ROBERT SIEGEL, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
MICHELE NORRIS, host:
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.
NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.