Legal counsel in accident investigations

We have been asked what happens during a Mine Safety & Health Administration (MSHA) accident investigation and what we, as counsel, do in an investigation.

All accidents must be reported to MSHA within 15 minutes by calling 800-746-1553. The MSHA definition of “accident” is not intuitive. Of the many immediately reportable accident events detailed in the MSHA definition, fatal accidents are most critical. MSHA investigates fatal accidents immediately.

All fatalities at a mine must be reported, even if due to natural causes or non-mine events. They will not be chargeable as a mine accident unless a mine event triggered the death (such as running to put out a fire causing a heart attack). Also, if a mine event – such as blasting – were to cause death to someone off the property, it must be immediately reported to MSHA.

Initial response

Once an accident occurs and is reported, the operator must preserve the accident scene and prevent the destruction of evidence. MSHA will contact the mine by phone to obtain a status report and will order that the scene be maintained undisturbed, apart from rescue or recovery actions. An inspector from the local office will be dispatched to issue a § 103(k) “control order” to ensure safety, prevent entry to the area (except as authorized by MSHA) and preserve evidence.

MSHA will assemble an investigation team from one or more offices. Local inspectors are not usually included because their actions before the accident will be reviewed along with operating conditions and practices at the mine.

Accident investigation

Once the official team is on site, there will be a preliminary conference in which MSHA will ask for a succinct history of the mine and basic facts surrounding the accident and the victim. The investigation team will then view the accident scene and take photographs and pertinent measurements. Once MSHA has obtained basic accident facts, it will file a preliminary report with MSHA headquarters. The agency sometimes utilizes this report in initial press releases.

MSHA will then conduct witness interviews. The scene will be revisited as necessary. Many accidents require technical analysis for which MSHA brings in engineers from its technical support division. While the factual and technical analysis is being conducted, the agency will also usually assign a representative from the agency’s education field service to audit the company’s training compliance.

The focus of MSHA’s investigation is to gather sufficient evidence to prepare an investigation report that establishes the circumstances that contributed to the accident. The conclusions in the report will also form the basis for citations and orders alleging violations of mandatory safety and health standards. In most accident investigations, the report and related citations and orders are not issued for several months.

Investigation dynamics

Almost every accident investigation produces surprises. What often starts as a seemingly uncomplicated evaluation of facts can quickly turn into an aggressive agency search for evidence of management culpability.

This investigation and interview process establishes the record that will form the basis for MSHA’s allegations of violation and the company’s related defenses. It is crucial that the record be accurate. The assistance of counsel during this process is critical to ensure company rights and fair investigation procedures are maintained.

Counsel helps to ensure proper and fair procedures during the investigation process by assisting companies with a number of areas, including:
◾ Post-accident shock and emotion in the workforce
◾ Company communications with family
◾ Accident scene control and evidence preservation
◾ Positive and constructive interactions with MSHA
◾ Communications with state and local agencies asserting jurisdiction
◾ Negotiating acceptable procedures with MSHA
◾ Limiting inappropriate overreach by investigators
◾ Advising regarding witness participation in MSHA interviews
◾ Conveying the importance of absolute truth and accuracy in testimony
◾ Explaining witnesses’ personal rights to participate or defer participating
◾ Representing the company in interview sessions to ensure clear and fair questions

Counsel’s overall goal during an accident investigation is to ease the company through a difficult process and protect legal rights.

Michael Heenan and William Doran are with the national labor, employment and safety law firm Ogletree Deakins. Contact them at michael.heenan@odnss.com and william.doran@odnss.com.