The Labor Department took an unprecedented step against a Kentucky coal mine Wednesday, asking that a federal judge shut it down immediately to protect the lives of those who work there.
In filing for a preliminary injunction in U.S. District Court, the government cites persistently dangerous conditions in Massey Energy's Freedom Mine No. 1 in Pike County. The action — the toughest enforcement action available to federal regulators — would shut down the mine until safety hazards are addressed and Massey Energy demonstrates it can operate the mine safely.
The Freedom Mine employs about 130 miners and was cited for safety violations more than 700 times this year alone.
The move is viewed by mine safety experts as one response to the deadly explosion in April at Massey's Upper Big Branch mine in West Virginia. Twenty-nine mine workers died in that tragedy, which has triggered civil and criminal investigations.
For 33 years, the agency has had the authority to take mining companies to federal court when they have serious and persistent safety violations. But this "injunctive relief" section of the Federal Mine Safety and Health Act has not been invoked until now.
Section 108(a)(2) of that law authorizes the Labor Department to seek restraining orders, preliminary or permanent injunctions and other federal court orders when a mining company "is engaged in a pattern of violation" that "constitutes a continuing hazard to the health or safety of miners."
The non-union Freedom Energy Mine No. 1 "has a high risk level for a fatal accident...on any given day" writes James Poynter, an assistant district manager at the Mine Safety and Health Administration (MSHA), in a document filed in federal court on Wednesday.
"MSHA continues to find serious and threatening conditions at this mine," Poynter adds, even after federal officials met multiple times with Freedom Energy managers about conditions at the mine. The most recent meeting cited took place in July.
"MSHA has used all the tools available to it in the regulatory scheme in an attempt to bring this operator into compliance," Poynter concludes.
In a statement, Massey Energy says Freedom "has struggled to comply with newer MSHA standards" because it's an older and larger mine. But, the statement adds, "Massey does not believe the mine is unsafe."
CEO Don Blankenship personally provided a safety briefing to the day shift at Freedom on Oct. 29, when all of the company's underground coal mines stopped production and focused on safety.
Earlier that week, Blankenship spoke generically about older and larger mines like Freedom that generate more safety violations.
"They're getting those violations not because we feel like the mine is more dangerous or because we're not trying real hard but there's so much area" underground, Blankenship said. Some, he continued, have millions of square feet and conveyor belts miles long, "and if you want to find [safety violations] you can pretty much find that in a mine of that size."
"The bigger, older mines are much more difficult to avoid violations," Blankenship said. He suggested some may have to be closed.
In its statement today, Massey said closing Freedom is now a possibility.
"Due to the mine's age and size, the Company is considering idling the mine until it can ensure that the mine will meet current MSHA standards," the statement said. And, if that happens, it continued, "every effort will be made to reassign the miners to nearby locations."
But in its request for a court-ordered shutdown, the Labor Department asks the court to force Massey to pay Freedom miners while the mine is closed for safety improvements.
Freedom Energy Mine No. 1 had a federal safety violations rate in 2009 that precisely matches the national average. But so far this year, Freedom's actual number of violations exceeds its total for all of last year.
The injury rate at the mine last year is close to half the national rate for 2009, according to an NPR analysis of federal mine safety data. That same data indicates that no deaths have occurred at Freedom since 1995, the first year fatality data is reported on MSHA's website.
Still, "the risk of harm to miners is much worse at Freedom than it is at other comparable mines," MSHA's Poynter contends.
And Labor Department Solicitor Patricia Smith notes Massey has admitted under-reporting injuries by more than 30 percent, "so the fact that it has an average injury rate may not actually reflect reality."
In its federal court complaint, the Labor Department seeks a preliminary injunction placing the mine under court supervision and shutting it down until safety hazards are addressed and Massey Energy demonstrates it can operate the mine safely.
Court documents and state and federal records obtained by NPR cite persistent safety violations involving accumulations of flammable and explosive coal and coal dust, the threat of rock falls, ventilation or air flow in the mine, hazardous electrical equipment, spotting and recording dangers and emergency evacuation procedures.
MSHA already has the authority to shut down all or parts of mines for serious safety violations but mining resumes as soon as immediate problems are addressed.
Fines are also levied by MSHA but mining companies routinely appeal fines and it can take years for those appeals to be resolved. Right now, more than 18,000 citations and fines are waiting for administrative court action.
"What I think has happened over many, many years is that there's a growing frustration with the citation, abatement, penalty process where the mine operators continue to violate the same standards and there is no permanent fix to serious problems," says Ed Clair, MSHA's former top lawyer, who spent more than two decades at the agency.
History Of Safety Violations
The Freedom Mine has a history of serious and repeated safety violations. Two hundred of its federal citations this year are classified as "serious and substantial," according to MSHA records, and 50 are listed as an "unwarrantable failure" to comply with mine safety law.
"Unwarrantable failure means you knew there was a violation and didn't fix it or you should have known...because it was open and obvious and you didn't fix it," says Tony Oppegard, a former mine safety prosecutor and regulator who represents coal miners in lawsuits against mining companies.
"This is a troubled mine," Oppegard adds. "And it's long past time that that (injunctive relief) section of the law (is) used."
MSHA records show that the biggest repeated problem at Freedom is failure to clean up or neutralize loose coal and coal dust, which can feed and accelerate fires and explosions.
Freedom is also a "gassy" mine — 1 million to 2 million cubic feet of methane gas naturally seeps in every day, according to MSHA records. Methane is highly explosive at certain concentrations so the daily presence of such large quantities of the gas increases the potential for explosions.
Mines are required to remove excessive coal and coal dust and spray the mine with crushed limestone or "rock dust" to diminish the possibility of ignition. But documents filed in federal court cite numerous incidents involving loose coal and coal dust at the Freedom Mine:
Nov. 10, 2008 — Inspectors issue a citation for "high negligence" and an unwarrantable failure after finding loose coal and coal dust as much as two feet deep and stretching 140 feet. The citation reads: "The operator knew and had knowledge of this hazardous condition."
May 14, 2009 — An inspector notes highly explosive "float" coal dust spread more than two miles underground.
Nov. 13, 2009 -- After another coal dust violation, an inspector notes it "took a total of 14 miners for a total of 10 (nine-hour) shifts" to clean up the excessive coal. "Mine management has failed to abate" an earlier coal dust citation, another inspector writes. "Loose coal is still present...(and) the conveyor belt and bottom return rollers are turning in the combustible material for a distance of 12 feet in length and approximately 2 feet deep"
(Machinery churning in loose coal can create enough friction to ignite a fire or explosion, according to another inspector in a separate citation.)
April 12, 2010 — After citing Freedom for coal dust in and around machinery and electrical components that can produce sparks, an inspector wrote: "This condition is obvious and extensive...and the operator has been placed on notice."
May 20, 2010 -- After yet another coal dust citation, an inspector notes: "Operator has been cited for this condition 281 times in twenty four months."
Safety inspections and reports compiled by MSHA and Kentucky's Office of Mine Safety and Licensing cite repeated violations involving rock falls. An MSHA inspector noted 117 such violations in the last two years. Poynter writes in his court declaration that two miners would have been killed in one of six rock falls since August if a power outage hadn't kept them away.
Rock falls at Freedom can be massive. State and federal accident reports describe one 250 feet long, 18 feet wide and 9 feet thick.
Ventilation is also listed as a persistent problem. Proper ventilation sweeps away explosive and toxic gases. But federal inspectors found dead or little airflow at times and air flowing in the wrong direction.
"This is the mine that we believe is one accident away from possible tragedy," says Labor Department Solicitor Smith.
"This mine is, in essence, on a downward slide," says Celeste Monforton, a former federal mine safety official who is one of the independent investigators reviewing the Upper Big Branch disaster. "This is the exact type of mine, I would imagine, the drafters of the Mine Act had envisioned when they put in this very serious provision that would allow the agency to go to court."
Monforton reviewed the federal safety record of the Freedom Mine at NPR's request.
"Despite the agency's efforts to send a message to the mine that they are violating the law, in their subsequent inspections they even had more citations and orders than in the previous inspection period," Monforton says.
Monforton calls injunctive relief "the nuclear option" because it's considered MSHA's toughest enforcement tool. And the agency has been under pressure to get tough since the loss of 29 lives at the Upper Big Branch mine in April.
A few days after the final victims were removed from the mine, President Obama told reporters gathered in the White House Rose Garden that it was time to consider all of the government's enforcement tools to protect miners.
"We need to take a hard look at our own practices and our own procedures to ensure that we're pursuing mine safety as relentlessly as we responsibly can," Obama said.
At a Senate hearing in May, Assistant Labor Secretary Joe Main said the agency was considering injunctive relief cases "to go after and shut down mines that have records like Upper Big Branch."
And in June, federal mine safety chief Kevin Stricklin wrote this about Freedom Energy Mine #1 in an internal e-mail obtained by NPR: "We need to use this mine as a test case."
A 'Wake-Up Call'
Former MSHA solicitor Ed Clair says the agency has resisted going to court in the past because it had other options that seemed to work. He says mine deaths were declining until 2006.
Clair also sees risk in putting mine safety regulation in the hands of a federal judge. That puts the resolution of safety problems in a judge's control, Clair suggests, and leaves the regulators on the sidelines.
A judge may also have this question: If this mine is so dangerous, why did it take the Labor Department this long to go to court? It's been almost five months, after all, since Stricklin cited the Freedom Mine as the test case.
A judge's rejection of the case is the biggest risk, Clair says, "And that could establish a very adverse precedent for using this provision and perhaps somehow otherwise circumscribe the agency's enforcement authority."
But with 56 coal miners dead in five disasters since 2006, Clair sees the wisdom in breaking precedent.
Mine safety expert Celeste Monforton believes the most recent tragedy has a lot to do with the Labor Department's action now.
"The Upper Big Branch mine disaster was the harshest wake-up call imaginable," Monforton says. "I'm not sure the moment would have come if not for the 29 lives lost."
The first hearing in the Freedom Mine case is expected in the next several weeks in a federal court in eastern Kentucky.
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And I'm Michele Norris.
The Labor Department did something today it has never done before, it went to federal court to shut down a coal mine that's considered too dangerous to operate. NPR News has learned that the targeted mine, Freedom Mine, in Kentucky is owned by Massey Energy. That's the same company that owns the Upper Big Branch mine in West Virginia, where 29 mine workers died in April in a huge explosion.
NPR's Howard Berkes has the latest in an ongoing NPR News investigation.
HOWARD BERKES: Four months ago, federal coal mine safety chief Kevin Stricklin wrote in an internal email: We need to use this mine as a test case. Stricklin was referring to Massey Energy's Freedom Mine number one in Pike County, Kentucky. He and other federal regulators were under pressure to get tough with habitual violators of mine safety laws. Here's President Obama in the White House Rose Garden in April.
President BARACK OBAMA: We need to take a hard look at our own practices and our own procedures to ensure that we're pursuing mine safety as relentlessly as we responsibly can.
BERKES: A month later, Assistant Labor Secretary Joe Main promised Congress he would go to court.
Mr. JOE MAIN (Assistant Secretary of Labor): To go after and shut down mines that have records like Upper Big Branch.
BERKES: Which is something federal mine safety regulators had never done, despite having that authority for 33 years. Today they finally did it, seeking a preliminary injunction of forced shut down and federal court supervision for Massey's Freedom Mine. In a statement, Massey says it does not believe the mine is unsafe, just big and old and hard to adapt to newer safety standards. It said it might close the mine until it can meet those standards and try to move the mine elsewhere.
Freedom and other mines need this legal tool imposed, says Tony Oppegard.
Mr. TONY OPPEGARD (Former Mine Safety Prosecutor and Regulator): And it's long past time that that section of the law be used.
BERKES: Oppegard is a former state and federal mine safety official who now represents miners suing mining companies.
Mr. OPPEGARD: This is a very troubled mine. Barely a third of the way into the year, they already had 400-and-some violations, numerous or unwarrantable failures that you knew you had a violation and you didn't fix it, or that you should have known about this violation because it was open and obvious and you didn't fix it.
BERKES: Freedom now has more than 50 unwarrantable failures this year, according to federal records. It now has 700 safety violations, with more than 200 considered serious and substantial. It repeatedly fails to clean up or neutralize coal dust, which is both flammable and explosive.
Inspectors found loose coal as much as four feet deep in the mine, according to court documents, and coal dust spread as much as two miles underground. And that's in a mine with electrical problems and other possible sources of ignition, according to inspection records, which also say the mine has more than a million cubic feet of potentially explosive methane gas seeping in every day.
It's a volatile and persistent pattern that troubles Ed Clair, a former chief lawyer for the Labor Department's mine safety agency.
Mr. ED CLAIR (Former MSHA Solicitor): What I think has happened over many, many years is that there's a growing frustration with the process where the mine operators continue to violate the same standards. And there is no permanent fix to serious problems.
BERKES: That alleged behavior at the Freedom Mine puts the lives of its 130 miners at risk, according to James Poynter, a federal mine safety official in Kentucky. He writes in a court document that the mine has a high risk level for a fatal accident on any given day. Two miners, he notes, would've been killed by falling rock in one of six such incidents since August if a power outage hadn't kept them away. Rock falls are frequent at the mine, according to state and federal records. And inspectors blame mine managers for failing to protect miners.
Ms. CELESTE MONFORTON (Former Federal Mine Safety Official): And those are the exact types of mines I would imagine the drafters of the mine act had envisioned when they put in this very serious provision that would allow the agency to go to court.
BERKES: Celeste Monforton is a former federal mine safety official and is part of an independent team investing the Upper Big Branch disaster. She reviewed Freedom's record at NPR's request.
Ms. MONFORTON: Despite the agency's efforts to send a message to the mine that they are violating the law, in their subsequent inspections, they even had more citations and orders than in the previous inspection period.
BERKES: And that was after mine managers promised to do better, as recently as July, according to court documents. But as James Poynter writes, inspectors continue to find serious life threatening conditions. Poynter cites ventilation as another major problem. Proper ventilation sweeps away explosive and toxic gases. But inspectors found dead or little air flow at times, and air flowing in the wrong direction. In one incident in February, they measured methane gas at such highly explosive levels, they ordered everybody out.
The Labor Department wants the mine shut down until safety problems are fixed and Massey Energy demonstrates it can operate the mine safely. Patricia Smith is the agency's solicitor.
Ms. PATRICIA SMITH (Solicitor, Labor Department): We've cited them over 1,900 times. We've closed down the mine and withdrawn miners 81 times, and still, the safety violations continue on. There's a real concern from the MSHA personnel who have been on the ground and been in the mine that the next safety violation could lead to a tragedy.
BERKES: Smith says she's preparing injunctions against other mines. Seeking an injunction and shutdown is tough, but going to a judge is risky. It makes safety enforcement a court's responsibility and a judge may have this question: If this mine is so dangerous, why did it take the Labor Department this long to go to court? It's been almost five months, after all, since mine safety chief Kevin Stricklin cited the Freedom Mine as the test case.
A judge's rejection of the case is the biggest risk, says Ed Clair, the agency's former top mine safety lawyer.
Mr. CLAIR: That could establish a very adverse precedent for using this provision and perhaps somehow otherwise circumscribe the agency's enforcement authority.
BERKES: Clair was at the mine safety agency almost the entire time the injunction option wasn't used. He says other enforcements seemed to work as serious accidents declined. But since 2006, 56 miners died in five disasters, including April's Upper Big Branch explosion. That tragedy has a lot to do with the Labor Department's action now, says mine safety expert Celeste Monforton.
Ms. MONFORTON: The Upper Big Branch mine disaster was the harshest wake up call imaginable. I'm not sure the moment would've come if not for the 29 lives lost.
BERKES: It's now up to a federal judge in Kentucky to decide what to do about Massey's Freedom Mine. The first hearing in this test case is expected in the next several weeks.
Howard Berkes, NPR News.
NORRIS: And on our website, we detail the safety violations at the Freedom Mine. That's at npr.org. Transcript provided by NPR, Copyright NPR.