Pit & Quarry, December 2013

BY MICHAEL T HEENAN MSHA investigation focus M SHA conducts three major types of investigations accident investigations special investigations and discrimination investigations Trends are changing and MSHA is shifting its emphasis to certain areas over others Regular inspectors who are assigned to investigate the specific incident conduct these investigations They are assigned from a different local because there may be issues related to whether or not local inspectors were doing their job MSHAs district office and headquarters supervise the work of the investigators and an official report is issued The definition of accident in the Federal Mine Safety Act of 1977 is broader than fatalities It includes mine explosion mine ignition mine fire or mine inundation or injury to or death of any person By regulation MSHA has broadened this definition to include such things as entrapment rock outbursts instability of impoundments and mine events that cause bodily injury or death to persons off mine property MSHA rarely conducts formal investigations into non fatal accidents This can be attributed to limited resources because accident investigations can take more than a year to complete Special investigations Special investigators not regular inspectors conduct special investigations While special investigators may have been regular inspectors a special investigator needs to be specially designated and trained for this special role Special investigations are initiated most frequently after a company is charged with unwarrantable failure to comply with a mandatory standard A majority of unwarrantable failure charges are reviewed to determine whether one or more managers or supervisors may have knowingly authorized ordered or carried out the violation If it appears on review that this was the case then a special investigation is opened A special investigator will show up at the mine without prior notice That does not mean the company is compelled to proceed at that moment because legal rights are at stake and persons involved are entitled to legal representation Special investigations aim at collecting evidence to establish personal culpability and liability of corporate managers and supervisors and sometimes higher level officials Evidence is gathered in document requests and personal interviews with those who are targets of the investigation and also with others who have information The investigators prepare questions and write the answers given as they are understood There are no verbatim transcripts Misunderstandings by both questioners and interviewees are all too common particularly with unrepresented witnesses Special investigations are down these days way down For instance in 2009 125 cases arising out of special investigations resulted in personal civil penalties and a few cases went to the Department of Justice for criminal prosecution Last year there were only five civil penalty cases and no referrals for criminal prosecution The inspector general of the Labor Department recently criticized MSHA finding that the agency is deficient in processing 70 percent of the special investigations In 2012 MSHA processed a record 224 discrimination complaints from employees who claimed they were fired or treated adversely for a variety of reasons including making complaints to the company or MSHA from earlier investigatory work Reduced prosecutions may take some pressure off operators but it is important to understand why this is happening Discrimination cases MSHA is prioritizing discrimination cases because the Federal Mine Safety and Health Act mandates deadlines on those cases In 2012 MSHA processed 224 discrimination complaints the highest number ever from employees who claimed they were fired or treated adversely as a result of making complaints to the company or MSHA refusing to perform an unsafe job talking to inspectors or other protected safety activity MSHA wants to encourage miners to assert their rights without fear of retaliation now or later MSHA has a statutory duty to enforce the provision of the Mine Act that states No person shall discharge or in any manner discriminate against or cause to be discriminated against or otherwise interfere with the free exercise of statutory rights of any miner representative of miners or applicant for employment The law does not require the complaining miner or job applicant to prove a safety concern was justified only that the miner believed in it and Continued on page 76 www pitandquarry com December 2013 PIT QUARRY 75