• MSHA Inspection Failures Poised to Increase Inspection Activities
  • February 13, 2013 | Authors: Curtis R. A. Capehart; Olen L. York
  • Law Firm: Dinsmore & Shohl LLP - Charleston Office
  • Two recent news items shine a spotlight on MSHA, its inspection corps, and several publicly acknowledged inspection failures. On February 5, 2013, the W.Va. Supreme Court published a decision that, for purposes of the Federal Torts Claim Act (“FTCA”), found the United States is liable for the wrongful death of two coal miners resulting from the admittedly negligent inspections performed by federal mine inspectors. Bragg et al. v. U.S., Case No. 12-0850 (W.Va. Supreme Court of Appeals) (February 5, 2013). Two days later, MSHA announced that it placed a mine inspector on probation for two years for falsely claiming that he had inspected six mining facilities in Tennessee from August 2011 through October 2011.

    Although the U.S. government is the responsible party for satisfying any judgment on a successful FTCA claim, the admitted and/or proven negligence of its subordinate representatives (such as the negligent inspections at Aracoma) is a reminder of the ongoing public scrutiny of the agency’s operations. In Tennessee, the failure of an inspector to actually inspect several mines opens the door for similar FTCA claims if any injuries or deaths occurred at these mines during that time or at other mines where this inspector performed. It may even spur enterprising personal injury attorneys to investigate this or other mine inspectors looking for noticeably low issuance rates as a potential basis for filing FTCA claims.

    Notably, in the aftermath of the mining fatalities in 2006, public scrutiny resulted in immediate amendments to the Mine Act, which increased enforcement actions, increased monetary penalties, and led to greater monitoring by the agency. However, despite the resulting increase in enforcement and penalties, subsequent fatalities and other serious accidents still occurred. Thus, additional waves of criticism have ebbed and flowed since the recent amendments.

    These news items certainly trip the radar of mine operators, raising an obvious question: How will these events impact regulatory enforcement, and more specifically, will the threat of liability under the FTCA improve (or reduce) the quality of enforcement and miners’ health and safety?

    All eyes will be watching with great curiosity. In light of the self-critical examinations in 2006 and of recent, inspection techniques and policies will likely be reviewed and scrutinized for perceived weaknesses. The agency will likely re-emphasize its “Rules to Live By” as a basis for targeting standards believed to be directly related to recent fatalities and serious injuries. However, recent history also suggests more inspectors, more inspections, more citations, and greater aggregate penalties to counteract any public outcry. Recent amendments and regulations purportedly empower the agency to do so, obviating the need for additional legislation. The recent changes to the pattern of violations (“POV”) standard, a constitutionally deficient change, which effectively eliminates the final order criteria and stifles operators’ due process rights, subject operators to more frequent and severe actions going forward. In combination, these implemented and anticipated changes forewarn of even greater increases in regulatory oversight.

    Accordingly, operators should expect increased frequency of inspections, increased duration of such inspections, and possibly an increased number of inspectors per visit - all as an effort to shield itself from future “negligent inspection” determinations. Moreover, multiple inspectors per visit may be the agency’s “buddy system” to prevent individual inspectors from wholly ignoring a mine, and shutting the door on future FTCA claims. In preparation for this uptick of enforcement activity, operators should scrutinize their present operating culture, develop a plan to identify and correct areas of weakness ripe for agency enforcement, and become proactive in their interaction with MSHA and its inspectors. Operators should also make a committed effort to carefully study any increased enforcement activity and determine whether these efforts are satisfying the mission of MSHA and the mining laws and regulations: protecting miner health and safety. If these actions are not improving miner health and safety, more aggressive industry-wide and/or operator-based action may be required.