Getting the Shaft

A wrongful-death lawsuit suggests deep deficiencies in the state mine inspector's office.

WHEN AN ATTORNEY files a complaint against your office claiming your "grossly negligent" actions caused death and serious personal injury, you have more than a little litigation on your hands. You've got a big problem. State Mine Inspector Douglas K. Martin is just such a person. Martin is in big trouble.

Just before Christmas, Phoenix attorney Matt Millea and J. Patrick Butler of Tucson filed a formal complaint against inspector Martin and Grupo Mexico, the owner of Asarco Inc., in Pima County Superior Court. The complaint alleges the defendants are to blame for the wrongful death of Asarco copper miner Jose Villanueva, 58, and for injuries suffered by coworkers Joe Olson and Javier Vargas in an accident on January 31, 2000.

The accident was preventable, says Millea. Grupo Mexico knew Asarco was using hazardous mining methods and had a duty to stop them. But they didn't. The complaint states that Asarco employed unsafe mining methods to increase the company's profit. In doing so, Asarco disregarded its duty to provide "reasonable care" for the miners.

The complaint claims that Martin was grossly negligent in his performance of inspections at Asarco's Mission Mine--it was his gross negligence that caused the wrongful death of Jose Villanueva and caused personal injuries to Joe Olson and Javier Vargas.

The underground accident occurred when a 9-ton slab of rock struck the boom of a manlift in which Villanueva and Olson were working. They fell from the basket about 20 feet to the floor. Vargas was operating equipment nearby and was injured when the slab rolled off the boom and struck him.

Villanueva was pronounced dead at the scene. Olson and Vargas were rushed to Tucson area hospitals.

Millea told the Weekly he would try to prove Martin and his deputy mine inspectors are not performing inspections according to statute. "In fact," said Millea, "I don't believe they know how to conduct a proper inspection. I've had some of the (state) mine inspectors on the stand before. I have them on record. I know they don't know how to conduct a proper inspection.

"Martin and I have a basic disagreement over what the statute requires when it says underground mines shall be inspected four times a year," said Millea.

Millea maintains the statute is clear: Four inspections per year means four complete inspections. Martin, in contrast, maintains his employees can inspect a small portion of a mine and be satisfied that they have accomplished their statutory quarterly inspection.

The Office of the State Mine Inspector, said Millea, is more interested in protecting itself from adverse litigation than in protecting miners. "Martin even had a bill introduced last year to grant his office and staff immunity (from litigation)," said Millea. That bill didn't become law, but Martin already has a new one prepared for the upcoming legislative session.

The bill would provide the state mine inspector and staff with immunity on all issues save gross negligence, said Assistant State Mine Inspector Phil Howard.

The previous, failed bill sought to provide the Office of the State Mine Inspector with immunity even in situations where gross negligence was an issue, said Howard.

The current bill, which has yet to be assigned a number, will be introduced in February by Senator Rusty Bowers (R-Mesa).

Several years ago, Martin, who is the only elected state mine inspector in the country, had his statutory term limits altered to allow elections every four years rather than every two. Martin's campaign war chest enjoys strong support from industry, including mine managers and safety officers.

Martin's office employs only four inspectors to oversee 542 mines. Given that underground mines must be inspected four times a year and surface mines must be given a single once-over each year, staffers complain that it is impossible for them to inspect over 500 mines, conduct safety training and secure abandoned mines. Howard says that two additional inspectors are being requested in the fiscal 2002-2003 budget.

The number of inspectors is one issue; their qualifications are another. Mine inspectors are required to have four years of underground mine experience. No other professional experience is required. New inspectors do not receive specialized training before being sent out to the field. "At best we try to pair them up with an experienced inspector," said Howard, "but not for long."

Low pay is another big staff issue. Inspectors start at around $34,000 a year. That makes them easy targets for mining industry recruiters. Offers to inspectors to work in the private sector are common, and such offers--even when inspectors turn them down--raise questions of conflict of interest.

Recently, Howard said, one of the deputy mine inspectors turned down a $60,000 job offer from a mining company. To be a little more competitive with the private sector, the office will seek to raise the mean pay of a deputy inspector to $45,000 per year, says Howard.

Paychecks aside, attorney Millea says the inspection methodology is so poor that inspectors don't use checklists or inspection forms in the field; they simply take notes that are recorded and filed upon their return to the office. Howard confirmed the inspectors do not use checklists or forms. "We don't have standards for our inspectors," said Howard. The mine inspectors in the field work only with their wits and the confidence that they have seen it all before.

As for what they do see out there, Howard said complaints from miners could be acted on immediately depending on their severity, but minor issues would likely be cycled to the next scheduled inspection.

Given such conditions in the mining office, Howard told the Weekly that Governor Jane Hull did not support the previous immunity bill, but she has said that if the new bill made it to her office she wouldn't veto it.

With an endorsement like that, deputy mine inspectors might consider picking up a little personal liability insurance.

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