How to formulate a game plan for MSHA special investigations

By and |  October 29, 2021
Headshots: Bill Doran and Margo Lopez

Bill Doran, left, and Margo Lopez are with the law firm Ogletree Deakins.

Although it is too early into the Biden administration to prove statistically, there is, nonetheless, anecdotal evidence of an uptick in Mine Safety & Health Administration (MSHA) special investigations under section 110(c) of the Mine Act.

Given the precipitous drop-off in investigations and the dispersion of investigation resources and personnel that occurred at the agency during the previous administration, this uptick is probably not surprising to many in the mining industry. It’s simply a first taste of the heightened enforcement focus the Biden administration promised.

Surprised or not, it is probably a good time to review the procedures and best practices for navigating this type of investigation.

What to know

MSHA initiates special investigations to review the circumstances underlying certain unwarrantable failure citations and orders.

The purpose of the investigation is to determine if any agent of a mine operator (i.e., supervisor, manager) knowingly violated the requirements set out in the standard cited in a citation or order. This can be “actual” knowledge (i.e., the supervisor directed or observed the activity or condition), or it can be “constructive” knowledge (i.e., the supervisor was aware of the activity or condition, or saw it in the past and took no steps to correct it).

Under section 110(c) of the Mine Act, a finding of a knowing violation by an agent of the operator can subject the agent to civil or criminal penalties. In addition to such penalties, a 110(c) violation can substantially hinder a supervisor’s career and undermine his or her credibility with respect to directing safety compliance.

For these reasons, it is critical that the arrival of a special investigator be treated seriously.

Steps to take

The first step in handling a special investigation occurs before the investigator ever arrives. Specifically, it happens when an unwarrantable failure (104d) citation/order is issued to the company.

At that moment, understanding that every 104d citation/order will be reviewed by the MSHA district office to determine if a special investigation is warranted, the management team should review the citation/order and determine if there are errors in the alleged facts or any mitigating circumstances that challenge the validity of the unwarrantable failure allegation.

If there are good facts, the operator should request an informal conference to try to get the citation/order modified to reduce the negligence allegations and eliminate the unwarrantable failure allegation. Without the unwarrantable failure allegation, there is no basis for a special investigation.

Barring any changes to the citation/order, the next step is to make sure all management personnel are aware of the possibility that an MSHA investigator might request an interview in the future and know what to do if that happens.

There will be no advance notice of the initiation of a 110(c) special investigation. Unlike MSHA discrimination investigations under section 105(c) of the Mine Act, a 110(c) special investigator will simply arrive at the operation – or even at a witness’s home – unannounced.

If personnel are prepared, they will know they can respectfully ask investigators for their contact information, point out that the company has procedures or resources to assist personnel in these types of investigations, and indicate that they are going to contact their supervisor or in-house counsel to determine the next steps.

At that point, the company or its counsel can usually negotiate an appropriate time in the future to conduct interviews or appropriately respond to any document request.

Final thoughts

Although it goes without saying that witnesses have the right to make their own determination about whether to immediately sit down with an investigator for an interview, we certainly believe it makes sense for witnesses – especially supervisors and managers – to have a few days to gather their thoughts.

In the great majority of cases, the investigator is ready for the interview. The witness, however, is not. Advance preparation and training can help avoid this pitfall and allow the investigation to move forward in a much more orderly and effective fashion.

Bill Doran and Margo Lopez are with the law firm Ogletree Deakins.

Featured photo: P&Q Staff

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