Armstrong Coal decries MSHA’s ‘strong-arm tactics’ in shop dispute

Armstrong Coal on Oct. 5 asked a federal court for a temporary restraining order and a preliminary injunction that would stop the U.S. Mine Safety and Health Administration from potentially shutting its big Parkway deep mine while its Sept. 4 lawsuit against MSHA is fought out.

Armstrong Coal and its Armstrong Fabricators affiliate sued MSHA, claiming that the agency has improperly tried to assert its inspection authority at an Armstrong Fabricators shop located at the Parkway coal mine in Muhlenberg County, Ky. The lawsuit was filed Sept. 4 at the U.S. District Court for the Western District of Kentucky.

The shop has never had an MSHA ID number and the agency has never asked that it get one, the lawsuit added. But MSHA has included the shop under the ID number for the nearby Parkway mine, which means a shutdown order issued for the shop is effectively a shutdown order for the mine.

The lawsuit was filed after an MSHA effort earlier this year to inspect the shop, which resulted in MSHA violation findings. Then, on Sept. 7, three days after the lawsuit was filed, MSHA inspector Wendell Crick, named along with MSHA as a lawsuit defendant, went again to inspect the shop, Armstrong told the court.

“On September 7, 2012, Defendant Crick arrived at Armstrong Coal’s Parkway Mine and again unlawfully demanded entry to the Fabricator Shop, allegedly for the purpose of determining whether Plaintiffs had complied with the unlawful abatement orders he had issued on August 28, 2012,” said the Oct. 5 motion. “Armstrong Coal’s personnel at the Parkway Mine informed Defendant Crick that they did not have access to or control over the Fabricator Shop. In conformity with Defendants’ standard strong-arm tactics for forcing Plaintiffs to grant them access to areas over which they lack jurisdiction, Defendant Crick then informed Plaintiffs that if he was not allowed entry into the Fabricator Shop within 30 minutes, he would issue a Citation to Plaintiffs for allegedly impeding an inspection, and that if 30 minutes later he still had not been granted entry, he would issue an order to Plaintiffs, presumably again to Armstrong Coals’ Parkway Mine pursuant to Section 104(b) of the Mine Act (30 U.S.C. § 814(b)). Such an order could require Armstrong Coal to withdraw all personnel from Armstrong Coal’s Parkway Mine, to cease operations at Armstrong Coal’s Parkway Mine, to also idle Armstrong Coal’s Parkway Mine Surface Facilities, and to lay off the nearly 200 employees that work at those facilities.”

The company added: “In light of Defendant Cricks’ threats, Plaintiffs informed him that the Fabricator Shop had been bolted shut, that there was no key to the Fabricator Shop nearby, and that if he wanted entry, they would provide him under protest with bolt cutters to cut the bolt off the Fabricator Shop gate or he could wait for a key to be driven from Armstrong Fabricators’ corporate headquarters in Madisonville, Kentucky approximately 25 miles away. Defendant Crick elected to wait for the key to be driven out from Madisonville. The key was driven from Madisonville and Defendant Crick was admitted to the Fabricator Shop under protest. Defendant Crick then conducted yet another unwarranted and unlawful inspection of the Fabricator Shop and stated that he was going to issue twenty (20) ‘orders’ to Plaintiffs for alleged failure to comply with his earlier abatement orders. Defendant Crick later that day did in fact issue twenty (20) orders to Armstrong Coal’s Parkway Mine pursuant to Section 104(b) of the Mine Act (30 U.S.C. § 814(b)), each of which effectively requires, inter alia, Plaintiffs to withdraw all employees from the Fabricator Shop until such time as Defendants determine that Plaintiffs have complied with Defendant Crick’s unlawful abatement orders. As with Defendants’ pre-Complaint conduct, the forced September 7, 2012 inspection of the Fabricator Shop once again irreparably deprived Plaintiffs of their constitutionally protected interests without any opportunity for meaningful review whatsoever.”

Armstrong said that if a TRO and preliminary injunction are not issued prohibiting MSHA from continuing its pattern of unlawfully asserting jurisdiction over the shop, the company will continue to suffer further immediate and irreparable injury. “It is plain that, particularly in light of Defendants’ sovereign immunity from liability for monetary damages, each of these harms constitutes both immediate and irreparable injury sufficient to justify both the issuance of a short-term TRO prohibiting Defendants from engaging in such conduct until a hearing may be held on Plaintiffs’ Motion for Preliminary Injunction, as well as the issuance of a preliminary injunction prohibiting such conduct pending a resolution of Plaintiffs’ present claims,” the company added.

MSHA had not replied to the original lawsuit or the TRO request as of Oct. 11.

Armstrong Coal, which plans to go public in an IPO under a new parent company, Armstrong Energy, is a major producer with several coal mines in western Kentucky. MSHA data shows the Parkway deep mine produced 797,523 tons in the first half of this year and over 1.4 million tons in all of 2011. Armstrong’s coal customers include Louisville Gas and Electric, Kentucky Utilities and the Tennessee Valley Authority.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.