Massey To Close Ky. Mine That Regulators Wanted Seized

Chairman and CEO of Massey Energy Company Don Blankenship listens during a hearing before the Labor, Health and Human Services, Education, and Related Agencies Subcommittee of the Senate Appropriations Committee May 20, 2010 on Capitol Hill in Washington, DC. (Getty Images)

Massey Energy is shutting down a Kentucky mine that is targeted by federal regulators for the toughest enforcement action ever, the company confirms to NPR.

The Freedom Energy Mine No. 1 in Pike County is the focus of an unprecedented federal court action in which the Labor Department is seeking to have the court seize control of the mine. Labor Department officials argue that conditions at the facility are so dangerous that a judge's intervention was required.

But now, Massey's decision to close the mine would seem to make moot Labor's effort, which the department touted as part of its get-tough response to April's deadly explosion at Massey's Upper Big Branch mine in West Virginia. Twenty-nine miners died there.

Read the case documents:

-- Memorandum of Law.

-- Complaint.

Update at 5:30 p.m. ET Reaction From The Labor Department:

In a late response to this story, the Labor Department says it "will continue to seek a court order to ensure that miners who continue to work in any capacity at Freedom are safe."  That's a reference to some workers who will stay on the job removing equipment from the mine. The rest will be transferred to other mines.

Update at 2 p.m. ET. Reaction From Safety Experts:

"It's too bad that it took this action (seeking a federal court injunction) by the federal agency for the company to decide to cut its losses," says Celeste Monforton, a mine safety expert at George Washington University who is also part of an independent team investigating the Upper Big Branch mine disaster.

"These decisions are not based on safety," Monforton believes.  "Mining companies operate to provide shareholders a profit and when the cost of operating a mine exceeds the ability to make that profit, that's when they're going to close that mine down."

Massey's claim that the mine is safe is contradicted by the evidence, says Tony Oppegard, a former state and federal mine regulator and prosecutor who now represents miners in lawsuits against mining companies.

"This is one of the most dangerous mines in the United States," Oppegard says, noting that the possible loss of jobs is overshadowed by the possible loss of life. "There's untold suffering that results when there's a mine disaster that lasts for years and years and it's certainly preferable for a mine that can't be operated safely to be closed rather than risking a disaster."

In its statement to NPR, the Labor Department said it will continue to seek federal court intervention "in order to protect miner safety in any mine."  Going to federal court "is a viable enforcement tool," the agency said.

And Wednesday afternoon, a federal judge scheduled a hearing on a preliminary injunction for Jan. 4.  U.S. District Court Judge Amal Thapar also scheduled a hearing on Dec. 17 for oral arguments on an expected Massey motion to dismiss the case.

Both Oppegard and Monforton believe the Labor Department succeeded in its first-ever use of its toughest enforcement tool.

"I don't think Massey would have closed the mine without the government's action," says Oppegard. "I think they would have kept on exposing miners to safety hazards as long as they could get coal out of the mountain."

Monforton says federal mine safety regulators "should feel empowered" and hopes they won't "take so long to make a decision to use it again."

That's a reference to NPR's discovery of an internal MSHA e-mail sent in June that identified the Freedom Mine as "the test case" for a federal court injunction.  But the Labor Department didn't actually file the case until November. In the interim, six rock falls occurred at the mine. One would have killed two miners if a power outage hadn't kept them away.

Update at 11:10 a.m. ET. More On Freedom's Record: In court documents, the mine was described as having a "... high risk level for a fatal accident ... on any given day" by James Poynter, an assistant district manager at the Mine Safety and Health Administration (MSHA).

In fact, Freedom has experienced eight dangerous rock falls since August. Two occurred just last week, including one 16 feet deep, which was bigger than all the rest, according to federal records obtained by NPR.

In the last two years, Freedom has amassed more than 2,000 safety violations and orders, according to MSHA. And despite multiple meetings with mine managers about the conditions there, Poynter said in court documents, "MSHA continues to find serious and threatening conditions at this mine."

In addition, Freedom was recently named by MSHA as one of 13 mines with a possible "pattern of violations," a move that triggered tougher enforcement.

In a statement to NPR, Massey Energy said it "continues to believe the mine is safe," but that its age and size "present particular challenges." The company said it tried to reduce safety violations with unannounced internal inspections, extensive additional training and additional personnel focused on preventing and correcting violations.

(NPR's Howard Berkes has been following the news about Massey Energy and its mines for NPR's News Investigations team.)

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GUY RAZ, host:

You're listening to ALL THINGS CONSIDERED from NPR News.

Coal mine giant Massey Energy has decided to close an underground mine in Kentucky. As we first reported a month ago, Massey's Freedom Number One Mine in Pike County was considered so dangerous that the Labor Department asked a federal court to supervise it. That's an unprecedented move.

Today, Massey confirmed it was closing the mine on its own.

NPR's Howard Berkes reports.

HOWARD BERKES: Massey Energy disclosed the closure of the Freedom mine in a statement to NPR. It says some of Freedom's 130 miners will stay on the job dismantling and removing equipment. The rest of the workers will go to other mines. The company says it still believes Freedom is a safe coal mine, but its age and size are challenges.

Massey also said it tried to reduce safety violations with its own unannounced internal inspections, extensive new training and new safety personnel.

Ms. CELESTE MONFORTON (Mine Safety Expert, George Washington University): There's no doubt based on the record there at the mine that this was an extremely dangerous place for miners to work.

BERKES: Celeste Monforton is a mine safety expert at George Washington University and part of an independent team investigating the deadly April disaster at the Upper Big Branch mine in West Virginia, which is also owned by Massey.

Ms. MONFORTON: Clearly, this was not a mine that was viable in terms of being able to produce coal safely and provide a safe work environment.

BERKES: Monforton bases that on the 2,000 safety violations issued by federal regulators in the last two years. Since August, Freedom has had eight serious rock falls, according to federal records. One would have killed two miners if a power outage hadn't kept them away. So the Labor Department decided to use its toughest enforcement tool.

For the first time ever, it took the company and the mine to federal court, asking a judge to essentially seize the mine and force managers to pay more attention to safety.

Mr. TONY OPPEGARD (Lawyer): The company closing the mine is a recognition that they can't operate the mine safely.

BERKES: Tony Oppegard is a former mine safety regulator who now represents miners suing mining companies. He worries that Massey Energy will blame excessive regulation for the Freedom shutdown and the resulting risk to 130 jobs.

Massey has been severely critical of the Mine Safety and Health Administration in its oversight of coal mines. But Oppegard defends the agency's focus on Freedom.

Mr. OPPEGARD: There's untold suffering that results when there's a mine disaster and it's certainly preferable for a mine that can't be operated safely to be closed rather than risking a disaster.

BERKES: Despite Massey's closure of Freedom, a federal judge today set a hearing for a preliminary injunction next month. The Labor Department says it will continue to seek federal court supervision, given the underground work necessary to close the mine. And it will seek federal court injunctions against other dangerous mines.

This experience empowers the agency, says Celeste Monforton.

Ms. MONFORTON: And so I view this as Massey just cutting their losses and too bad that it took all of this significant federal action to have the company come to that same conclusion.

BERKES: Massey Energy declined to describe the financial impact of the shutdown but did say it anticipated the lost coal production in its recent economic forecast for next year.

Howard Berkes, NPR News. Transcript provided by NPR, Copyright NPR.

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