In addition to the three types of accidents described above, 30 CFR 50.10(d) requires reporting of “[a]ny other accident” within 15 minutes and 30 CFR 50.2(h) discusses many of the scenarios.
To report the accident, call MSHA’s nationwide, 24-hour call system at 1-800-746-1553. Prior to an accident occurring, it’s best to designate a single individual and two alternates as the MSHA contact person. Ensure that no one alters the accident scene or resumes work at the location of the accident. With certain specific exclusions dealing with saving lives or protecting property, unless a mine operator has permission from MSHA, the operator cannot alter the accident scene and must preserve it.
As soon as possible following the accident, contact counsel. An MSHA lawyer is extremely vital in navigating you through this accident. Counsel should review any documents and physical evidence before or while MSHA conducts its own review. Counsel can also interview witnesses and ensure that a proper chain of custody is maintained for evidence, while at the same time preserving the confidentiality of certain materials and information.
Duty to Investigate the Accident
Operators are required by section 103(d) of the Mine Act to conduct their own investigations of all immediately reportable accidents, and all occupational injuries. Under section 103(d), “records of such accidents and investigations shall be kept and the information shall be made available to [MSHA] and the appropriate state agency.” The following information is required to be obtained, recorded and maintained by the mine operator for each immediately reportable accident or occupational injury: (1) date and hour of occurrence; (2) date the investigation began; (3) names of individuals participating in the investigation; (4) a site description; (5) an explanation of the accident or injury, including a description of any equipment involved, relevant events before and after the occurrence, any explanation of the cause of injury, and the cause of any accident or cause of any other event which caused an injury; (6) name, occupation, and experience of any miner involved; (7) a sketch, where pertinent, including dimensions depicting the occurrence; (8) a description of steps taken to prevent a similar occurrence in the future; and (9) identification of any report submitted under 30 CFR 50.20.
Mine operators should be extremely careful when completing the report in order to avoid self-incrimination. The contents of a mine operator’s accident report have repeatedly been used against the operator to prove a violation. Because of this, it is highly advisable that the operator should have counsel assist with the report.
Sections 103(j) and 103(k) of the Mine Act give MSHA broad authority to take appropriate action to protect the life of any person at the mine. Under section 103(j), MSHA may issue orders of withdrawal to protect lives at the mine and include in that order instructions that prevent the destruction of evidence of violations or the cause of an accident. MSHA may also take direct control of mine rescue operations. Section 103(j) orders are typically issued before MSHA is on-site at a mine accident. They are usually issued verbally over the phone before being reduced to writing later. Upon MSHA’s arrival on-site and following assessment of conditions, MSHA may modify the section 103(j) order, including all instructions, to reflect that MSHA is proceeding under the authority of section 103(k) of the Mine Act. Section 103(k) of the Mine Act grants MSHA representatives broad power to order withdrawal from the mine and to prevent entry of any person without MSHA approval. The statute also requires an operator to obtain MSHA’s approval of recovery operations and decisions to return mine operations to normal. A section 103(k) order remains in effect until an evaluation of the conditions and safety practices is conducted and a determination is made that hazards similar to those that caused or contributed to the accident have been eliminated.
MSHA’s accident investigations are typically conducted by a team of investigators and usually involve three phases: an on-site physical examination of the accident scene and applicable records and documentation; interviews with witnesses who have knowledge of the conditions or practices that may have contributed to the accident; and analysis and testing of mining equipment or material that may have been involved in the accident. It’s important to understand that all statements made to any MSHA official or documents produced to MSHA may be used to prove violations by the company or individuals.
After the Accident
The investigating team may be on the mine site over a period of several days or weeks in order to complete the physical investigation and witness interviews. Once the investigation is complete, the investigation team will hold a close-out conference. Eventually, the team will submit a report recommending either no action or civil or criminal penalties against individuals or the company. The report will include MSHA’s analysis of the root cause of the accident. MSHA will take other steps as well, including conducting a “regular” but intensive inspection, concentrating on the subject areas cited as the cause(s) of the accident. Being proactive during the accident investigation and partnering with counsel will be the best way to navigate the challenges of a mining accident.
Linda Otaigbe is an attorney in Jackson Lewis’ Washington, D.C., region office. She focuses her practice on both general employment litigation and workplace safety and health matters. She can be reached at 703-483-8300.