A sign at the Mettiki mine site where Chad Cook died clearly marked the road as a private coal haulroad. Photo by Ken Ward Jr.

Mine Safety and Health News Editor Ellen Smith’s latest (and well justified — more on that later) criticism of MSHA’s public information policies included a brief mention of Ellen’s efforts to get a copy of the agency’s legal determination of what constitutes a haulroad under federal mine safety law.

And in her latest newsletter (subscription required), Ellen explained MSHA’s legal thinking, and provided a copy of the agency’s legal memo, which she pointed out was greatly redacted by MSHA before it was released.

Reading that got me thinking of a fellow named Chad Cook. He was the coal truck driver whose death prompted MSHA lawyers to engage in the esoteric legal exercise of deciding what constitutes a haulroad. And his legacy might eventually be that MSHA and state officials have to do a better job of investigating ALL mining deaths, and making public more information about why they decide certain deaths are not officially mining related.

Chad was killed on Nov. 8, 2005, when the coal truck he was driving ran off the Mountain View Mine Road and slammed into a guard rail along the Grant-Tucker County line. He was working for Savage Services, a contract trucking firm that was hauling coal from Mettki Coal’s preparation plant in Maryland to the Mount Storm Power Plant.

For a long time, it looked like his death wasn’t going to be counted by state or federal authorities … that it wouldn’t be thoroughly investigated or counted as a mining-related fatality.With very little investigation, these officials wrote off the death as a vehicle accident on a public road — something they said shouldn’t count as a mining death.

But Chad’s family never gave up. They hounded state and federal officials and the company, trying to get answers. Several lawyers told them they didn’t have a case and to move on. I got a call from Chad’s mother sometime in March 2007, and decided to look into the issue.

It didn’t take much time or effort … I simply pulled the company’s state permits and looked at the maps. It turned out that the road in question was part of Mettiki’s state mining permit. And when I drove up to the mine site, along W.Va. 93, there was a huge sign that warned drivers, “This is a private road and not for public use.” A smaller sign listed the road’s DEP permit numbers.

Confronted with these facts, and repeated phone calls from a nosy reporter, MSHA and the West Virginia Office of Miners’ Health, Safety and Training were forced to reopen their investigations and list Chad’s death as mining-related. Unfortunately, so much time had passed that the agency’s weren’t able to really do much of a probe. The result was a pair of  conflicting reports — one in which MSHA blamed Cook for his own death, and another in which state investigators rightly accepted the fact that their own failure to promptly investigate left them unable to draw any solid conclusions. Read the Pump Handle’s excellent discussion of the investigation reports here.

After those reports were published, Cook’s mother, Gay Cook, told me that the family believes state and federal investigators have failed them:

“I don’t think we’ll ever get our questions answered.  After two and a half years, I think I’ve had my fill. I don’t think anyone is going to do a proper investigation.”

As an interesting aside, when I drove by the Mettiki site a little more than a year later, in July 2008, that big sign identifying it as a private coal haulroad (the evidence) was gone. All that was left was a smaller sign that simply identified the mine site:

Photo by Ken Ward Jr.

But what about MSHA’s problem here — the agency’s failure to investigate in the first place, and its absurd initial decision that this wasn’t mining related? Ellen Smith has written about problems with MSHA’s “chargeability” determinations before, and I’ve followed up on some of her stories. After Sago, the Pittsburgh Post-Gazette jumped in and did some solid reporting on the issue.

In November 2007, the Labor Department’s Inspector General issued a report criticizing the method MSHA uses to determine if deaths are mining related. IG investigators did not find instances where MSHA decisions were “clearly contradicted by available evidence,” but identified instances of non-compliace with agency policies and “control and procedural weaknesses that increased the risk that such errors could occur.”

MSHA responded by issuing a new policy for determining if deaths were mining related. I’m not sure if the new policy is really that great, and I’d cite the example of one mine worker I wrote about — Ricky Collins, a Massey employee who was killed in March 2008 as an example — but one thing is for sure. MSHA is at least doing a better job of making public information about what deaths it considers mining related — and which ones it doesn’t.

It used to be that I had to file a Freedom of Information Act request every once in a while for a list of non-chargeable deaths. Now, MSHA puts information about those deaths on its Web site for everybody to see.

But even this could be easily improved, if MSHA would do a few simple things.

For example, the agency doesn’t post anything until a chargeability determination is made. Why not instead post a copy of the preliminary report of the fatal accident — or at least bare bones details about it — immediately after the death, with a note making it clear that no chargeability determination has yet been made? (Of course, I’ve been asking for years that MSHA post the short preliminary reports on mining deaths on its Fatalgrams page, and nobody at the agency seems interested in doing that). And,  why in the world does MSHA withhold the names of the miners from these chargeability determinations? I don’t think there’s any good reason for doing that.

Whenever President Obama gets around to appointing a new assistant labor secretary for MSHA, that person is going to have a pretty full plate. But clearly doing more to fix the chargeability policy is part of that. It would be a fitting legacy for Chad Cook.