MSHA ignoring MINER Act?

Mr. Martimiano Torres, 37, was finishing up his 12-hour shift at about 5:30 am at the  Hallett Materials aggregate operation on Oct 1, 2008, when his pick-up truck curved off the road into a dredge pond.  He drowned.  The surface mine is located in Porter, Texas, outside of Houston, and owned by the multi-national corporation CRH.    MSHA released today its investigation report of the fatality involving Mr. Torres, asserting:

"...the accident occurred because the victim did not maintain control of the pickup truck";  and

"Root Cause: the victim did not maintain control of the pickup truck he was operating";  and

 "The miner did not maintain control of the pickup while it was in motion."

Well, well.  Let's just blame the victim and call it a day.

The report notes that the "mine operated two 12-hour shifts per day, five days per week," but says nothing at all about how many consecutive shifts Mr. Torres worked.  There's loads of empirical evidence on the health and safety risks associated with extended work shifts (see 2004 NIOSH review), including the association between sleep deprivation and impaired reaction time and difficulty processing information.   

Did MSHA consider at all his long work-shift and night work (circadian disruption) as a root cause of his death?   It is imperative that official investigation reports of the circumstances surrounding an individual's work-related death contain such information.  I can hear critics say (including those inside DOL) "we don't have a standard on work hours; we can't mention that in our report."  I wholeheartedly disagree. 

A key purpose of an accident investigations is to determine the cause of the event and the means to prevent it in the future.  Besides his long overnight shift, what about a barrier an adequate barrier around the dedge pond, or illumination for the workers traveling this route at night?  Look at the photo of where Mr. Torres died. Does it look like safeguards are in place around the pond?   Knowing that you have workers driving around that bend in the pitch dark after 10,11, 12 hours on the job?  Not to me.  But yet, in the case of MSHA's investigation of this 37-year old miner's death, the only "cause" listed in MSHA's report is inappropriate finger pointing at the victim.  The agency tries to beef up its conclusion by reporting "inspection of the pickup truck did not reveal any defects."  Feel better?  I don't.

Now, onto how MSHA is ignoring the MINER Act.

As you'll recall after the January 2006 Sago disaster, Congress passed and Pres. G.W. Bush signed a law that instituted new protections for the nation's miners.  One provision entitled "Prompt Incident Notification " requires a mine employer to notify MSHA 

"...within 15 minutes of the time at which the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred."

"The operator...who fails to provide timely notification to the Secretary...shall be assessed a civil penalty of not less than $5,000 and not more than $60,000."

So why didn't MSHA issue a citation against this mine operator for failing to report within 15 minutes the missing worker, Martimiano Torres, 37?  The best I can tell, the company was at least 4 hours late contacting MSHA.  But neither in this investigation report nor in MSHA's enforcement data is a citation for violating the 15-minute notification rule.   The chronology of events goes like this:  

"At 8:18 a.m., [the dayshift supervisor, Gayton] received a telephone call from Marta Errera, Mr. Torres' girlfriend, who stated Torres had not yet returned home.  Gaytan called Jose Garcia, lead man, who confirmed that Torres had not clocked out at the end of his shift. A search was then started to find Torres."

"About 8:30 a.m., Garcia found tire tracks leading into the dredge pond but there was no sign of Torres or his pickup truck.  Gaytan phoned for emergency medical services.  Divers from the Lake Conroe rescue team arrived and searched the dredge pond. The divers dragged the dredge pond with a magnet and found the pickup truck.  Torres was found about 15 feet from the pickup truck [and Mr. Torres] at 2:45 p.m."

"On the day of the accident, MSHA was notified at 12:52 p.m. by a telephone call from Frank Johnson, vice-president [Hallett Materials], to MSHA's emergency hotline.   [The MSHA] investigation was started the same day.

This single death won't get as much attention as the coal mine disasters that have killed multiple miners in recent years, but that's no excuse for MSHA failing to throw the book at this aggregate company and any employer that violates their duty to provide a safe workplace.