Mine Safety & Health Administration (MSHA) inspections occur every day at hundreds of mines around the U.S., and most begin and end without much excitement.
Yes, citations may be issued, and those may need to be contested. But many inspections can be described as uneventful.
MSHA inspections are normal and expected for mine operators who know the agency will be on-site for its minimum of two surface mine inspections per year and the minimum of four annually at underground mines. But what happens when inspections are not uneventful? Is your company prepared to react to inspections gone awry?
Many times, problematic inspections can be avoided – or their impact can at least be lessened if operations take proactive steps to plan and establish defenses.
The field office supervisor
When issues arise during inspections, the easiest way to put out “fires” is by having MSHA extinguish them for you.
All mine operations are assigned a specific MSHA field office. And while the inspectors on-site will change, field office supervisors typically remain the same.
Operators should use this continuity to their advantage and establish a relationship with their designated supervisor. If an issue occurs during an inspection, supervisors retain the ultimate control. This is true if inspectors are from that office or brought in from elsewhere.
If operators call with a concern or argument and there is no prior relationship, supervisors are more likely to side with inspectors. But if operators know their supervisor – and the supervisor knows the company to be a good operator who complies and works cooperatively with MSHA – then it is much more likely operators will be heard.
This isn’t a foolproof plan, but it is certainly beneficial to know your supervisor before you need something from them. Whether sitting down and talking at a local mine safety conference, visiting the field office or making a phone call to introduce yourself and your operation, operators should consider getting to know their regulators.
Know MSHA’s authority
Inspectors overstep at times. This is not to say all the time or during every inspection. But when I hear from a client during a difficult inspection, the most common denominator is an inspector asserting or attempting to assert power where they do not have it.
To combat this, operators, contractors and their representatives must understand the boundaries of MSHA’s authority to hold inspectors accountable.
Most commonly, issues arise with the withdrawal of miners due to alleged lack of training, or withdrawal of an area and/or equipment. This makes it imperative to understand when MSHA can and cannot shut down operations.
MSHA’s shutdown authority is limited. To authorize a shutdown of equipment, miners or entire sections of a mine, inspectors must establish the presence of untrained miners, multiple unwarrantable failures (104(d) citations/orders), imminent dangers (107(a) orders) or unabated conditions (104(b) order). Each of these requires the presence of significant hazards to the safety and health of miners.
If MSHA cannot establish that with certainty, citations and orders should not be issued. If there is sufficient basis for MSHA to issue any such orders, there is typically room to negotiate the scope of withdrawal.
Know your resources
Contractors and operators should also know when it is time to call in the cavalry.
No matter how good your relationship with MSHA is, there may come a time when a situation is not salvageable by normal avenues. If this arises, it is essential that personnel are aware of the resources available to them to assist.
Whether internal management and legal support or outside legal counsel, on-site managers should have the appropriate training and contact information available. In the event personnel need the information, they will have it readily available and get support for inspections gone awry.
Of all the possible reactions to difficult or disastrous MSHA inspections, inaction or “waiting to see how they turn out” are almost always the worst courses of action. Equipping personnel with resources to identify when support is needed – and making that support easily available – is the best way to mitigate the damage a rogue inspection can cause.
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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