Tough mining law survives court test in Kentucky

U.S. mine regulators scored a victory this week over big coal producer Massey Energy Co. in federal court and say they are poised to use a long-ignored portion of mine safety law to haul operators of other troubled mines into court.

The U.S. Department of Labor used the overlooked provision for the first time in the mine law's 33-year history to sue Richmond, Va.-based Massey in November, citing repeated problems of methane gas leaks, ventilation problems and roof collapses at its Freedom Energy No. 1 mine in Kentucky.

Massey voluntarily closed the mine last month and settled the suit Wednesday, a development that mine safety experts say attests to the fact that the enforcement provision used in the case could survive a court challenge.

Assistant U.S. Secretary of Labor Joseph Main said the use of section 108 of mine law was "clearly an unprecedented action," allowing federal regulators to file a civil action against a coal company for repeatedly violating safety laws.

"The fact that they were willing to use it against Massey and have been very clear that they're going to be willing to use it against whoever else sends a pretty strong message," said Phil Smith, a spokesman for the United Mine Workers of America.

A Massey lawyer said after the settlement this week that the company "felt the best course of action was to cooperate" with the government.

U.S. Labor Solicitor Patricia Smith said regulators had recorded nearly 2,000 safety violations at the Freedom mine and its workers were in "constant danger."

"This was a mine that either presented a pattern of falling down or blowing up," Smith said in a conference call with reporters Wednesday.

The Labor Department's Mine Safety and Health Administration has been aggressively targeting mines with poor safety records since an explosion at a West Virginia mine killed 29 miners in April. Smith said regulators are considering bringing one other mine operator into federal court using the mine law, but declined to name it.

The little-used provision is the "strongest tool" in the 1977 Mine Safety and Health Act because of the involvement of a federal judge, mine safety experts say. The language in the provision allows regulators to seek a federal court injunction against a mine operator.

Most enforcement actions are handled by administrative law judges in less formal proceedings, said Tony Oppegard, a mine safety lawyer and former government regulator.

But in a U.S. District courtroom, "the intimidation level is much higher," Oppegard said. "It's much more rigorous scrutiny."

Massey had initially argued that the government's suit should be dismissed, but U.S. District Judge Amul Thapar rejected that argument in a ruling on Dec. 22. Thapar affirmed the government's right to head straight to federal court rather than first going through a series of procedures outlined in the mine act. That was the key to the legal victory, Oppegard said.

Smith and Main declined to comment on why the provision went unused for more than three decades.

"I can't speak for past administrations, I can only speak for ours," Main said.

Oppegard said he believes the tougher provision went unused because government lawyers in Washington could not identify with the dangers of underground mining and were afraid to lose a legal case.

"They just don't know the urgency when you have people in dangerous conditions," he said.

Oppegard said "outlaw" operators of underground coal mines in the Appalachias of southwest Virginia, West Virginia and eastern Kentucky are the most likely targets should the government use the tough provision again, though it applies to all U.S. mines of any kind.



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