Fighting for Justice in the Coalfields

Louisville Courier-Journal reports Kentucky Darby mine operators have yet to pay for 2006 blast that killed five miners

The Courier-Journal —  Louisville, Kentucky — April 22, 2012

Kentucky Darby mine operators have yet to pay for 2006 blast that killed 5

by James R. Carroll

WASHINGTON — Nearly six years after an explosion killed five miners at Kentucky Darby Mine No. 1 in Harlan County, the operators have not paid nearly $700,000 in civil fines and interest fees for safety violations connected to the accident.

Kentucky Darby admitted liability for the unpaid fines under an agreement finalized in January 2010 in the U.S. District Court for the Eastern District of Kentucky in London, according to court documents.

And the federal Mine Safety and Health Administration has referred Kentucky Darby’s delinquent fines to the Treasury Department for collection. MSHA also obtained a 20-year lien on Kentucky Darby property in March 2010, federal court records show.

Meanwhile, Ralph Napier, a former operator of the Darby Mine, is still mining coal in Kentucky as the vice president of companies operating at least two active mines in Harlan County, records at the Kentucky secretary of state’s office show.

Those two operations — K & D Mining Inc., which runs Mine No. 17, and Neco Energy Inc., which runs Mine No. 2 — currently owe at least $637,000 in delinquent penalties for about 400 safety violations, according to MSHA and a Courier-Journal analysis of the agency’s data on citations and penalties.

MSHA chief Joseph Main said in an interview that as a result of The Courier-Journal’s findings, his agency is taking a close look at the connections among Kentucky Darby, K & D and Neco.

“They are on our radar screen. … Mine operators should not be allowed to walk away from their responsibilities for this,” Main said.

Collecting unpaid fines is a major problem for MSHA and the federal government.  Coal mines, metals mines, quarries and related operations under MSHA’s jurisdiction have run up $71.3 million in overdue fines over more than a decade, according to an analysis of data through 2011 by the office of U.S. Rep. George Miller, D-Calif. Delinquent penalties owed by active coal mines and mines that operate intermittently totaled $23.8 million.

“It is unconscionable that in the 21st century, coal mine operators can kill or maim miners without suffering any repercussions, not even the payment of inadequate fines for their admitted safety violations,” said Tony Oppegard, a former state and federal mine-safety official.

Now an attorney in Lexington, Ky., Oppegard represented the spouses of four of the Kentucky Darby victims.

The ability of people connected to Kentucky Darby to keep mining while failing to pay massive sums of fines underscores the weakness of federal mine-safety laws, survivors of the dead miners, mine-safety advocates and lawmakers said.

“There’s been no justice. These men lost their lives, and nothing’s been done,” said Priscilla Petra, 49, wife of George William “Bill” Petra, one of those killed in the 2006 Kentucky Darby explosion.

“It really upsets me,” said Mary Middleton, 37, wife of Roy Middleton, another of the miners killed. “Sometimes I feel like it was in vain, like no one cares.”

Napier did not respond to a request for comment. The attorney for Kentucky Darby did not respond to a request to comment.

The phones at Neco Energy’s Mine No. 2 were not answered. A guard who answered the phone at K & D said he did not know where to reach mine officials.

A mine-safety-reform bill, sponsored by Miller and Rep. Lynn Woolsey, another California Democrat, crafted in consultation with MSHA, includes a provision that would give the federal government the power to shut down mines that run up delinquent fines. The measure is stalled in the House.

The power to issue closure orders to scofflaw operators “has a lot more up-front impact in the ability to collect fines,” Main said. “Mines that operate and rack up fines and do not pay their bills need to be held accountable under the law.”

Asked about the Kentucky Darby case, Miller said in a statement that “it’s unacceptable that mine operators are allowed to operate ‘business as usual’ while owing millions of dollars in outstanding fines stretching back years.”

“It’s clear that MSHA needs better tools to collect overdue fines for safety violations and needs to make sure that operators aren’t able to dodge fines if they open new mines under a different name,” he said.

The chairman of the House Education and the Workforce Committee, Rep. John Kline, R-Minn., recently said “all options remain available” regarding enactment of new safety measures. Responding to the outstanding Kentucky Darby fines, Kline said in a statement that “mine operators have a responsibility to protect their workers and follow the law.”

“If mine operators are found guilty of violating health and safety standards, they must accept the consequences of their actions without any unnecessary delay,” he said.

Under MSHA policy, civil penalties are considered delinquent if they are overdue for 180 days or more. After that, MSHA refers the unpaid penalties to the Treasury Department for collection. That is where the Kentucky Darby fines remain. Fines incurred by the other mines connected with Napier also have been referred to Treasury.

Treasury officials declined to comment, saying the agency does not discuss a specific case of delinquent penalties but would inform MSHA of any developments. When possible, the Treasury Department can collect unpaid fines by intercepting any government funds due the debtor, such as tax refunds or contractor payments.

Kentucky Darby’s outstanding fines were among the largest among mining companies in the nation last year, according to a survey by Mine Safety and Health News.

Kentucky Darby Mine No. 1 in Holmes Mill was rocked by a blast at 1 a.m. on May 20, 2006. MSHA investigators determined that methane gas from an improperly built seal leaked into an area where miners were using an acetylene torch to cut some metal roof straps. The torch ignited the gas.

MSHA said Kentucky Darby “did not observe basic mine safety practices and … critical safety standards were violated.”

Three of six major violations showed “reckless disregard” for safety, according to MSHA, while three others showed a high degree of negligence by the company.

In addition to Bill Petra, who was 49, and Roy Middleton, 35, the victims were Jimmy Lee, 33; Amon “Cotton” Brock, 51, the mine foreman; and Paris Thomas Jr., 53. A sixth miner, Paul Ledford, survived.

Kentucky Darby never resumed operations after the accident, and the mine was sealed in November 2006.

The abandonment of the mine raised concerns at the time among safety advocates and miners’ families that efforts to collect penalties would be more difficult. State and federal regulators insisted that would not be the case.

Oppegard said his worries have proved well-founded.

“If Mr. Napier or any other operator can’t pay outstanding mine-safety fines, then they should not be allowed to operate another mine,” Oppegard said. “We all know what will happen if there is a disaster at Mr. Napier’s current operation. Just like at Kentucky Darby, he won’t pay a penny in fines, and he’ll go elsewhere in Harlan County and open another mine under the name of a new company.

“That is not the way the system is supposed to work. The message it sends to coal miners and their families is, ‘You’re nothing but a worthless coal miner. Your life has no value,’ ” he said.

That is how Middleton and Petra feel.

“It’s so disturbing, we just can’t understand it,” said Middleton, who has 13- and 19-year-old daughters and lives near Verda, Ky. “You can’t get no clear answer to why” the Kentucky Darby owners are still running mines.

Petra, a second-grade teacher who lives in Pineville, Ky., has a 24-year-old son and 16-year-old daughter. She said it makes her angry that the operators of Kentucky Darby remain in the mining business.

“You can be on the highway and have an accident and take someone’s life, and you have to pay for that,” Petra said. Coal operators are supposed to take safety precautions … but you can skip all that and cause the deaths of these men and you can get away with it.”

MSHA records show that both K & D Mining and Neco Energy are headquartered at the same address in Speedwell, Tenn. Jack H. Ealy is listed as the president of both companies in state records.

K & D Mining and Neco Energy both were given mining licenses in 2011 by Kentucky’s Office of Mine Safety and Licensing, the agency’s records show.

K & D Mining, which started its Harlan County operations in February 2010, has at least 223 delinquent fines totaling $579,000, including interest, for safety violations back to March 2010, according to MSHA.

Napier’s other company, Neco Energy, has 167 delinquent fines totaling $58,723 for safety citations back to November 2010. Neco started operating that mine in October 2010.

Kentucky’s Office of Mine Safety and Licensing granted mining licenses to K & D and Neco. Outstanding federal fines do not affect that licensing, according to agency spokesman Dick Brown.

“The Office of Mine Safety and Licensing, as well as the other agencies within the Energy and Environment Cabinet, do not have the authority to shut down mining operations for unpaid MSHA penalties,” Brown said. “The Cabinet believes MSHA’s best remedy for collecting unpaid penalties is through the courts.”

Reporter James R. Carroll can be reached at (202) 906-8141.

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