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FeatureCompliance & Ethics Professional March/April 2012April 5, 2010 and claimed the lives of 29 ofthe 31 men working at this site. The articlereports that The Mine Safety and HealthAdministration (MSHA) issued a report thatputs the full blame for the horrific accident atthe Upper Big Branch Mine on PCC/Massey,the mine owner-operators. Clearly, the reportmakes a strong case for culpability and thereport details gross negligence in the company’sinspection process.Interestingly, five days prior to the catastrophe,the Department of Labor’s (DOL) OIG,through its Office of Audit, issued a report,titled Journeyman Mine Inspectors [in the MSHA]Do Not Receive Required Periodic Retraining,as required by the Federal Mine Safety andHealth Act of 1977 (Section 505). The reportnotes that “Journeyman [MSHA] inspectorsare required to receive one week of specifiedretraining each year, or two weeks everyother year.” In short, the DOL OIG found thatMSHA did not comply with the law. Further,the OIG described the effect of this non-complianceas follows:This increases the possibility that hazardousconditions may not be identified andcorrected during inspections which, inturn, could increase the risk of accidents,injuries, fatalities, and adverse health conditionsfor miners. 7Unfortunately, the recent MSHA reportdoes not deal with MSHA’s failure. However,the report does allude to the issuance of afurther report which will examine MSHA’sactions prior to the explosion and during therescue and recovery operation. The internalreview will evaluate the quality of MSHA’senforcement activities, “including any weaknesses,and the adequacy of regulations,policies and procedures.” Of course the issuanceof regulations, policies and procedures, aswell intentioned and needed as they may be, is“Of course the issuanceof regulations, policiesand procedures, as wellintentioned and neededas they may be, is aninadequate solution withouta management commitmentto enforce and complywith those rules that goesbeyond mere rhetoric.”an inadequate solution without a managementcommitment to enforce and comply with thoserules that goes beyond mere rhetoric.Let’s take a look at an example. H.R. 3697was introduced on December 16, 2011, about aweek after the issuance of the MSHA report. Itpurports to be a bill requiring improved minesafety practices. Sec. 604 of the bill mandatesthat the Secretary of Labor require “that eachmine inspector conducting inspections underthe Federal Mines Safety and Health Act of1977 receive a full additional week of training,in addition to the training that was provided toor required of such inspectors prior to the dateof enactment.” Inasmuch as DOL OIG previouslyfound that the MSHA did not complywith the requirements for training journeymaninspectors, what confidence should we havethat the DOL, through the MSHA, will complywith this requirement if enacted into law?The answer is found in the good will andintentions of the leadership and employees ofMSHA, which I do not doubt for an instant.The problem of course is that agency executives,both appointed and career, come and goand priorities shift. As a result, these requirementsrun the risk of simply being prioritizedoff of the agency’s radar screen through thepress of business, inadequate funding, etc.38 www.corporatecompliance.org +1 952 933 4977 or 888 277 4977
FeatureThe MSHA should take under considerationthe observation of the DOJ InspectorGeneral “to consider implementing a similarkind of [compliance] program.” An internalmanagement program to detect and preventviolations of the law in the future by theMSHA will provide for a systematic approachto identify risks of non-compliant behaviorand address those before they are found byan inspector general, Congressional oversight,watchdog group, and, more importantly,before the non-compliance possibly contributesto a tragic outcome.ConclusionThe DOJ OIG report focused its review on thequestion of whether the risk of non-compliancewill be avoided through the implementation ofa corporate-style compliance program. Whilethat is an important consideration, the effectof such a program on overall organizationalethics, the efficiency of operations by performinga task right the first time, and theenhancement of the overall public trust ingovernment institutions are anticipated but yetto be measured. There is both a strong philosophicand business case to be made on behalfof the notion of implementing corporatestylecompliance programs at all levels in thegovernment sector. The DOJ IG report is a welcomedendorsement of that case. ✵1. See “Senators Cite F.B.I. Failures as Chief Promises Change” by ScottShane, New York Times, 3/28/07.2. See “Make the FBI Follow the Law,” Boston Globe, 3/13/2007; “Breakup the FBI,” LA Times, Opinion by John Yoo (former DOJ official),3/21/2007; “Revise the Patriot (sic) Act,” Editorial, LA Times, 3/26/07.3. See United States Sentencing Guidelines, Chapter 8 et seq., particularlyUSSG § 8B2.1, for the elements of an effective compliance andethics program.4. Available at www.justice.gov/oig/reports/2011/e1201.pdf.5. In re Caremark International Inc. derivative litigation, Court of Chanceryof Delaware, Decided: Sept. 25, 1996.6. Available at http://rcgce.camlaw.rutgers.edu/sites/rcgce.camlaw.rutgers.edu/files/rcgce_whitepaper.pdf7. Report number 05-10-001-06-001, p. 3.Emil Moschella is Executive Director at Rutgers Center for GovernmentCompliance and Ethics in Ashburn, VA. He may be contacted atemoschella@camlaw.rutgers.edu.Help keep your program fully staffedList Your Job Openings with SCCEIt’s hard to have an effective compliance andethics program when you have openingsin your staff. To help ensure you fill thoseopenings quickly, list your compliance jobopportunities with the Society of CorporateCompliance and Ethics.Our online jobs board will put yourpositions on our website for 90 days andcosts just $400 per position. In addition,for each month you advertise with us, yourlisting is included in our monthly SCCEJobs Newsletter, which we send out to over13,000 email addresses.Don’t leave your compliancepositions open any longer thannecessary. Post your job listingswith SCCE today.Just visit us online atcorporatecompliance.org/newjobsor call us at +1 952 933 4977or 888 277 4977.Compliance & Ethics Professional March/April 2012+1 952 933 4977 or 888 277 4977 | www.corporatecompliance.org 39
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