As the summer months approach, the mining industry is getting ready for another busy year. Early reports on material demands look to build on a productive 2022, and mines are ramping up production.
While the industry prepares for a busy summer, the Mine Safety & Health Administration (MSHA) is as well.
Unfortunately, the mining industry has experienced a spike in fatal injuries to start 2023 – totaling 17 by the start of May. Chris Williamson, assistant secretary of MSHA, penned an open letter to the mining industry discussing the trend, seeking industry partnerships to stem the increase and warning that MSHA will do what it feels it must through enforcement.
In the coming months, the industry can expect MSHA to utilize any enforcement tool at its disposal, including some not utilized in years.
Impact inspections
During the Obama administration, MSHA began completing what it called impact inspections – otherwise called monthly targeted inspections on MSHA’s website.
These are meant to target specific mines demonstrating what MSHA considers justifications for more inspection time. These justifications can include enforcement history, operator tactics, inadequate exams, hazard complaints and hotline calls.
While the real details behind these justifications are vague, when a mine is selected, MSHA will arrive with a group of inspectors. The inspectors will go off separately to scrutinize every area of the mine.
This poses the dilemma for operators of how to accompany each inspector.
While it is difficult to be ready for an impact inspection no matter how well-trained and prepared we are, it underscores the importance of having multiple persons at a mine proficient in accompanying MSHA while on-site.
Related: OSHA, MSHA enter 2023 with new policies
Safety alerts & initiatives
MSHA is required to conduct its 2s and 4s – two inspections per year at surface mines and four inspections per year at underground mines – so the issuance of safety alerts and creation of safety initiatives is not a tool to get on-site, which is how OSHA uses emphasis programs.
These alerts and initiatives give us an idea of where MSHA will focus inspections, and they allow MSHA the option of issuing citations under higher negligence designations when non-compliance is found.
In the opinion of MSHA, any time a safety alert is posted to its website, the entire industry has been placed on constructive notice of the alert. The same attitude applies to MSHA’s fatalgrams and fatality reports. The agency expects that production operators and independent contractors are tracking these alerts, fatalgrams and initiatives for those that apply to each company’s operations.
If any of the materials, recommendations or best practices produced by MSHA apply to a company’s operation, it is expected that the company will review these for application or refresh training in accordance. If MSHA were to find similar issues of non-compliance at a company’s mine which were addressed in these materials, the inspector could easily use this as a basis for issuing citations with higher negligence or even unwarrantable failures.
These tools, especially safety alerts, are not new but are being issued by MSHA at a higher rate in 2023. Companies should pay attention to these and consider how each may apply – if at all – to its mining operations and act accordingly if so.
Conclusion
MSHA is looking to play its part in creating a safer mining industry, especially in the immediate future stemming from the rash of fatalities.
Prepare for MSHA to be on-site. Inspectors will be at every reported mine in the country this year. Train multiple persons to accompany MSHA and be prepared to exercise the company’s rights during an inspection and when deciding whether to contest citations.
Most importantly, train your teams to be familiar with your company’s safe work practices and procedures, incentivize your teams to work safely, and quickly investigate and correct any unsafe behaviors or conditions.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.
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