Mine operator personnel, especially mine safety professionals, are sometimes uncomfortable preparing for the possibility of an accident investigation.
This feeling is understandable, and the elimination of unsafe conditions and actions should certainly take priority. However, given the significant enforcement liability established by the Mine Act for operators and their supervisory personnel, it’s important to have a plan for responding to an accident, as well as understand the procedures MSHA will follow if an accident occurs.
Rescue & reporting
Without a doubt, a critical first step in any accident response is to effectuate a rescue and ensure the safety of all personnel.
Still, the agency would assert that an equally important step – taken in conjunction with these efforts – is to report to MSHA (800-746-1553) any event that falls within the 12 definitions of “accident” at 30 C.F.R. §50.2(h) within 15 minutes.
Most mine operators are familiar with these definitions, with the most discernible being “a death of an individual at a mine” and “an injury to an individual at a mine which has a reasonable potential to cause death.” MSHA sees this reporting requirement as critical because the agency wants to be able to respond promptly, secure evidence and have an opportunity to oversee the safety of rescue and recovery efforts.
In that regard, once an accident is reported, the operator is required to preserve the accident scene and prevent the destruction of evidence. MSHA will contact the mine to get a status report, and it will order the scene to be maintained undisturbed, apart from rescue or recovery actions.
Throughout the investigation, the mine operator will have to negotiate and provide written plans to modify this order to enable access and abatement efforts.
In fatal accidents, MSHA will assemble a team comprising inspectors from nonlocal offices – usually led by a field office supervisor. MSHA generally does not utilize local inspectors because their inspection activities could potentially become a focus of the investigation. This concern is not as prevalent in nonfatal accident investigations.
Once this team is on site, there is usually an initial conference to discuss the status of rescue and recovery efforts, obtain general information about the mine, and gather basic facts surrounding the accident and information about the victim and witnesses.
At this conference and throughout the investigation, MSHA may also ask for documents like workplace exam reports, pre-ops and training records. It’s important that the operator designate a specific individual to receive these requests to enable streamlined review and response. Companies often designate their counsel for this role. Most companies anticipate these requests and begin compiling these documents before MSHA arrives.
Following this preliminary meeting, the MSHA team will travel to the accident site, accompanied by mine personnel, to examine the scene and take photographs and pertinent measurements. Once the team has compiled basic accident information, it will file a preliminary report with MSHA headquarters.
The agency sometimes utilizes this report in initial press releases and in fatality alerts containing recommended best practices. These reports, alerts and press releases will be posted on MSHA’s website.
When sufficient background information is gathered, investigators will conduct witness interviews. These are voluntary, and witnesses can be accompanied by counsel or management personnel if they choose. The accident scene will be revisited as necessary as more information develops in interviews.
Investigation teams also often include nonenforcement personnel because many accidents require specialized, technical analysis. The agency will sometimes bring in engineers from its technical support division. MSHA will also assign training specialists to audit training records and compliance. Mine operators generally accompany these personnel in the same way they accompany investigators.
MSHA investigations
The goal of MSHA’s investigation is to gather evidence to prepare an investigation report that establishes the factors that contributed to the accident. The conclusions in the report will also form the basis for citations and orders.
In most accident investigations, the report and related citations and orders are not issued for several months. The company also has an obligation under MSHA’s Part 50 regulations to conduct its own investigation and prepare a report. There is no deadline for this report specified in the regulations.
Understanding and preparing for this process – one that hopefully never happens – will ease the burden everyone experiences after an accident.
Bill Doran is with the national labor, employment and safety law firm Ogletree Deakins. He can be reached at william.doran@ogletree.com.
