Have you noticed the increase in mine accidents in recent years? Did you follow the news when Bush appointed Richard E. Stickler - to head the Mine Safety and Health Administration (MSHA) - after he had been rejected by Congress as unfit? Then you will not be surprised that a new Inspector General report finds gross failures in MSHA's accident investigation procedures. Truly, there has been a cave-in and that cave-in is at the offices of the agency charged with protecting miners.
crossposted from unbossed.
The Department of Labor Office of Inspector General Mine Safety and Health Administration (MSHA) report finds that MSHA has failed to comply with basic standards of impartiality in its death investigations and failed to compy with reforms it announced earlier this year.
Evidently those reforms were put in place to paper over MSHA's gross failures and to get the watchdogs off its back.
Here are some of the details from the report.
Lack of independence in 42% of investigations
The DOL IG examined a sample of 31 cases from calendar year 2004-2006 in order "to test the independence of accident investigation team leaders and members. In 13 cases (42%), the lead investigator, team members, or both, did not meet MSHA’s independence standard."
This lack of independence of investigators is pervasive. It means that investigations into mining deaths is made by biased investigators whose investigations are reviewed by biased reviewers or no reviews took place and the initial report thus stood.
First Responder Bias
The IG report found that the initial findings were made by people whose job ratings depended on finding that a death was not caused by lack of mine safety. In MSHA language, those deaths were found to be "nonchargeable".
The MSHA’s Accident/Illness Investigations Procedures Handbook (Handbook) did not address the independence of first responders. To secure the quickest possible response, MSHA officials stated that the first responder was frequently the MSHA inspector assigned enforcement responsibility for the reporting mine. Both CMS&H and MNM management stated that if the first responder made an initial decision that the fatality was likely to be non-chargeable, that individual was often the only MSHA investigator assigned to the accident scene. As a result, an individual who did not meet MSHA’s independence standard often influenced the scope and manner of the subsequent investigation by making the initial chargeability decision.
. . .
This exception granted significant discretion to the District Managers to make the initial determination related to the chargeability of a fatality. However, the District Managers’ independence was impaired because their individual performance assessments were connected to the mining fatality rate in their districts. This created a potential incentive to determine fatalities were non-chargeable. The Handbook’s exception to the independence protocol was therefore available for those cases where there was the greatest risk that fatalities would be misclassified, due to the incentives created by the District Managers’ individual performance standards to conclude fatalities were non-chargeable.
Improperly finding that a death was not chargeable means that needed changes to prevent more deaths are not made.
Required Reviews Were Not Made
MSHA's February 2007 regulations require that reports concerning fatalities be reviewed by a panel to ensure there is no bias and that a fair report has been made However, this did not in most cases.
In fact, only 1% of case reviews complied with this requirement.
MSHA Headquarters officials did not consistently perform an evaluation of non-chargeable fatality decisions as required by MSHA’s policy prior to February 2007. MSHA’s revised policy corrected this previous deficiency. Secondary review could have mitigated concerns about the independence of the initial decision-maker, identified potential errors, and assured consistency. Omission of these secondary reviews voided those benefits.
Under the MSHA policy in place prior to February 2007, all non-chargeable fatality determinations by District Managers had to be reviewed and concurred in by the appropriate Administrator. Prior to the Administrator’s review, the policy stated that five senior staff would review the case and provide their input. Those officials included the Accident Investigation (AI) Program Manager, the Chief of Health, the Chief of Safety, the Administrator’s Special Assistant, and the Deputy Administrator.
Only 1 of 79 cases (1 percent) in our sample had been reviewed by all of the designated officials. In fact, most (23 of 36; 64 percent) of the CMS&H cases in our sample had been reviewed by only one or two of the officials; 2 of 36 cases (6 percent) had not been reviewed by any senior staff. Most (25 of 43; 58 percent) of the MNM cases in our sample had been reviewed by four of the designated officials and all cases had been reviewed by at least two officials.
The IG sent the report to MSHA for comment as to how it would bring the agency into compliance. The response was to agree to comply but to give no timetables for compliance - a sure recipe for a continued failure to meet our commitment to safety in the mines. The IG made the following recommendations:
[W]e did identify instances of non-compliance with MSHA policies and control and procedural weaknesses that increased the risk that such errors could occur. We found that investigators and decision-makers lacked independence, investigative procedures were inconsistent, and investigative documentation was sometimes lacking.
Recommendations
The OIG recommends that the Assistant Secretary for MSHA:
- Develop and implement a standard protocol for first responders.
- Develop policies and procedures to require that the initial chargeability determination for all reported fatalities be made by an individual outside of the district in which the fatality occurred.
- Include a member on the Fatality Review Committee who is not a current or former employee of either the Department of Labor or a mine operator.
- Publish summary information on all reported fatalities, both chargeable and non-chargeable.
- Establish and require a standard investigative protocol for all reported fatalities.
- Require that a chargeability determination be made only at the conclusion of a complete investigation and considering all pertinent and available evidence.
- Establish a system to assure that all facts and information used to reach a chargeability decision are supported by documentation.
Here is the IG's summary conclusion describing how MSHA responded to these - and other - findings:
The Assistant Secretary generally agreed with our recommendations. His response proposed corrective actions for Recommendations 1, 2, 4, 5, and 6, but provided no completion milestones. As a result, these recommendations remain unresolved pending estimated completion dates.
He suggested further discussion with the OIG regarding possible options for including an outside party on the Fatality Review Committee (Recommendation 3). This recommendation remains unresolved pending a specific corrective action and an estimated completion date.
Finally, the response provided insufficient information to determine whether MSHA would develop a system to assure that facts and information used to reach chargeability decisions are supported by documentation (Recommendation 7). This recommendation will remain unresolved pending a specific corrective action and an estimated completion date.
U.S. Department of Labor Office of Inspector General Office of Audit, MSHA's Chargeable Fatality Determinations Need Better Controls Report No.05-08-002-06-001