Keeping up with crisis management

By |  August 17, 2016

So a serious or fatal incident has taken place at your mine. A 911 phone call has been made, and a mine rescue team has been assembled.

Now what?

Because serious and fatal incidents are rare, the best course of action for a specific incident may not readily present itself to mine operators. The best first step is one operators can take long before an incident occurs: develop a thorough and detailed crisis management plan.

“There are issues to consider when you develop your crisis management plan,” says Karen L. Johnson, an attorney at Denver-based Jackson Kelly who delivered a National Stone, Sand & Gravel Association (NSSGA)-hosted webinar presentation focused on crisis management. “You want to think about eliminating legal liability. The plan also needs to address how you work with HR folks and the inner relationship between HR people and the employees.”

According to Johnson, a producer’s response within the first 24 hours after an incident sets the tone for an investigation.

“If you can maintain control of that investigation right at the start, your response is going to be that much more effective and smoother than an individual or company that has no plan in place and is kind of playing it by ear,” Johnson says.

Responsibilities

A good starting point to build an effective crisis management plan is to assign certain tasks to individuals. Roles should be defined, Johnson says, but no template exists for all producers to follow.

As an example, a plant manager can be tasked with managing rescue and recovery efforts at one plant while somebody in another role at another plant handles those same efforts.

“It’s dependent on what works best for you and your property,” Johnson says.

Regardless of who handles what, operators should ensure responsibilities are assigned for a number of incident-related areas. Rescue and recovery is one such area, and roles should be understood long before an incident occurs.

“Some mines have in their crisis management plan that one person will be assigned to go to the front gate and guide the ambulance in,” Johnson says. “Or, there may be somebody who needs to man the phone to communicate with MSHA (the Mine Safety & Health Administration) or first responders.”

Photo: iStock.com/Enrico Fianchini

Aggregate producers are encouraged to develop a detailed crisis management plan. Photo: iStock.com/Enrico Fianchini

Another consideration is to determine who’s responsible for alerting MSHA about the incident. Once a person at a mine site with the authority to call MSHA has information to conclude that a serious incident has occurred, a phone call must be placed within 15 minutes of that moment. MSHA will verbally issue a 103(j) order over the phone, and operators will be tasked with securing the accident scene.

“You may have to designate who’s in charge of the scene, who is going to guard the scene or make sure it’s not accessed by anybody who is not authorized,” Johnson says.

The Occupational Safety & Health Administration (OSHA) also must be notified, although operators are given more time to alert OSHA about injuries and fatalities, according to Johnson. Because MSHA will be on site in the case of a serious or fatal accident, operators should assign someone to serve as the point person for immediate agency requests. This person doesn’t have to be a company employee, Johnson says, and they can be a contact for OSHA and other agencies.

“I have acted in this role myself in a number of investigations,” she says. “[This person] may be in-house counsel that comes to the site for investigation. It might be corporate safety. You have to figure out who is the best person to handle this.”

Document control is another component of crisis management.

“This is a big one in part because documents start flying back and forth in these serious investigations,” Johnson says. “You may get multiple people from an MSHA investigation party asking for documents. You want one person to be your document czar.”

A document czar knows which documents have been requested, which have been released to agencies and which have been withheld.

“You want everyone on your team knowing all documents have to be handled by that document czar,” Johnson says.

After all, any document that is turned over to one agency is available to all through a Freedom of Information Act request.

“Anyone can submit [a request] to a federal agency,” Johnson says. “Under the Sunshine Act, the federal government has to respond to that request by producing all documents that are responsive. They will redact certain information but not all of it.”

Family communications

Family member and survivor assistance is another area to incorporate into your crisis management plan.

“If you have not gone through a fatal accident investigation, you would be surprised by the amount of effort and time dedicated to family and survivor assistance,” Johnson says.

She recommends tasking a top HR representative with handling communications and interactions with families.

“Often, we see family expecting or requesting that the company pay for a variety of expenses such as food or bringing family in from other parts of the country,” Johnson says.

The people whom mine operators should contact may not always be obvious. For example, if an employee has children from a previous marriage, additional phone calls may be in order to notify next of kin.

“You don’t want family members to learn about it from the news,” Johnson says. “You need to have personnel files handy and make the calls to the appropriate designated people.”

According to Johnson, communication with family members is one of the most difficult crisis components to manage.

“Especially in this day of texting and cell phone usage,” she says. “Often, there’s been a [report]. You try to manage it as well as you can and make sure you have a designated point person to communicate with the affected family members.”

Family members aren’t the only survivors mine operators should keep in mind, she adds. A company’s employees may have a range of needs following an incident.

Summon a grief counselor and make that person available to employees for about a month after an incident, Johnson suggests.

“This sort of event has a significant impact on your employees,” she says.

Also, how will your company handle the media if reporters have questions following a serious or fatal incident?

“When I think about media interface, the main things that come to mind are the camera shots we all saw of Anderson Cooper standing outside the gates of the Sago Mine,” Johnson says. “Typically, we’re not going to see that sort of media response unless we have a multiple fatality-type of situation.”

But that doesn’t mean a media response won’t be had. So who’s going to be tasked with handling the local newspaper, television stations or other media outlets that want in? And what message is your company prepared to deliver?

“If the media is involved you have to have an appropriate person to respond as necessary,” Johnson says. “Oftentimes, mine operators will hire an outside company to act in that capacity. There’s nothing wrong with doing that, because you’re going to have to determine what your message [will] be. It may be delivered by an employee, but [an outside company] can help you deliver your message.”

Who has authority?

MSHA has jurisdiction over any serious or fatal incident that occurs on a mine site, but mine operators may be required to notify other agencies in the wake of such an incident. If operators aren’t aware of the agencies they must notify, they should familiarize themselves with that information, Johnson says.

“The state mine inspector’s office will also have jurisdiction,” she says. “There are times when those two entities may not necessarily get along, but you’ve got to be cautious of both being on the property.”

The local sheriff’s office may also claim jurisdiction, presenting a sticky situation to operators.

“They may tell you they need to enter the scene and take a look at things to perform their own investigation,” Johnson says. “Your initial response will be that MSHA has issued a 103(j) order. You’re stuck in the position of, ‘Do I let the sheriff go in and I maybe get in trouble with MSHA?’”

In such a situation, operators are advised to inform the sheriff about the mine’s obligations yet allow the local authority to enter the scene if the demand is made.

“Then you have to explain to MSHA what happened,” Johnson says. “Say, ‘Here’s what the sheriff did and here’s how we handled it.’ Then let them fuss about who has the primary authority.

“This early on can become one of the most difficult parts of crisis management,” she adds. “But this typically goes away fairly quickly once the local folks realize MSHA has the primary jurisdiction.”

Liability assessment

Investigations, on the other hand, generally aren’t quick processes. Who in your company will head an internal investigation? Is this something a corporate safety representative should handle? Should safety representatives from other company sites be sourced? Should a site manager and a safety representative manage the investigation together?

These questions should be answered long before an incident occurs because a mine operator’s investigation starts immediately following an accident, according to Johnson.

“The first thing you have to do right at the outset is assess the types of injuries to the employee,” Johnson says. “You have to do this right off the bat for the MSHA requirement of immediate notification. Your folks on the ground need to be looking at the event and evaluating the extent of injuries to the point of whether this is one of those that is immediately reportable to MSHA.”

As an investigation progresses, operators may discover that an individual is at fault. If this discovery is made, operators may want to consider having a different attorney represent that individual, Johnson says.

Products can also be at fault.

“Think about the number of accidents that involve pieces of equipment,” Johnson says. “If that particular piece of equipment was defective such that it provides a basis for a product liability claim against the manufacturer, that’s something you as a company need to evaluate.”
Take a haul truck that has a brake failure as an example.

“You as an employer want to determine if [you] have a basis for a product liability suit, and the manufacturer of that haul suit will be interested in the causation to determine whether they have any potential liability,” Johnson says.

A manufacturer’s requests can be tough to handle. Mine employees may have good working relationships with manufacturer representatives, Johnson says. But mine operators should put their interests before the manufacturer’s.

“Because of the potential for third-party liability against the equipment manufacturer, bringing that manufacturer in to assist in your investigation may not necessarily be the best thing,” she says. “Their interest is in protecting themselves, and they will certainly try to deflect any instance of defective product and push the liability onto the mine operator and away from the equipment manufacturer.”


Should you make the call?

The Mine Safety & Health Administration (MSHA) offers a definition of mine accidents in Title 30 of the Code of Federal Regulations Section 50.2(h). The severity of an incident sometimes comes into question among mine operators, but Karen L. Johnson, an attorney at Denver-based Jackson Kelly, says these incidents always warrant a phone call to MSHA:

  1. A death at a mine
  2. An injury that has reasonable potential to cause death
  3. An unplanned inundation of a mine by liquid or gas
  4. An unplanned mine fire that is not extinguished within 30 minutes

Your legal obligations

What if a serious or fatal incident has taken place at your mine, and contact with the Mine Safety & Health Administration (MSHA) has been tried but not successfully made? What are your legal obligations going forward?

According to Karen L. Johnson, an attorney at Denver-based Jackson Kelly, the Mine Act places responsibility on mine operators to preserve the accident scene and ultimately allow MSHA to investigate.

“I would secure the scene and guard it in anticipation of MSHA showing up,” Johnson says. “I wouldn’t remove the equipment or continue mining until you are absolutely sure MSHA isn’t going to come out and investigate.”

Johnson has not, however, experienced an instance in which MSHA did not return a mine operator’s phone call alerting the agency about an incident.

“Sometimes [a return call] takes awhile depending on the day and time of day,” she says.

Generally, MSHA responds in one of two ways, Johnson adds. The agency will either immediately issue a 103(j) order to secure the scene or, depending on the initial details of the incident, it will ask for regular updates and make a decision to investigate the scene at a later time.


Information for this article was gathered from a presentation by attorney Karen L. Johnson, which was part of NSSGA’s AGG1 Online Webinars series. Learn more about the series at www.nssga.org/education.

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