of the faces in-by the last open

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crosscut. These examinations should be scheduled at even time intervals throughout the shift.
The last on-shift examination of a production shift may be in conjunction with the pre-shift
examination. If the Mine Superintendent is absent from the mine property, or otherwise cannot
perform these examinations, he/she should designate another certified mine management official
to perform these examinations. To the extent that the Mine Superintendent cannot perform these
examinations, he/she should nevertheless countersign all records of such examinations.
2) Additional Examinations of Belts - The Mine Superintendent
should travel at least fifty percent of all active belts each week, so that one hundred per cent of
the belts are examined every two weeks for hazardous conditions and violations of mandatory
health or safety standards, and record such examinations in the on-shift book or other book
provided for this purpose. The date and time of each belt examination under this section should
be noted as well as the items listed on the checklist. Negative findings should be recorded. If
the Mine Superintendent is absent from the mine property, or otherwise cannot perform these
examinations, he/she should designate another certified mine management official to perform
these examinations. To the extent that the Mine Superintendent cannot perform these
examinations, he/she should nevertheless countersign all records of such examinations.
3) Additional Electrical Examinations - The Chief Electrician, or
his/her equivalent, should countersign all books and records relating to inspection of electrical
installations and equipment including daily pre-operational electrical examinations of all
equipment available for operation during any working shift. The record relating to the repair of
any conditions found on the equipment should also be countersigned and maintained with the
initial examination record for any electrical installation or equipment. The repair information
should also be countersigned and dated. If the Chief Electrician is absent from the mine

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property, or cannot otherwise perform these functions, he/she should designate another certified
mine management official to countersign all books and records related to such electrical
examinations.
c. Defendants should ensure that other areas of the mine, and equipment
therein, are examined for hazardous conditions and violations of mandatory safety or health
standards, and keep records of such examinations, as follows -
1) In every working section, Defendants should make two
examinations of the immediate section belt from the section tail piece to the section head drive.
The results of the examinations should be recorded in the manner prescribed for on-shift
examinations. Negative findings should be recorded.
2) Defendants should ensure that all required electrical examinations
that refer to “weekly” exams are conducted every seven days.
3) Defendants should ensure that a pre-operational examination is
performed on all equipment that is available for operation during any working shift on any
working section. These pre-operational examinations should be recorded and countersigned, and
negative findings shall be recorded. Equipment defects affecting safety should be corrected
before the equipment is put into service. The time, date and person performing the examination
should be recorded as well as the condition of the equipment and any conditions which need
repair.
d. Defendants should ensure that additional air readings are taken in specific
areas of the mine, and recorded, as follows -
1) Prior to advance mining of each cut, an air reading (quality and
quantity) should be taken. When a miner sets over and prior to any sump, another air reading

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(quality and quantity) check should be taken. The time and place for the start of each sump, as
well as the air reading, should be recorded in the on-shift book at the end of the shift. The name
of the person who makes the cut, and the name of the person taking the air reading, should also
be recorded in the book.
2) The results of all examinations should be recorded, including any
examinations of equipment and installations and all air readings, gas checks or other data
collected, and negative findings should be recorded for each item. The date and time of the
examination(s) conducted as well as the name of the person conducting the examination should
be stated in this record.
e. Defendants should also -
1) Certify, on a daily basis, the accuracy of the 30 C.F.R. §75.12O0
surface map and underground escapeway maps. The Mine Superintendent should make this
certification, which should confirm that the maps are up-to-date as of the date and time recorded.
The certification should be recorded in a book maintained for this purpose. The areas examined
pursuant to this order by the mine foreman or superintendent should be kept in these records as
well. If the Mine Superintendent is absent from the mine property, or otherwise cannot perform
this certification, he/she should designate another certified mine management official to perform
the certification. To the extent that the Mine Superintendent cannot perform this function, he/she
should nevertheless countersign all such certifications.
2) Maintain a record of any methane detected in excess of 1% on any
working section and 2% in any other active workings using a methane or multi-gas detector
carried by any person underground. This record should show the methane reading, the
identification information for the methane detector, the date, time and location of the reading,

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and any action taken as a result of the reading. This record should be countersigned by the Mine
Superintendent and furnished to the Secretary or her authorized representative within twenty four
hours.
f. For any hazardous condition, or for any violation of safety or health
standards involving roof control, ventilation, coal accumulations, or electrical equipment, found
by the Secretary in a working section, Defendants should immediately withdraw all miners from
that working section (except for those persons listed in section l04(c) of the Mine Act, 30 U.S.C.
§814(c)) until such condition or violation is abated and a pre-shift examination has been
conducted on that working section. For purposes of this requirement, the withdrawal should
occur based on a hazardous condition or violation that relates to the following standards in 30
C.F.R. 75: Subpart B (Qualified and Certified Persons), Subpart C (Roof Support), Subpart
D (Ventilation), Subpart E (Combustible Materials and Rock Dusting), Subpart F (Electrical
Equipment), Subpart G (Trailing Cables), Subpart H (Grounding), Subpart I (Underground High
Voltage Distribution), Subpart J (Underground Low- and Medium-Voltage Current Circuits),
Subpart M (Maps), and for violations of standards involving examination and recordkeeping
requirements found in 30 C.F.R. §§ 75.1103-11, 75.1106-1, 75.1107-16, 75.1400-3, 75.1400-4,
75.1402-2, 75.1433, 75.1508, 75.1708, 75.1713-1, 75.1713-3, 75.1714-3, 75.2714-7, 75.1714-8,
75.1715, 75.1716-1, 75.1721, 75.1911, 75.1912, and 75.1915). The Secretary should be
permitted to petition this Court for an order adding to the foregoing list upon a showing that
hazardous conditions or violations of other safety or health standards occur on a regular and
recurring basis.

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g. For any hazardous condition, or for any violation of safety or health
standards found by the Secretary on any equipment, Defendants should immediately withdraw
such equipment from service until such condition or violation is abated.
h. Where miners are idled as a result of a closure pursuant to paragraph 4 of
this motion, or any withdrawal covered by paragraph 5 of this motion, Defendant should pay the
affected miners for any time period such miners are idled due to such closure or withdrawal, and
Defendant should provide proof of payment and payroll records to the District Manager for
MSHA’s Coal District 6 within five calendar days of the relevant pay period.
i. Defendants should provide, to the District Manager for MSHA’s Coal
District 6, copies of any citations or violations issued by any state or other federal enforcement
agency, within twenty four hours of issuance by such enforcement agency. All provisions of any
Order of relief issued by this Court should apply to any conditions or violations identified in any
enforcement action taken by any state or other federal enforcement agency.
j. Defendants should provide the following upon request-
1) To the Secretary, all methane and/or multi-gas detectors with data
logging capability used by any person underground with a list of the dates and times each
monitor was carried by any person underground. The Secretary may make a record of
information stored on these detectors during her examination, and shall provide a copy of such
information discovered during her examinations to Defendants.
2) To the Secretary, any officer of this Court, or any miners’
representative that is duly certified by the Secretary pursuant to Section 103(f) of the Mine Act,
30 U.S.C. §813(f), the results of any additional examination or record required by any Order of

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relief issued by this Court. The Mine Superintendent should certify that the records provided
pursuant to this subsection are true and accurate.
k. Defendants should serve a copy of all citations and orders on all their
employees, including clerical, guards, contractors, and underground miners, and post all citations
and orders at the mine bathhouse, guard shack, website, and mine bulletin board, and provide
satisfactory proof of such service and posting to the Court.
6. The Secretary further prays for an Order requiring the provisions of paragraph 5,
above, to continue for a period of one year, or until, during that one year period, the Defendants’
mine receives no significant and substantial violations of any mandatory safety or health
standard during any regular inspection of the mine.
7. Pursuant to Local Rule 7.l(f), the Secretary requests a hearing and an oral
argument on this motion.

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Respectfully submitted

M. PATRICIA SMITH
Solicitor of Labor

STANLEY E. KEEN
Regional Solicitor

THERESA BALL
Associate Regional Solicitor

/s/ Mg( 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.fedcourt@dol.<>ov
Taylor.Mary@dol.gov

HEIDI 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
Email: falk.joshua@dol.gov

Attorneys for the Secretary

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