The Labor Department's first-ever use of its toughest enforcement tool has resulted in a court-supervised settlement with coal mine giant Massey Energy.
The agreement involves Massey's Freedom Mine #1 in Pike County, Ky., which is described in court documents as a mine so dangerous it requires court supervision. Freedom was singled out for an unprecedented federal court injunction owing to a persistent "pattern of violations" of mine safety law, which "constitutes a continuing hazard to the health or safety of miners."
Massey Energy denies "the existence of any pattern of violations" but agrees that a U.S. District Court has jurisdiction over Freedom and can apply sanctions, including contempt of court citations, if the company fails to follow a prescribed safety plan.
Massey Energy tells NPR the company "is pleased to have resolved the matter."
"We felt the best course of action was to cooperate with MSHA and jointly develop a plan for our coal miners to safely close the Freedom Energy mine," says Shane Harvey, Massey's vice president and general counsel. "We appreciate MSHA's input and cooperation on the plan" that is outlined in the settlement.
"I think that the settlement agreement is everything that the government could have hoped to achieve through the court action," says Ed Clair, a retired lawyer for the federal Mine Safety and Health Administration who reviewed the settlement for NPR. "It gives them incredible enforcement powers that they didn't have prior to this agreement."
Under the agreement, the mine's most senior managers must be directly involved in safety procedures and are personally responsible for violations. Miners continue to have paychecks and jobs if all or parts of the mine are shut down while safety problems are fixed. And shutdowns and fixes are immediate when unsafe conditions are spotted.
Selected key moments for Massey Energy and scrutiny of its Freedom Energy Mine #1 by the Mine Safety and Health Administration (MSHA).
May 4 – An MSHA inspector cites Freedom Mine for excessive coal dust again, noting the mine "has been cited over this condition 285 times in the past two years."
June 14 — In reference to the Freedom Mine, federal coal mine safety chief Kevin Stricklin writes in an internal e-mail: "We need to use this mine as a test case for injunctive action."
Sep. 11 — Two Freedom miners escape serious injury or death from a rockfall with debris 8 feet thick because a power outage had kept them from their work area.
Oct. 19 — Federal inspectors cite Freedom for six safety violations, including coal dust and ventilation.
Nov. 3 —The Department of Labor files for a first-ever federal injunction against a coal mine — Freedom Energy — nearly five months and more than 200 federal safety violations after MSHA's Stricklin identifies the mine as a test case.
Dec. 1 — Massey Energy decides to shut down Freedom Energy Mine #1, even though it insists it is safe.
Dec. 17 — At a federal court hearing, U.S. District Court Judge Amul Thaper does not give Massey Energy the dismissal it sought from the Labor Department's federal injunction. (On Dec. 23, the judge formally rejects the motion to dismiss.)
"Almost all of the provisions in this order impose requirements upon Massey that are above and beyond the normal requirements of the law," says Patricia Smith, the solicitor of the Labor Department. "We got really serious requirements that we wouldn't have had under an administrative proceeding and really nothing less than we would have asked the court for."
The settlement prevents a three-day hearing that was scheduled to begin today. The hearing was expected to include internal Massey documents and former Massey mineworkers and officials. The documents and testimony would have focused on production pressure at the company as the mine amassed hundreds of safety violations, citations and fines.
Massey has been under intense public and regulatory scrutiny since an explosion at its Upper Big Branch coal mine in West Virginia last April. Twenty-nine miners died in the blast, which is still the subject of criminal and civil investigations.
The Labor Department dusted off the never-used, 33-year-old "injunctive relief" section of federal mining law as part of the Obama administration's promised "get-tough" response to the Upper Big Branch disaster. Freedom was selected as a first test case.
When the agency filed the case in November, Massey announced it would close the mine anyway, citing ongoing challenges in operating a mine as large and old as Freedom. Federal Judge Amul Thapar refused to dismiss the case, ruling that about 60 mineworkers could still be exposed to dangerous conditions underground during the several months it would take to dismantle and remove equipment from the mine.
The settlement details safety precautions Massey must take to protect those workers. The mine is susceptible to dangerous rockfalls and explosive concentrations of methane gas. If new safety violations force closure of all or part of the mine the company must continue to pay workers, or find them other jobs within 60 miles, until the mine is considered safe.
Labor Department officials have repeatedly promised to seek federal court injunctions against other coal mines, but the agency has yet to file another case. Smith said today that several potential cases were resolved in other ways but court action is still being considered for mines she declined to name.
Mine safety advocate Wes Addington of the Appalachian Citizens Law Center says the Labor Department should continue to go to federal court. The Freedom case has "shown now that they're entitled to go into federal court and seek immediate relief for miners that are in immediate danger," Addington says. "They should use it going forward to protect miners in a more immediate way."
At the National Mining Association, spokeswoman Carol Raulston called the agreement "uncharted territory" for the mining industry. But she noted that "the court does stipulate this agreement applies only to this operation."
Still, mining companies are on notice that the Labor Department is prepared to go to court and can get into court, adds Ellen Smith, publisher of Mine Safety and Health News. "It's the big stick that MSHA is holding over mine operators, and mine operators are taking this threat extremely seriously," Smith says. "They have said that to me. They are worried about it."
That's exactly what federal mine safety officials want. Assistant Labor Secretary Joe Main says the Freedom case and settlement "surely points out our willingness to use this standard to protect miners."