The Mine Safety & Health Administration’s (MSHA) “new year” begins Oct. 1 each year, but for many of the construction and mining operations nationwide, spring is the “new year.”
With that, MSHA inspectors once again descend upon operations, sometimes for the first time in half a year or more, looking for items that were overlooked or not repaired, replaced or maintained to standard.
Unlike the Occupational Safety & Health Administration, whose inspectors may not visit a jobsite for years unless directed to for a complaint or accident investigation, MSHA inspectors will be on-site at least twice per year for surface operations and at least four times per year for underground mines.
Still, most mine operators and contractors know that with compliance follow-up visits and spot inspections or complaint investigations, MSHA’s presence on-site can be much more frequent than the mandatory minimum.
Proactive preparation
To prepare for MSHA’s imminent arrival, mine operators should look their operations over for any of areas of non-compliance, but especially for MSHA’s favorite items to cite.
The list below is based on MSHA’s most frequently cited standards in 2020 for surface sand and gravel and stone operations, focusing on a few prevalent standards that can be issued with higher severity by inspectors.
■ 30 C.F.R. §56.14107(a) – “Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.”
■ 30 C.F.R. §56.14112(b) – “Guards shall be securely in place while machinery is being operated, except when testing or making adjustments which cannot be performed without removal of the guard.”
Consistently, MSHA’s standards related to guarding moving machine parts top the list of most-cited standards. Whatever the reason, guarding citations have been, and will continue to be, a favorite of MSHA inspectors. Many times, depending on the nature of the moving part and how close it is to work area, these citations are issued as Significant & Substantial (“S&S”).
Operators should consider bringing in a fresh pair of eyes to look over an operation’s guards to begin the season, while ensuring those in place are well-secured and free of other defects before MSHA spots them first.
Inspection expectations
Whatever the cause, when material accumulates and potentially blocks access to a ladder, stairway, or entrance/exit, it is not uncommon to receive citations for one or both of these standards.
Like guarding, material spillage or other housekeeping issues should be caught by daily workplace examinations and dealt with promptly. In the event of repeated accumulation in the same area, operators should look beyond simply cleaning it up until the next pile forms and take a preventive approach to stop the spill from occurring.
While it’s hard to avoid piles of sand and crushed material around a mine or portable crushing plant, be vigilant to prevent and correct these accumulations on catwalks or paved/concrete surfaces, as these are typically more scrutinized by inspectors than others.
Lastly, be sure to consider why (or why not) each citation issued is valid, whether being issued at all or whether or not designations such as S&S are accurate. If there is any doubt as to the validity, strongly consider contesting. There are several options for operators and independent contractors to contest, whether after the penalty assessment is received from MSHA or within 10 days of issuance at a pre-assessment (informal) conference.
While avoiding citations is every operator’s goal, I encourage you not to accept the adage that “MSHA has to issue something.” Some citations are valid, but that doesn’t mean all of them are. Bad paper should not be accepted, or else the interpretation may become widespread among inspectors
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.