Feds sue to close Massey mine in Kentucky

The Associated Press
Wednesday, November 3, 2010; 6:23 PM

CHARLESTON, W.Va. -- The U.S. Department of Labor filed an unprecedented federal lawsuit Wednesday seeking to close a mine operated by troubled coal producer Massey Energy Co. for continually violating safety laws.

The Labor Department has never sought an injunction to protect coal miners before, but is considering several more lawsuits, Patricia Smith, the agency's solicitor, said during a conference call.

Wednesday's lawsuit marks the latest step by the Labor Department's Mine Safety and Health Administration to crack down on dangerous mines. Massey has 21 days to respond.

The agency has been targeting mines with poor safety records since an explosion killed 29 miners at Massey's Upper Big Branch mine in West Virginia on April 5. The blast was the deadliest at a U.S. coal mine in 40 years and is the subject of criminal and civil investigations.

The lawsuit seeks to close Massey subsidiary Freedom Energy's Mine No. 1 in Pike County, Ky., until the company fixes violations and comes up with a way to prevent them in the future. The lawsuit asks that employees continue to be paid while the mine is offline .

"This is the mine that we believe is one accident away from a possible tragedy," Smith said.

MSHA said it has issued more than 2,000 citations and orders closing sections of the mine since July 2008 and injuries have been rising, though Smith said the government doesn't trust Massey's figures.

"We're not just looking at the injury rates, especially in this situation. My understanding is that Massey reported to its own shareholders that it underreports injury rates by approximately 37 percent," she said.

In documents filed with the lawsuit, MSHA officials describe Freedom as a mine fraught with hazards ranging from crumbling rock ceilings to piles of combustible coal dust and poor ventilation.

"MSHA has attempted to reason with the operator," David Ison, a regional MSHA official, wrote in one document. "The conditions at this mine are the result of a total disregard for basic mine maintenance and safety."

In February, MSHA found an improperly hung ventilation curtain was allowing methane to accumulate. The gas eventually hit 13 percent of the atmosphere in part of the mine - well within the explosive range of 5 percent to 15 percent.

"It is my belief that the levels of methane that occurred on February 4, 2010 may occur at any time in this mine if the operator does not pay close attention to ventilation issues," MSHA official Stevie Justice wrote in another document. "If the methane reaches explosive levels even occasionally, there is grave risk of an explosion to the miners working at the mine."

MSHA suspects methane and loose coal dust - another problem the agency says it finds regularly at Freedom - caused the Upper Big Branch explosion.

"Massey does not believe the mine is unsafe," the company said. "The operation has struggled to comply with newer MSHA standards. The company has recently focused additional scrutiny on the operation, including a personal visit by Chairman and CEO Don Blankenship."

However, Massey said Freedom is one of several mines in West Virginia, Kentucky and Virginia that it may close because they're simply too large to maintain properly. "Every effort will be made to reassign the miners to nearby locations," the company said.

Smith said the problems at Freedom run far deeper than failing to keep up with repairs in a big, aging mine.

"We actually compared this mine to two other mines of similar composition and size," she said. "Those mines have much better safety records that this mine ... It's not just a maintenance issue."

The citations and orders accuse Freedom of violating critical safety standards covering ventilation, roof supports, fire hazards and mandatory safety inspections, MSHA said.

"All of the conditions regularly cited by MSHA at Freedom Energy are of the type that result in fatal accidents," MSHA official Danny Deel wrote

Smith estimated Massey could fix the mine in a matter of weeks.

"That really depends upon how much cooperation we get," she said.

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