Statewide Coal Safety Mine Review is Requested by West Virginia Governor Earl Ray Tomblin: Time to Watch the Watchers of Coal Mine Safety

WHEELING, WV, March 25, 2013

After the 4th death in 2 weeks, West Virginia Governor Earl Ray Tomblin has requested a statewide coal mine safety review.

February of 2013 began with one of the most auspicious decisions for coal mine safety, and workplace safety, in the history of West Virginia. In Bragg v. The United States of AmericaBragg v. The United States of America, a unanimous Supreme Court of Appeals of West Virginia paved the way for coal-mine-disaster victims to seek accountability and compensation from negligent safety inspectors and careless government officials.

The Bragg case arose out of the Aracoma Coal Company's Logan County mine disaster in 2006. An accumulation of coal dust in that mine caused a fire that trapped miners below ground, injuring several of them and ultimately killing Don Israel Bragg and Ellery Hatfield. Unavailable and nonfunctioning safety equipment doomed these men to an entirely preventable death.

Aracoma's safety violations were egregious, including numerous violations of the Mine Safety and Health Act. An investigation revealed that although MSHA had detected ninety-five (95!) different violations of its regulations in this mine alone. Dozens more were not even written up and few, if any, were the subject of compelled corrective action. The investigation into MSHA's performance yielded proof of scandalous behavior by MSHA, including a "gross misallocation of inspector resources" and "a lack of initiative to appropriately conduct . . . inspections."

When the widows of Bragg and Hatfield filed suit seeking to hold the inspectors accountable for the negligence that killed their husbands, the United States government fought the widows tooth and nail. Their case was dismissed outright by a federal district court, but the widows appealed to the United States Court of Appeals for the Fourth Circuit in Richmond. The case came to revolve around whether a private inspector would be liable for carelessly performing his duties in reviewing the safety of a mining operation.

The Fourth Circuit determined that this issue was one of state law and therefore "certified a question" to the Supreme Court of Appeals of West Virginia as to whether or not the inspectors could be held liable under West Virginia state law. On January 5th, the highest court in West Virginia delivered a detailed, scholarly opinion that provides a path to justice for the victims of mine disasters, clarity for the law of West Virginia, and, most importantly, accountability for mine inspectors who fail to pursue their duties assiduously.

The Supreme Court of Appeals examined West Virginia precedents in negligence law, focusing particularly on whether a safety inspector may be liable for carelessness not only to those who hire him or her, but also to third parties who are hurt or killed as a result. The Court concluded that, given the likelihood of injuries if inspections are poorly performed, and the importance of guarding against them, it was proper to impose negligence liability on inspectors when miners or other third parties are harmed by unreasonably poor inspection work. According to Justice Davis' opinion:

We conclude that these factors weigh in favor of finding that a safety inspector owes a duty of care to the employees whose safety the inspection is intended to secure. That is to say that it is foreseeable that harm is likely to come to such employees if a safety inspection is negligently performed.

Sadly, the very same week that the Bragg decision became law of our State, we learned that regulators are still not citing mine operators who ignore new regulations enacted to prevent coal dust explosions. Ken Ward, Jr., of the Charleston Gazette, published an article on February 2nd, with extensive details about dozens and dozens of instances where regulators have let us down. Ward, Jr., "W.Va.'s new coal dust standards go unenforced," Charleston Gazette, 2/2/13. In many cases, regulators take the trouble to go into the mine, test the amount of rock dusting being used to suppress the danger of explosion, find that the mine is not in compliance with new standards and then fail to cite the mine for failure to comply and opt not to force the mine to improve the conditions.

The responses to this news elicited from mine safety regulators can only be described as chillingly indifferent to the danger represented by their failure to enforce the rules. Essentially, regulators describe the lack of enforcement as a "work in progress." These comments reflect the very same attitude that led to the deaths of Bragg and Hatfield in Aracoma, among so many other miners who have died underground in our state's history.

The last several years have seen legitimate progress in the area of enforcement and accountability for mine safety in the State of West Virginia. Federal prosecutors have secured convictions of higher ranking coal mine employees than were seen in the past in the Upper Big Branch prosecutions. Authorities have also pursued real investigations of companies that defraud mine inspectors. The Bragg decision by our Supreme Court of Appeals opens the way for judges and juries to step in as well, and hold lackadaisical and negligent government officials' feet to the fire when the rules are broken. The new regulations that our leaders and our people demanded in the wake of Upper Big Branch should not sit unenforced in dusty books because of lack of attention to detail, cozy relationships between the regulators and the regulated or bureaucratic indifference.

The reports regarding light, or even absent enforcement of critical new safety regulations indicate that there is still much work to do. It is sometimes said that it is the task of the living to make meaningful the sacrifices of the dead. Far too many men have lost their lives in preventable coal mine accidents in the State of West Virginia to accomplish that, but every West Virginian can be proud of the opinion issued by our highest court in Bragg. This case gives West Virginia a chance to have the accountability and enforcement needed to put an end to preventable deaths underground.

Christopher Regan is an attorney at Bordas and Bordas, PLLC, in Wheeling, West Virginia and practices law in the area of worker safety, among others. He can be reached through his law firm's website at www.bordaslaw.com.