What's MSHA's Excuse this Time?

For more than two years, the Cook family has waited for answers about the coal-truck crash that took the life of Chad Cook, their son and brother.  Their long ordeal began immediately after 25-year old Chad's death, when an MSHA inspector decided that the fatal crash occurred on a public road and therefore would not be investigated.  The State followed MSHA's lead, and Chad's death was chalked up as a motor-vehicle accident, not deserving of workplace safety agencies' resources.  Too bad none of them told the Cook family.  

About a year later and as a last resort, Mrs. Gay Cook contacted Ken Ward of the Charleston Gazette to ask his advice on how to get information from MSHA or the State.  Curious as he is, and with a map and camera in hand, it didn't take the reporter long to determine that Chad Cook's death occured on mine property on a private road used exclusively by mine operator(s), and therefore should have been investigated by both MSHA and the State.  Now, one year later, MSHA has issued its investigation report, the most sorry excuse for an investigation I've ever read.

First, MSHA doesn't even get Chad Cook's age correct.  He was 25 years old, not 26.  If the agency can't even get that fact checked, am I supposed to have confidence in the rest of their report?

Second, MSHA states that their investigation is based on two pieces of evidence:

1. Photos taken at the scene by the inspector (the same one who determined it was not on mine property) and,
2. West Virginia State Police vehicle crash report, which consists of two, fill-in-the-blank forms, a diagram of the collision scene, and transcribed statements from five individuals who came upon the crash scene after the fact.

There is NOTHING in the investigation report describing any of the following:

• independent interviews with drivers employed (or previously employed) by Savage Services and their experiences on that road, and with general haulage truck maintenance
• an examination of accident reports or records of other coal truck crashes on the same road or at other Savage Service jobs
• information about how many tons of coal were loaded into the truck and whether over-loading could have been a contributing factor
• information about the safety training Chad Cook received concerning hauling on this road

At this point in time, one thing bothers me most about this case:  After MSHA utterly messed up by failing to investigate Chad Cook's death in the first place, you'd think they would want to redeem themselves with a tip-top, top-notch investigation.  But no, the Cook family gets this shoddy piece of work MSHA is calling its investigation report.

A few of my more forgiving colleagues wonder whether MSHA was hindered in some way with its investigation.  "Remember, Celeste," they say, "this crash happened more than two years ago.  What if Savage Services (Chad Cook's employer) failed to cooperate with MSHA, what if they wouldn't talk to the investigators, or wouldn't turn over records?" 

Well, if that's the case, then THAT should be spelled out loud and clear in MSHA's report.  Let their employees, potential employees, and the rest of the world know it.  Remaining silent tells irresponsible employers that this strategy works.

Over the years, I've heard MSHA officials remind miners and their families that the agency doesn't have the authority to compel employers to cooperate in investigations.  MSHA will say that they only have the authority to issue subpoenas when they conduct a public hearing for investigation purposes (and these are very, very rare events).  The S-MINER Act, which passed the House of Representatives earlier this year, is attempting to change that, by giving MSHA broad subpoena power.  Too bad the Administration opposes the bill.  

With MSHA relying solely on the State police report and photographs, I guess they didn't want to get too creative in making suggestions to possibly prevent similiar fatalities in the future.  The report concludes:

"...the lack of any physical evidence in conjunction with the length of time since the accident prevents the making of any recommendations to prevent a future event."

Huh?  Lapsed time and absent physical evidence doesn't mean there are no recommendations to be made.

When I examine the State Police report, it says there was a posted speed limit sign of 40 MPH.  (Evidently, a sign on the private mine road which is owned and maintained by Western Pocahontas Properties.)  The State Police report also indicates that  "exceeding the speed limit" was NOT a contributing factor in Chad Cook's death.  Instead, the box marked on the form is: "exceeding safe speed."

That tells me that the safe speed on this road, at least in the area where Mr. Chad Cook died, is LESS than 40 MPH.  The operator of the road---Western Pocahontas Properties---should change their speed limit sign.  Has MSHA asked them to make this improvement?  It sure doesn't seem like MSHA's asked for this improvement based on what's mentioned in MSHA's report.  What about asking the mine operator to add more signage near the downhill curves on the mine road, so drivers operating coal-loaded trucks know to take extra caution?  I'm truly perplexed by MSHA's attitude of late: a sort of defeatism, as if safety recommendations would be pointless. 

Finally, MSHA's report fails to acknowledge any responsibility on the agency's part for its failure to investigate Chad Cook's death immediately after it occurred.  Instead the agency shrugs off their error with:

"MSHA did not investigate the accident at the time it occurred because it was believed MSHA did not have jurisdiction over the road."

There's no mention in it that from November 2005 when Mr. Chad Cook died until Ken Ward's story ran, MSHA didn't even acknowledge this incident.  Then when Ward's story ran, the administrator for coal mine safety and health, Kevin Stricklin said:

"It looks like it was a mistake [failing to investigate it at the time it occurred], and we're going to try to correct it."

But then, MSHA officials decided that they still needed more time to determine whether the fatality was actually work-related.  So from April to November 2007, they were sleeping on it, or something.  The delay was infuriating and I wrote about it here.  Supporters of family-member victims of workplace fatalities (USMWF) collected more than 70 signatures on a petition urging MSHA to make a decision about investigating Chad Cook's death and to let the Cook family know about it promptly.  Apparently, it took this petition, a letter from a grieving family, and newspaper stories, to compel senior officials from MSHA and the Solicitor of Laborâs Office to correct their grievous mistake.

What I want to know is what MSHA has done to make certain this never happens again.  I would like to know whether MSHA's Office of Accountability, which Asst. Secretary Stickler created in November 2007, is examining the agency's performance in the Chad Cook case.

As the USMWF petition noted:

âThere are many injustices in this world and we all know life isnât fair.  For some matters, there is supposed to be a system of checks and balances.â

As I commented at the time:

"For the Cook family, that system of checks and balance completely failed.  Moreover, those checks and balances donât work on their own; there are individuals âsenior Department of Labor officials (i.e., Asst. Secretary Stickler, the Solicitor and Associate Solicitor of Labor, and the Admininstrator for Coal Mine Safety and Health) âwho have the responsible to make sure the system works properly.  These senior individuals failed in their duty, they failed Chad Cook and his family, and they failed all of the nationâs miners."

After reading the pages of MSHA's investigation report on Chad Cook's death, they've failed the miners again.  What's their excuse this time?

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Celeste Monforton, MPH worked at MSHA from 1996-2001.