12:32pm

Thu December 23, 2010
The Two-Way

Judge Upholds Effort To Seek Injunction Against Massey Mine

Massey Energy's attempt to derail an unprecedented use of the government's toughest mine safety enforcement tool was formally rejected by a federal judge in a ruling issued late Wednesday.

U.S. District Judge Amal Thapar turned back Massey Energy's motion to dismiss a Labor Department claim that the company's Freedom Energy Mine #1 in Pike County, Ky., is so dangerous it requires federal court supervision.

Massey Energy argued that the Labor Department must first attempt a series of lesser enforcement actions before seeking a federal court injunction requiring immediate and sustained adherence to mine safety regulations at the Freedom underground coal mine.

"Not so," writes Judge Thapar in a firm, concise ruling. "The Secretary [of labor] can come to court to eliminate the 'continuing hazard' without trudging through a series of administrative procedures."

Quoting specific language in federal mine safety law, Judge Thapar says the Labor Secretary can try to haul a mining company into federal court "not 'whenever' she has officially determined there is a 'pattern of violations,' but 'whenever' she 'believes' there is a pattern which, in her 'judgment,' represents a 'continuing hazard.' "

"The judge has swept aside all the procedural objections raised by Massey," says Ed Clair, a former chief lawyer for the federal Mine Safety and Health Administration (MSHA).

"It is a total vindication [for the Labor Department]," adds Tony Oppegard, a former mine safety regulator and prosecutor who now represents miners in lawsuits against mining companies.

The ruling clarifies the use of the "injunctive relief" provision of mine safety law. It targets mines with repeated and persistent violations, citations and fines and makes criminal contempt of court proceedings possible if mining companies continue to fail to comply.

The Freedom case is the first in which the Labor Department sought federal court intervention for mines considered habitually dangerous despite having that option for 33 years.

Clair and Oppegard say the ruling puts pressure on mining companies to respond to federal regulators without routinely appealing citations and fines that have clogged an administrative court system with 18,000 pending cases.

"It is going to scare a lot of outlaw operators," Oppegard says.  "The intimidation level in federal court is much higher." (Quote added at 2:10 p.m. ET.)

"The decision will also put pressure on [the Labor Department] to use this enforcement tool aggressively against chronic violators," Clair adds, "because any legal doubt about when and how the injunction provision can be used has been swept away."

Labor Department solicitor Patricia Smith has said three additional mines are being considered for federal court action but she has declined to name them or say when those cases might be filed.

Neither the Labor Department nor Massey Energy responded to NPR's requests for comment on Thapar's ruling.

The next step in the Freedom case is a trial set to begin January 5.

Massey Energy has already begun closing the mine. But Judge Thapar also ruled that the case can continue. The Labor Department argues in an amended complaint that about 60 mine workers at Freedom will be exposed to threatening conditions underground during the several months it will take to dismantle and remove equipment.

(Click here to see more of the reporting that Howard Berkes and other NPR journalists have been doing about Mine Safety In America -- including their reports about the April 5 disaster at Massey Energy's Upper Big Branch coal mine in West Virginia, where 29 miners died.) Copyright 2011 National Public Radio. To see more, visit http://www.npr.org/.