MSHA Announces Results of June 2013 Impact Inspections

The Mine Safety and Health Administration ("MSHA") announced shortly after the massive explosion that killed 29 coal miners at the Upper Big Branch Mine in Montcoal, West Virginia that the Agency would begin conducting "impact inspections" of mines that merit increased enforcement activities due to poor compliance histories or particular compliance concerns.  The following characteristics will typically place a mine on MSHA's radar for impact inspections:  high numbers of violations or closure orders; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries, or illnesses; fatalities; adverse conditions such as increased methane liberation, faulty roof conditions, inadequate ventilation, and problems with respirable dust. 

Impact inspections do not mean only increased numbers of inspections at a particular mine.  Enforcement practices are also stepped up to include inspections during "off hours", such as evenings and weekends.  MSHA will deploy additional inspectors on impact inspections to ensure that the mine is more thoroughly inspected.  MSHA may even take control of the operator's phone and other lines of communication to prevent advance notice of the inspectors' presence. 

MSHA has released the results of its impact inspections for the month of June 2013.  Nine coal mines and four metal/nonmetal mines were subjected to impact inspections in June.  These mines were collectively issued 157 citations, 10 orders, and one safeguard. 

MSHA has conducted 629 impact inspections since April of 2010, issuing 10,640 citations, 980 orders and 45 safeguards as a result.  According to MSHA, the impact inspections have led to improved compliance.  The Agency's statistics purport to show that, since April 2010, total violations have decreased 18 percent in both coal and metal/nonmetal mines.  Significant and substantial violations have decreased by 23 percent in coal mines and 37 percent in metal/nonmetal mines.  Unwarrantable failure violations have seen an even sharper decrease, down 45 percent in coal mines and 65 percent in metal/nonmetal mines.  Operator-reported lost-time injuries have also decreased 9 percent in coal mines and 26 percent in metal/nonmetal mines.

The last place that an operator wants to find itself is on MSHA's radar for impact inspections.  Accordingly, it is important for operators to closely monitor its compliance history, challenge questionable citations and orders, and ensure that its safety practices meet industry regulations. 

West Virginia Supreme Court Decision on Liability of MSHA Inspectors Likely to Lead to Stricter Scrutiny of Mining Operations

On January 19, 2006, twelve miners became trapped inside Aracoma Coal Company’s Alma #1 coal mine in Logan County, West Virginia due to smoke and fire resulting from a belt fire inside the mine.  Ten of the miners eventually escaped the mine alive, but two of the miners, Don Bragg and Ellery Hatfield, succumbed to carbon monoxide poisoning and died.

An investigation conducted by MSHA after the accident found that attempts to extinguish the fire and contain smoke were inhibited by inadequate safety measures and that numerous violations of the Mine Safety and Health Act contributed to the cause and severity of the belt fire.  The MSHA investigation also found inadequacies in its own previous inspections of the mine.  Specifically, the investigation found that, although the mine had been cited for 95 safety violations as of late 2005, MSHA failed to issue citations for numerous other violations, failed to require the mine operator to take corrective action for such violations, and failed to follow clear agency policy regarding Section 103(i) inspections. 

Aracoma’s parent company, Massey Energy, reached settlements with the widows of Don Bragg and Ellery Hatfield as a result of the Alma #1 tragedy.  Some of its officials were also charged criminally.  But the widows’ search for retribution for the deaths of their husbands did not end with the coal company and its officials.  The widows also sued The United States of America claiming that its MSHA inspectors who were responsible for performing safety inspections at the mine were negligent in such inspections. 

The suit against the Government was brought in the United States District Court for the Southern District of West Virginia pursuant to the Federal Tort Claims Act (“FTCA”), which waives the sovereign immunity of the United States Government “for torts committed by federal employees acting within the scope of their employment ‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’”  Bragg v. United States, 2013 W. Va. LEXIS 47, 9 (W. Va. 2013)  (quoting 28 U.S.C. § 1346(b)(1) (1996) (2006 ed.).). 

The District Court, upon motion of the United States, dismissed the widows’ Complaint against the Government, holding that West Virginia law would not hold a private analogue to the MSHA inspectors liable for negligent inspections of the mine resulting in the wrongful death of the miners.  The widows subsequently appealed that decision to the United States Court of Appeals for the Fourth Circuit.  In turn, the Fourth Circuit certified the following question of law to the Supreme Court of Appeals of West Virginia (“The Supreme Court of Appeals”):

Whether a private party conducting inspections of a mine and mine operator for compliance with mine safety regulations is liable for the wrongful death of a miner resulting from the private party’s negligent inspection?

The Supreme Court of Appeals answered the certified question in the affirmative in its opinion in Bragg v. United States, issued on February 5, 2013, in which the Court held that “a private inspector who inspects a work premises for the purpose of furthering the safety of employees who work on said premises owes a duty of care to those employees to conduct inspections with ordinary skill, care, and diligence commensurate with that rendered by members of his or her profession.”  Bragg, 2013 W. Va. LEXIS 47 at 29.  The decision was based upon West Virginia case law holding that the existence of a duty to third parties is based primarily upon the foreseeability that harm may result if care is not exercised.  In the Bragg case, the Court found that it was forseeable to mine inspectors that that third-party mine employees could be injured where mine inspections are performed negligently. 

The implications of the Bragg decision will reach far beyond potential liability for MSHA.  MSHA has been under fire since the Aracoma disaster and even more so since the 2010 Upper Big Branch Disaster (“UBB”) for what some perceive to be relaxed inspection practices by MSHA inspectors.  The perception after UBB is that this criticism has made MSHA inspectors much more critical during their inspections of mining operations.  Minor safety issues or alleged violations of questionable validity that might have, in the past, been ordered corrected without a citation are now being cited. Obviously, MSHA inspectors would rather be reversed in the litigation of these questionable citations than to not issue a citation and later be blamed for an accident causing serious injuries or death.  The Bragg decision certainly provides additional and, assuredly more powerful incentive, for MSHA inspectors to subject mine operators to even stricter scrutiny under the Mine Health and Safety Act.

Latest Massey Guilty Pleas Put Advance Warnings Back in the Spotlight

On April 5, 2010, an explosion rocked Massey Energy's Upper Big Branch Mine ("UBB") in Montcoal, West Virginia.  The blast killed 29 Massey miners, making it the worst coal mine disaster in recent memory.  The disaster also spawned multiple investigations, which determined that the blast was caused, in part, by a dangerous build-up of methane gas that ignited and combined with a build-up of coal dust that perpetuated the explosion and resulting fire throughout the mine.  The investigations further determined that the safety hazards causing the explosion were the result of a conspiracy among Massey officials to make coal production a priority over safety and to conceal hazardous working conditions inside the mine. 

One of the practices allegedly used by Massey to cover up hazardous mine conditions was the provision of advanced notice to miners working underground that MSHA inspectors were going to inspect the mine.  Such a practice is a violation of 30 U.S.C. § 820(e), which  provides that "[u]nless otherwise authorized by this Act, any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be punished by a fine of not more than $ 1,000 or by imprisonment for not more than six months, or both." 

 Obviously, once the miners know that MSHA is on its way to the mine they can lay down rock dust (a substance used to control the combustibility of coal dust build-up) and "make things look nice", as Massey foreman Gary May recently admitted when he pled guilty to federal charges stemming, in part, from Massey's alleged scheme to provide advance notice of MSHA inspections. 

As a result of substantial criticism of its enforcement practices following UBB, including from members of Congress, MSHA has renewed its focus on advance notice.  The agency wrote dozens of citations for advance notice in the two years following UBB.  Several Massey officials have been the targets of criminal prosecutions relating, at least in part, to provision of advance notice of MSHA inspections.  The latest Massey official to plead guilty to such charges, David Hughart, indicated at his plea hearing that the conspiracy at Massey to provide advance notice of MSHA inspections was ordered from the very top official in the company.  When asked by a federal judge what officials ordered the policy of providing advanced notice, Mr. Hughart replied "the chief executive officer."  Although he did not name him, the CEO of Massey during times relevant to Mr. Hughart's plea was controversial and notorious CEO Don Blankenship.  Mr. Hughart is cooperating with the government, such that higher-ranking Massey officials, including Mr. Blankenship, could be targets of future federal prosecutions.

The guilty pleas of Mr. May and Mr. Hughart have put advance notice back in the mine safety spotlight.  There is no doubt that MSHA and federal prosecutors are focused on ensuring that miners are not tipped off to MSHA inspections so that they can cover up and conceal hazardous conditions that exist inside the mine during day-to-day operations.  It is also clear that, not only will provision of advance notice result in citations to the mine operators, but those that provide advance notice and those who order that advance notice be provided will be prosecuted to the full extent of the law.  Accordingly, coal company management and other company officials should avoid any practices that could lead to a suggestion that miners are being tipped off regarding MSHA inspections.