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Massey To Close Ky. Mine That Regulators Wanted Seized

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.

Freedom Energy Mine #1

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.

Read the case documents:

Memorandum of Law.

Complaint.

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.

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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