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Better Enforcement and Safety Programs Might Have Saved Lives
By John Stahl, Esq.
The House Committee on Education and the Workforce (Committee) conducted a March 27, 2012, hearing on the 2010 West Virginia mining tragedy at the Upper Big Branch (UBB) mine. The Committee concluded that the mine operator disregarding safety standards caused the fatal explosion. The Committee also cited a lack of enforcement by the Mine Safety and Health Administration (MSHA) in the U.S. Department of Labor as a significant factor.
The relevance of both the tragedy and the Committee’s conclusions to workers’ compensation issues extends beyond 29 miners dying while engaged in activity “within the course and scope of their employment.”
The evidence that the mine operator actively disregarded serious threats to the deceased miners’ health and safety suggests that the principles of the “intentional tort” exception under workers’ compensation law might apply. That exception provides that workers’ compensation law is not always the exclusive remedy for work-related harm if that injury resulted from an employer not taking reasonable safety precautions. The philosophy behind this is that workers’ compensation is not designed to grant an employer a license to engage in negligence that endangers employees.
Experts who testified at the hearing included Joseph Main, who is the Assistant Secretary of the MSHA, and United Mine Workers of America (UMWA) president Cecil Roberts.
A primary theme of Main’s testimony was that the MSHA’s inability to always have an inspector at every mine necessitated providing that agency the authority and other resources that ensuring that mine owners operated safely required.
Main concluded as well that “the physical conditions at the [UBB] mine that lead to the coal dust explosion were the result of a series of basic [disregarded] safety violations.” These offenses included granting mine workers advance notice of MSHA inspections to hinder inspectors’ efforts to detect health and safety violations. Additional offenses were not complying “with the mine’s approved ventilation and roof control panels” and not conducting “adequate on-shift, pre-shift, and weekly examinations.”
Identified general deficiencies in MSHA inspections in the UBB mine’s district included inspectors not consistently identifying “deficiencies in the mine operator’s program for cleaning up accumulations of loose coal, coal dust, and float coal dust.” Main also reported a history of inspectors not identifying “certain violations as potentially ‘flagrant,’ even those these violations met the internal [MSHA] guidance criteria for considering a violation for a flagrant designation.”
Another portion of this testimony addressed reforms that the mining disaster prompted. Broad responses included whistleblower protection for miners who reported hazardous conditions, more stringent rock dusting requirements, and prohibiting advance notice of inspections.
Roberts reiterated much of what Main stated regarding the UBB mine’s operator subverting inspection efforts and other safety initiatives. Roberts’ perspective differed in observing both that the mine was non-union and that concern regarding losing their jobs prevented mine workers who “worked in an atmosphere of fear and intimidation” from reporting unsafe conditions.
Cited deficiencies regarding MSHA’s enforcement activity included not:
• Inspecting every area of the UBB mine;
• Inspecting every area of the UBB mine;
• Identifying inadequacies in the coal and coal dust program, or
• Properly enforcing "the required incombustible content of rock dust to mine dust."
One reform that Roberts advocated related to a fundamental workers’ compensation principle. He concluded that the Federal Mine Safety and Health Act entitling miners to a maximum of one week of wages when violations necessitated shutting down a mine often required that a miner choose between meeting basic needs and reporting dangerous violations.
The concern that Roberts expressed is analogous to laws that are designed to ensure that asserting workers’ compensation rights does not jeopardize a claimant’s ability to put food on the table.
The tragedy likely would not have occurred if the employer and the MSHA had fully met the duties of care that they owed every mine worker.
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