Recently, the West Virginia Office of Miners’ Health, Safety and Training cited Patriot Coal for failing to ensure that a mine’s roofs and walls were properly supported—a failure that may have contributed to the deaths of two coal miners on May 12, 2014, at the Brody Mine in Boone County.[1] The accident occurred while the miners were engaged in a mining technique known as “retreat mining,” also called “pillaring,” where miners extract coal by starting at the rear of a mine and remove coal pillars used as support columns.[2] The removal of one of the pillars may have caused the violent release of pressure in the coal walls resulting in the implosion of the mine—a phenomenon known as a “coal outburst.”[3] The accident occurred just three days after a similar outburst occurred in another Patriot Coal mine located only 100 feet from the site of the tragedy.[4]

In addition to the prior outburst on May 9, the Mine Safety and Health Administration (MSHA) issued numerous citations to the mine for safety violations in the time between April 1, 2013 and May 12, 2014.[5] Last year, federal regulators cited the mine for a “pattern of violations.”[6] There are also reports of similar mine-collapse accidents occurring at the Brody Mine in the past.[7] These prior safety violations could have a significant impact in determining the type of compensation that may be awarded to the families of the deceased miners.

While employers are sometimes shielded from liability by West Virginia’s Workers’ Compensation laws, injuries stemming from accidents where an employer is aware of a dangerous working environment may give rise to employer liability stemming from “deliberate intent.”[8] In these situations, an injured employee may recover damages for deliberate intent in addition to Worker’s Compensation relief. In past instances of “outburst” accidents, the West Virginia Supreme Court has ruled that a mining company may be liable for Deliberate Intent damages when the company is aware of a specific unsafe working condition.[9]

All too often, workers are unaware of their rights under West Virginia Law—rights intended to both compensate victims and their families, and to hold violators responsible for their actions. West Virginia’s deliberate intent laws are important tools to both help West Virginian’s protect their rights and to improve workplace safety. While we don’t yet know all the facts surrounding the tragedy at the Brody Mine, such accidents are unacceptable to the extent that they are avoidable. Former Patriot Coal CEO, Richard Whiting previously stated that “we’re not only after zero fatalities, we’re after zero incidents. We believe that all workplace incidents are preventable.”10 Workers have a responsibility to both themselves and their fellow workers to hold employers liable for failing to provide safe and secure working environments. Miner Safety must be a priority for all miners, especially in “retreat mining.”