Labor Dept. Asks Court To Close Massey Mine In Ky.

(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.

Getting Tough

"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.