Coming to grips with MSHA’s enforcement of structural integrity

Once upon a time, a lawyer who shall not be named was engaged in an intense enforcement discussion with Mine Safety & Health Administration (MSHA) investigators and technical support engineers about a structural issue related to a conveyor system in the plant.

In the midst of an impassioned oration on the attention and resources that the mine operator devotes to regularly inspecting all structures at the facility, the lawyer was interrupted by a local building inspector who entered the conference room unannounced and declared everyone had to evacuate the building because it had just been officially condemned. The words of the laughing MSHA inspector across the table at that moment had never been truer: “Timing is everything.”

Luckily for that lawyer, the situation improved dramatically when the meeting was resumed in the parking lot and the paperwork error that produced the condemnation was resolved. There was also a happy ending to the particular conveyor structure issue identified by MSHA, as the mine operator’s longstanding and comprehensive structural inspection program ultimately saved the day.

Enforcement expectations

These types of enforcement situations are not always so easily resolved.

These circumstances tend to begin with an inspector’s general observation that a condition seems potentially hazardous. The inspector’s initial impulse is to ask company personnel what they think about the condition or whether the condition has been evaluated by an engineer.

Many of the possible answers to those questions can complicate the situation, especially if someone has looked at it in the past and recommended repairs. Things can become even more problematic if those recommendations are contained in a written structural study and the inspector asks for a copy.

In the absence of such facts, however, inspectors sometimes suggest the company bring in a third-party structural engineer to certify that the structure is sound and does not present a hazard. In many cases, this suggestion is offered as an alternative to either a citation with a quick abatement deadline or a lengthy visit by an engineer from MSHA technical support.

Of course, if the inspector believes the condition is really serious, an imminent danger order and withdrawal of personnel can follow. In any event, the common denominator is the need for quick action and decision-making by the mine operator.

Proactive solutions

There has been an uptick in enforcement efforts related to structural integrity over the past six to seven years, due in large part to some high-profile structural failures at mines around the country.

Inspectors’ focus has been on rusted joints and supports, abraded connecting bolts, worn decking, cracking and spalling on walls, and evidence of overloading on silo roofs. As most inspectors are not structural experts, there can be a great deal of gray area in their evaluations. Operators are often torn between wanting to challenge these evaluations and avoiding a prolonged legal battle that could take the cited structure out of service.

To avoid the potential for this type of confrontation, many companies have instituted a best practice program of regularly scheduled structural examinations at their mining operations to enable the identification of structural changes and deterioration. This process also permits the operator to plan and manage the repair effort in a more efficient manner than is possible after a citation or order has been issued.

With that said, this approach is not without some peril. This type of evaluation usually produces a written report with suggested repair parameters and deadlines.

When MSHA inspectors get their hands on this type of document – and they usually do – there are always problems when the recommendations in the report do not match the responsive actions taken by the company. Consequently, it is crucial that when operators make the exemplary commitment to monitor and manage their structures, they also commit to promptly responding to the conditions identified in that process.

After all, timing is everything.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com