A few weeks back, one of my clients had an accident at its crusher. From a legal perspective, the details aren’t terribly important. Two guys were hurt, one very seriously. He spent a week in the hospital and faces a long road of rehab ahead. The site supervisor sustained less serious injuries, but he too spent a couple of nights in the hospital. Both were tremendously lucky their injuries weren’t worse than they were.
My client emailed me about the accident around 10 days after it happened, looking for help defending against the paper MSHA issued during the investigation. I spent the next week or so running interference, trying to get the withdrawal orders terminated so the company could get back on track, because until those orders were lifted the company could neither take care of the accident scene nor return to production.
After things calmed down I had a chance to think about the lessons to be drawn from the experience. I’m not talking about how best to operate the crusher or clear rock jams. Those are way outside my skill set, and (apart from advising on regulatory requirements) I wouldn’t presume to tell professionals how to do their jobs. No, the lessons I’ve been thinking about are more focused on how the company could have prevented a bad situation – a serious accident, with serious Mine Act implications – from being any worse than it needed to be.
First, given the chance, here’s what I would have told my client as soon as the accident occurred. I would have told them that the supervisor in question should not have spoken with MSHA investigators. Legally, he didn’t need to. Under most circumstances, nobody ever has to speak to an MSHA investigator, even during an accident investigation. As the person supervising activities on site, and even as one of the guys who got hurt, he would be the very first person MSHA would be looking at for possible penalties under § 110(c) of the Mine Act. The company wanted to be helpful and cooperative, but there were other witnesses who could have supplied the relevant facts to MSHA. By talking with the investigator, the supervisor exposed himself to charges that he had unwarrantably failed to comply with safety regulations.
As a result of the supervisor’s sincere but misguided desire to share what he knew, the company received a § 104(d) citation and they’re now on the (d) chain. What’s more, we expect a special investigation into his actions to begin any day now. All that could have been avoided if the supervisor had simply declined to be interviewed during the investigation.
Second, the company had a lot of trouble with the MSHA inspector sent to follow up after the accident investigation. During the investigation, the company got a § 103(k) accident control order, the (d) citation, a § 104(g) order for untrained miners, and a bunch of § 104(a) citations arguably related to the accident. The inspector who handled the post-investigation phase was, to put it mildly, difficult. There are many good inspectors out there, but this guy did not seem to want to be one of them, and his unwillingness to play nice created a chain of problems as the company was trying to get back on track. The company needed to get its miners trained up to the inspector’s satisfaction so he would lift the § 104(g) order. They had to get the § 104(g) order lifted so they could get permission to do the work needed to get the (k) order lifted, so they could clean up the scene and carry out the repairs and modifications they needed to have the § 104(a) citations terminated.
They struggled mightily to create a training plan that would satisfy the inspector, who remained intransigent. His conditions shifted from email to email, and he repeatedly insisted the company ask the crusher manufacturer for materials even the manufacturer agreed did not exist. Days passed as the inspector held the company hostage to his demands. After a week-long impasse, we decided to bypass the inspector with a call to his field office supervisor who, to his credit, stepped in and imposed some much-needed adult supervision on his rogue inspector. After two or three good substantive conversations, the company was able to explain to the field office supervisor what it was doing and proposing to protect miner safety, and voila! Miners were trained, the orders were lifted, and the company was back in business. Going over the inspector’s head to his field office supervisor got everyone back on track and focused on safety and compliance once more. Second lesson learned.
And finally: I’m not one of those people who believes that every enforcement action needs a lawyer. Most mine safety professionals know what they’re doing and are perfectly capable of managing most of their own enforcement cases. That said, there are some times when a company can save time and heartache and yes, money, by picking up the phone and bringing its lawyer onto the team. A respectable lawyer (I’ll pause for a moment so you can make a “respectable lawyer” joke, since I know you want to) will tell you if what you’re dealing with is something you can handle on your own. Not every phone call to counsel results in a giant bill or ties you to a lawyer for days or weeks. Often, we can just point you in the right direction and remind you that we’ll be there if you need us. But sometimes, it helps to get one of us involved at the outset, so we can steer the investigation where it needs to go and help you avoid the legal difficulties that my client faced after the accident. We might have protected the supervisor from further enforcement, and we could have bypassed the inspector earlier and gotten the company back up and running more quickly. Of course, the first thing you need to do after a serious accident is to ensure that your folks are okay and get the help they need. Notifying MSHA needs to be your next priority. But once those things have been taken care of, a call to counsel is a prudent next step.
My clients were lucky; the accident was serious and two men were badly hurt, but they’ll be okay. Operations have resumed. But things would likely have gone better than they did, if only the supervisor had stayed out of the investigation, if the company hadn’t spent so much time dealing with an obstinate inspector but instead had gone to a respected and trusted field office supervisor, and if they had simply picked up the phone and called their lawyer sooner rather than later.
Willa Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group. She can be reached at [email protected]