NPR Rural Correspondent Howard Berkes discusses his seven-month-long investigation into the activities of coal production company Massey Energy, whose serious and consistent safety violations recently led the U.S. Labor Department to seek an unprecedented injunction to shut down one of its mines.

1. How did the story about Massey Energy’s Freedom Mine Number One fit into NPR’s ongoing investigation of mine safety?

The safety record of the Freedom Mine and the Labor Department’s interest in that mine came to my attention during NPR’s ongoing investigation of the Upper Big Branch coal mine disaster in West Virginia in April. Both Freedom and Upper Big Branch are owned and operated by Massey Energy. I had learned that Freedom was targeted for the first ever attempt to use the toughest enforcement tool the Labor Department possesses for coal mines with repeated and persistent safety violations. Using the federal and West Virginia Freedom of Information Acts, and federal records that were already public, I gathered hundreds of pages of documents about the mine, which indicated dangerous conditions underground that mine management failed to systematically correct even after repeated warnings, hundreds of violations, citations, orders and fines, and management’s promises to do better. 

The record at Freedom raises important questions about Massey Energy’s insistent claims that safety is its number one priority. It also raises questions about the Labor Department’s failure to use this enforcement tool before. For 33 years, the agency has had the power to haul coal mining companies into federal court and seek judicial seizure and supervision of coal mines with horrendous safety records and a failure to respond to other regulatory sanctions. The Labor Department only moved on Freedom because of the scrutiny its mine safety regulation has been under since the Upper Big Branch disaster. And Freedom now becomes the test case of whether this enforcement tool will actually work.

I had been looking into Freedom so long that we had analysis, data and perspective ready to go when the case was finally filed.

2. What surprised you as you did your research?

It was clear that this was an old and dangerous mine with the type of rock structure that was especially susceptible to roof falls. There were eight roof falls since the Labor Department targeted Freedom for federal court action. Internal e-mails obtained by NPR showed it took the agency nearly five months to file the court action after Freedom was identified as “a test case” by the Mine Safety and Health Administration. One of the rock falls during this period would have killed two miners if they hadn’t been away from their work area due to a power outage. It was also surprising to see the persistent failure of Massey Energy to do what was necessary to make the mine safer. The repeated roof falls, the vast accumulations of explosive coal dust and dangerously high readings of methane gas all made for dangerous conditions. The safety violations, federal and state inspections, citations and face-to-face conversations with mine managers indicated the combination of conditions necessary for another massive explosion like the one that killed 29 miners at Upper Big Branch.

3. What has the response been since you published it?

The Labor Department said it was going to seek federal court action for other coal mines but that hasn’t happened. That may be due to the fact Massey Energy announced that it would close the mine. The case is still active because it will take Massey months to facilitate a shutdown and the mine will presumably continue to be unsafe for the mine workers dismantling and removing equipment underground. Perhaps the Labor Department is waiting to see how a federal judge responds to arguments made by its own attorneys and Massey Energy. In any case, the coal mine safety data gathered by my colleague Robert Benincasa and our reporting on the persistent safety problems at other mines raises questions about the Labor Department’s failure to file more cases.

Also, I’m not sure the agency would have filed the Freedom case if I hadn’t been so persistent in asking questions, seeking documents and seeking interviews with agency officials (none of which were granted) about Freedom’s record and the agency’s intentions. The Labor Department knew I was looking into Freedom. The agency knew I had the internal e-mails and it knew I knew the mine had been targeted. Its failure to file a case would have been the subject of an NPR story.

Since the story and the Labor Department’s action, long-time Massey CEO Don Blankenship announced he was leaving the company. Freedom was a short drive from his office in Belfry, Kentucky, and he conducted a safety briefing himself at the mine the week before the Labor Department acted. It may be that the Freedom story and case helped the Massey Board recognize that Massey’s safety record is an ongoing public relations problem and that Blankenship may be part of the public relations problem. That’s a lot of baggage for a prospective new owner and Massey Energy has acknowledged the board is considering selling the company. The Wall Street Journal’s reporting suggests Blankenship left because he opposed a sale. It’s possible that Freedom helped underscore the safety issues and regulatory and public relations exposure at a sensitive time.

4. Is there something you wish you had room to include in the piece but could not?

The fact that we can supplement our radio stories with web stories, maps, charts and additional data gives our radio listeners and web readers the opportunity to read what we couldn’t fit in the radio piece. NPR is very aggressive in using web resources to supplement the natural limitations of radio. “Quotes” are more powerful when we hear them on the radio but there is a limit to the complexity a radio story can provide. Using both the web and radio as complementary platforms for these stories gives us the chance to include more of what we learn.

5. Do you expect the actions of the Department of Labor to have any long-term effect on the mining industry or Massey Energy?

That remains to be seen. The industry, Massey Energy, the regulators, coal miners, the administration and the rank and file mine inspectors underground are all waiting to see whether a federal judge will accept this regulatory role. This is unprecedented and, as my Freedom story notes, there is great risk. If a federal judge rejects this role or rejects the Labor Department’s arguments about the mine, the agency may be reluctant to ever use the enforcement action again. Mining companies would then have no incentive to change what they do now, which is to contest thousands of citations, violations, orders and fines. Persistent resistance to mine safety regulation will likely continue without tougher enforcement. Just last week, Congress failed to enact tougher mine safety regulations. The Freedom case and story help draw attention to the failures of the existing regulatory system. It’s too early to say whether the conditions at Freedom and the attempt to get federal court supervision will change anything.