When narratives are missing facts from MSHA investigations

By and |  November 8, 2019
If 21st century technology can improve both jobsite safety and production, there’s no reason not to embrace change. Photo: iStock.com/SeventyFour

The way MSHA communicates to the public what they think happened in a particular incident can be a challenge to aggregate producers. Photo: iStock.com/SeventyFour

When a serious accident happens at a mining operation, emotions can run high. This is especially true when the accident results in a fatality. After the immediate rescue and recovery operations, the operator and the Mine Safety & Health Administration (MSHA) will secure the accident scene and conduct an investigation.

Although every investigation is different, for the most part, both the operator and MSHA try to work in a cooperative, professional manner to determine the cause of the accident and identify steps that can be taken to prevent a reoccurrence. At the same time, of course, MSHA’s efforts in the investigation are also focused on enforcement, including the issuance of citations and orders and the assignment of blame.

The whole picture

One of the challenges in every investigation of a serious accident occurs when the agency starts to communicate with the public about what it thinks happened. This communication usually comes in the form of preliminary reports, alerts, final reports of investigation and press releases. These unilateral communications are posted on the agency’s website and are generally crafted to support anticipated or taken enforcement actions.

Operators are often shocked at the seemingly one-sided presentation and lack of context in these preliminary reports. The concern is that omitted information or context can unfairly affect the public perception of the company’s actions and safety commitment leading up to the accident.

For instance, in a hypothetical situation that involves a truck overturn accident on a haul road, the omission of the fact that the driver executed safe driving procedures on several haul runs immediately before the accident and the failure to mention company efforts to maintain the road can lead the reader to inaccurately assume the roadway was unsafe and the driver was not properly trained. This would be far from an accurate picture of the investigation findings.

Incomplete or inaccurate reports, alerts and press releases undermine the entire purpose of an investigation. If the goal is to learn from past mistakes and improve operating or training procedures that have been identified as ineffective, it is crucial that the record be accurate and complete.

Correcting the record

Invariably, this type of situation prompts phone calls to counsel about how this can be rectified. Is there any recourse for forcing the agency to correct or modify the information in a public release? The answer is mixed.
There is no formal procedure for challenging these public postings.

Generally, operators will contact district or headquarters personnel to raise concerns and request changes. With some rare exceptions, these requests are almost always rejected.

In the case of investigation reports, the agency argues the report represents the conclusions of its investigation team and that the critical information is included in the report.

Of course, what is critical is in the eye of the beholder. And that position certainly does not explain the agency’s refusal to correct facts and issues in reports that are ultimately undercut in litigation. In the end, operators are left with the option of writing a letter identifying the omissions in a report or alert and asking that it be included in the investigation record.

Sometimes operators issue their own press release to address the misperceptions created in the public.

Going forward

To be clear, this is not a call to end the agency’s public posting of investigation information. Disseminating information and lessons learned to the mining community is a core responsibility of the agency and serves a good purpose, but that community needs the whole picture. Reports and alerts are used by operators for training and development of best practices. If they have only partial facts, their instructions and solutions will not be as effective.

No one expects MSHA to give operators veto power over its public pronouncements. But the development of a greater willingness to consider sincere, substantive concerns and suggestions to correct the record would be a very positive step.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

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