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Archive for July, 2012

Aracoma Widows Win Small Victory in 4th Circuit

Posted by Ellen Smith on July 17, 2012

In an unpublished decision, the U.S. Court of Appeals for the 4th Circuit has given a small victory to the families of Donald Bragg and Ellery Hatfield, killed in the 2006 Aracoma mine fire in West Virginia.
The families filed a negligence and wrongful death action against MSHA under the Federal Tort Claims Act, arguing that MSHA was negligent in it’s safety inspections of the Aracoma Coal Co.’s Alma Mine.
The 4th Circuit ruled that a West Virginia Court must determine, or answer the question, of whether a private party conducting inspections of a mine and mine operator for compliance with mine safety regulations could be liable for the wrongful death of a miner resulting from the private party’s negligent inspection. If the lower court were to find that a private party could be held accountable, then the widows’ lawsuit against MSHA under the Federal Tort Claims Act may move forward.
District Court Judge John Copenhaver Jr. dismissed the action in February 2011because, in his view, under West Virginia law, a private person under like circumstances to those alleged against MSHA would not be liable in a negligence action for the wrongful death of the miners. (18 MSHN 71; Feb. 11, 2011). Judge Copenhaver called the case “undeniably tragic,” but placed the blame for the miner’s deaths squarely on the mine operator, saying it was the mine operator that created the hazardous conditions that led to the Jan. 19, 2006 mine fire at the former Massey Energy-owned mine.
In his decision, Copenhaver noted that the widow’s might have had a case if they could establish liability for a private person under West Virginia law.
After Copenhaver’s decision, the attorney for the widows, Bruce Stanley, said, “while building contractors can collect money damages from architects for project overruns, dead miners’ families cannot collect damages for MSHA’s decision not to do its job.”
In ruling in favor of the two widows, the 4th circuit noted that MSHA’s investigation also revealed the inadequacies of its own previous inspections of the Mine.
The appeals court court wrote, “For example, by late 2005, MSHA inspectors issued 95 citations to Aracoma Coal for safety violations but failed to ‘identify and cite numerous violations that were in existence, neither did they require the mine operator to take corrective actions.’ Likewise, MSHA personnel ‘failed to follow explicit Agency policy regarding Section 103(i) inspections [i.e., spot inspections]’ by failing to ‘undertake reasonable efforts to detect mine hazards’, through a ‘gross misallocation of inspector resources,’ and by exhibiting ‘a lack of initiative to appropriately conduct Section 103(i) inspections.’
“ Accordingly, MSHA determined that its own inspectors were at fault for failing to identify or rectify many obvious safety violations that contributed to the fire. In relation to
training, MSHA concluded that its inspector ‘assigned to inspect the [Mine] did not determine whether the [atmospheric monitoring system] operator[, who ignored the CO alarms during the fire,] was adequately familiar with his duties and responsibilities, even though this determination was required of and understood by the inspector.’ The MSHA investigation also revealed
that ‘[a]n adequate inspection by MSHA [of the atmospheric monitoring system (“AMS”)] would have identified the deficiencies with the AMS, including the fact that no alarm unit had been installed.’ In relation to the ventilation controls, the MSHA investigation confirmed that its inspectors, ‘demonstrated a lack of initiative to identify basic violations . . . even though the unmarked doors and missing stoppings were obvious and easily identifiable. . . . [such that] an adequate MSHA investigation . . . would have identified the missing stoppings’ The MSHA investigation also revealed that other contributing factors to the fire including its ‘inadequate’ inspection of the conveyor belts and its ‘ineffective use of MSHA’s enforcement authority’ in issuing citations for accumulated coal dust.”
The 4th Circuit continued in the decision to outline MSHA’s failures including “conflicts of interest may have contributed to its inspectors’ inadequate and ineffective inspection and enforcement of the Mine’s compliance with mine safety regulations: The internal review team has concluded that mine inspectors neglected to issue citations in some situations in which citations were justified and that mine inspectors on occasion underestimated [Aracoma
Coal’s] negligence and/or the gravity of the hazardous conditions when violations were cited. . . . The failure to propose more significant civil penalties likely interfered with the deterrent value that civil penalties are designed to have under the Mine Act. . . . [The internal review team believes that some of the identified deficiencies may have stemmed from the relationship that MSHA developed with Massey Energy Company representatives in early 2001. . . . [U]sing
enforcement personnel in this manner to assist the Aracoma Coal Company with its compliance efforts may have created a conflict of interest that, over time, may have affected the level of scrutiny MSHA provided at [the Mine] during subsequent mine inspections.]”
The case now moves to the West Virginia Supreme Court of Appeals.
DELORICE BRAGG, as Administratrix of the Estate of; DON ISRAEL BRAGG; FREDA HATFIELD, as Administratrix of the Estate of; ELLERY HATFIELD, v. UNITED STATES OF AMERICA, CA 4 No. 11-1342 (unpublished).

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MSHA Going After More Delinquent Fines

Posted by Ellen Smith on July 13, 2012

MSHA announced that it’s going after 3 operators in New England for delinquent fines.

The first complaint, filed in the U.S. District Court for the District of Connecticut against American Industries Inc. in Jewett City, Conn., seeks to collect unpaid civil penalties of $24,628 assessed against the construction sand and gravel operation, plus interest.

The second complaint, filed in the U.S. District Court for the District of Massachusetts against R.J. Cincotta Co. Inc. in Waltham, Mass., seeks $144,847 in unpaid civil penalties assessed against the crushed stone operation, plus interest.

The third complaint, filed in the U.S. District Court for the District of New Hampshire against Raymond Sand and Gravel in Raymond, N.H., seeks $98,249 in unpaid civil penalties assessed against the sand and gravel operation, plus interest.

The suits were filed by the Labor Department’s Regional Office of the Solicitor in Boston.

For too long, the issue of delinquent fines has been ignored by the government. I have no sympathy in these cases.

One does not need an attorney for these cases. The Federal Mine Safety and Health Review Commission judges give a lot of leeway to operators who are representing themselves. The judges are also extremely gracious in reducing penalties when operators offer proof that they could be put out of business under the computer-generated penalties that MSHA proposes.

There is no excuse to ignore citations and ignore penalties.

The “level playing field” is that each operator has to be responsible.

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