How to prepare for the blitz of impact inspections

As everyone in the mining industry is aware, the first quarter of 2023 has seen a fatal accident spike that exceeded the same period in 2022.

The Mine Safety & Health Administration (MSHA) and industry safety personnel have pored over the accident data to identify a pattern in these events. Of these 16 fatalities, 11 are classified as involving machinery, powered haulage or electrical.

In public statements, MSHA officials have suggested that a significant percentage of these events could have been avoided with more effective training and workplace examinations. None of the final investigation reports were posted as of press time, so there is no way to evaluate that conclusion.

Nonetheless, while these investigations continue, MSHA has ratcheted up its enforcement profile to the industry. Of note is the agency’s recent decision to resume publicizing the results of its nationwide impact inspection efforts.

Related: MSHA chief reflects on 2023 mining fatalities

The latest MSHA activity

MSHA issued a press release in late March that set out the results of its January and February 2023 impact inspections.

The press release indicated that 25 impact inspections were conducted throughout the U.S. – seven at metal/nonmetal operations and 18 at coal operations. According to the agency, the impact inspections identified 374 violations, of which 113 were alleged to be significant and substantial (S&S) and 13 alleged to be unwarrantable failure.

MSHA also identified two of the operators caught up in this process – one metal/nonmetal and one coal – detailing the enforcement findings at their operations. The press release makes the point that MSHA considers the impact inspection to be a key weapon in its enforcement arsenal, and that operators should not be surprised when one happens to them.

That is helpful information, because a significant portion of the industry has been under the mistaken impression that impact inspections had stopped in December 2020 when the agency stopped reporting results on its website. In fact, impact inspections continued in the interim. MSHA called them “targeted” inspections, but otherwise they were the same.

Essentially, if three or four inspectors show up at your operation – sometimes with a field office supervisor in tow – you are probably experiencing an impact inspection. As can be expected, these inspections tend to produce a significantly higher percentage of S&S violations.

With that said, a review of the January and February impact inspection results does not indicate a dramatic uptick in heightened gravity citations and orders. The 13 unwarrantable failure citations identified in the press release were issued to only four of the 25 operators MSHA targeted.

MSHA considers a number of criteria in determining whether to initiate an impact inspection. The criteria are violation history, operator tactics, hazard complaints, plan compliance issues, inadequate exams, accident/injury rates, fatal accidents, adverse conditions, respirable dust issues and operational changes.

Violation history is the chief criteria, though. Of the 25 operations caught up in the January and February impact inspections, 19 had violation history checked as a factor. While MSHA can initiate an impact inspection if just one of the criteria is met, the vast majority of the operators (19) were identified as having two or more of the above criteria.

The message for operators in all of this is you need to drill down into your violation history and compliance experience to evaluate your susceptibility to being singled out for an impact inspection.

The combination of a heightened violation-per inspection-day average, several workplace examination citations, and one or two hazard complaints could put you front and center on the agency’s target list.

If that possibility is recognized, mine operators must prepare for the anticipated enforcement blitz. It goes without saying that compliance deficiencies should be identified and corrected.

Operators should also designate the personnel who will accompany the multiple inspectors that will head out in different directions. Given the likelihood of increased gravity findings during these types of inspections, these personnel should be trained to observe and identify any mitigating factors that may need to be highlighted in future informal conferences or contest efforts.

While it may not be possible for operators to avoid an impact inspection in the future, careful preparation can certainly help you weather the storm.

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

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