Regular Mine Safety & Health Administration (MSHA) inspections are a fact of life for mine operators.
While other employers may enjoy a relatively free hand – and have little day-to-day governmental oversight – those of us serving entities subject to regulation under the Mine Act know that an MSHA inspector can appear at almost any time.
Inspections often seem to occur at inopportune times when health and safety professionals are faced with other pressing matters. Given that reality, I thought it would be helpful to provide a few tips to help you navigate MSHA inspections.
10 tips to keep in mind
1. Have your documents organized and readily available in advance. There are certain document categories that are likely to be requested during an inspection – including training documents, workplace examinations and pre-op checks on mobile equipment.
If you do not have a process in place, act now to develop a recordkeeping system so documents are up to date and easily located.
2. Ensure a management representative accompanies each inspector. This typically isn’t an issue when there is one inspector on the premises, but it can be a problem if multiple inspectors appear.
Be sure to have a roster of available and knowledgeable management representatives who understand the company’s rights and responsibilities, as well as the scope and limits of MSHA’s authority during inspections.
3. Take photographs or video during inspections. Try to replicate in your own photos and videos what the inspector has likewise recorded – and catalog these afterward for later use.
Consider the perspective of the videos and photographs taken. The inspector may select a view that supports his interpretation, but there might be a broader view that suggests the purported hazard is relatively minor or not a violation at all.
4. Take notes. The inspector takes notes. The company representative should, too.
Document what you see, especially those facts that could support the company’s position in contesting a citation. Remember, though: Notes will have to be produced in any contest proceedings. So be mindful what you write and how it looks to someone reading it later.
5. Fix what you can – and quickly. If the inspector alleges violations, take action as soon as possible to abate the conditions so citations can be timely terminated by the inspector. This is necessary even for citations that the company will contest.
A timely abatement will show the inspector that the company is committed to reasonable cooperation and will avoid issuance of failure to abate Section 104(b) orders.
6. Do not make excuses. Saying “we meant to fix that” could be taken as an admission of management knowledge that the violation existed.
A similar issue arises when inspectors ask the company representative whether he “agrees” with the inspector’s findings. Such admissions tend to figure prominently in the inspector’s notes. It’s best to stay focused on the present circumstances, and not to comment on the inspector’s assessment of a citation.
7. Point out mitigating factors. While admissions should be avoided, company representatives should be advocates with the inspector.
If you see a mitigating factor, like a violation occurring close in time to the inspection – or protective or preventive efforts the company made to address it – be sure to point that out and ask for consideration. Speaking up at the appropriate time, in a respectful manner, may lead to positive results.
8. Permit miners to speak with inspectors. Hourly miners have the right under the Mine Act to speak with MSHA outside the presence of management if they so choose. The hourly miner also has the right to decide whether he would like a representative present – including a member of management. Additionally, the miner has the right to decline to interact with the inspector.
The bottom line is management must be careful not to interfere with these rights during an inspection or at any other time.
9. Ask questions during the closing conference. The closeout conference is often when the inspector will issue citations, but it is also an opportunity to ask questions of the inspector as to why he wrote what he wrote.
This can include questions about the gravity and negligence on a citation. While the questions may not change the inspector’s mind, they will serve as a useful fact-gathering exercise for the company if it decides to pursue contest proceedings.
10. Expect the unexpected. Perhaps the inspector will return later in the day for the night shift? Perhaps he will ask to review your surface mobile equipment plan? Be prepared in advance for anything.
Philip K. Kontul is with the national labor, employment and safety law firm Ogletree Deakins. He can be reached at philip.kontul@ogletree.com.
