Addressing ‘flaws’ in the Mine Act

“It’s human nature not to see your own failings,” Means adds. “It’s human nature as a matter of individuals, and it’s projected onto a whole agency. It’s human nature for an agency not to see flaws in its performance and to blame someone else – like a mine operator.”

A number of other laws build in mechanisms that take human nature into account, Means says. He points, for example, to the Federal Aviation Administration (FAA) as the regulatory agency overseeing aviation safety. But when an aviation accident occurs, the FAA isn’t the agency conducting the investigation. That distinction goes to the National Transportation Safety Board (NTSB), an independent agency Congress charges with investigating civil aviation accidents.

“It’s the same with railroad accidents,” Means says. “The FRA (Federal Railroad Administration) regulates railroad safety, but when there’s a railroad accident it’s the NTSB that investigates. Pipeline accidents are the same way.”

According to Means, it’s sound practice to have a third party investigate under such circumstances.

“Because you really want to know the cause of that accident so you can prevent recurrences in the future,” he says. “If you blame the mine operator when it was actually in part or in whole MSHA’s fault or a third party’s fault – and you don’t identify the defect in either the law that allowed it to occur, the regulation that was too badly crafted or a failure of enforcement – then the real cause of the accident is not going to get exposed and corrected so it doesn’t happen again.”

Lessons to learn

Although Means aims to expose flaws in the Mine Act with his newly published novel, he says mine operators who read “Copper Canyon” can learn two other valuable lessons.

“First, watch out for special investigators,” Means says. “They’re the scarier side of MSHA. There are great special investigators and there are bad special investigators. Just like there is good and evil in mine supervisors, there is good and evil in MSHA personnel. There are some very dangerous special investigators who are deceitful and dishonest who will intimidate miners and try to implicate supervisors when they interview them.”

Second, Means learned throughout his career that foremen, or on-site supervisors, are in a dangerous position under the law because they are a mine operator’s “eyes and ears” on mine sites, leading workplace safety and production.

“If something goes wrong and there’s an accident, he’s the first one you look at to find fault,” Means says. “It’s a terrible situation to be in and a very difficult task. I think more training needs to be provided for frontline supervisors – not just in doing the production job but about their own legal responsibilities, liabilities and how to protect themselves as a legal matter.”

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