December 2, 2011
Prohibition of ‘advance notice’ must be balanced with the operator’s right to accompany the inspector.
Mine Safety and Health Administration (MSHA) inspectors have been increasing emphasis on the prevention of ‘advance notice’ of their inspection activities since MSHA issued Program Information Bulletin No. P10-15 (PIB) last year. In this PIB, MSHA emphasizes that Section 103(a) of the Mine Act prohibits ‘any person’ from giving advance notice of inspections. The PIB also warns the mining community of the potential consequences for anyone who violates the advance notice prohibition, including civil and criminal actions, penalties, and sanctions against operators and individuals.
Since the PIB has been issued, more and more operators report occurrences where MSHA inspectors are arriving on site and telling security personnel not to announce their arrival to anyone on site. Some MSHA inspectors have ordered operator personnel to cease use of all phones for fear calls are being made to warn miners that MSHA inspectors are coming. Other operators have had MSHA inspectors go directly out to the active mining area without checking in at the main office or following the operation’s protocols for protections for visitors to a site where the conditions are dynamic and may change on short notice. This approach presents potential hazards to inspectors and miners.
While this aggressive approach may achieve MSHA’s goal of prohibiting ‘advance notice,’ it ignores the operator’s rights under the Mine Act to accompany the inspector during the inspection process. Some MSHA inspectors have been known to begin their inspection activity without any miner’s representative or operator’s representative, ignoring walk-around rights granted under Section 103(f) of the Mine Act. Section 103(f) provides that MSHA shall give an operator the opportunity to accompany an inspection “for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine.” 30 U.S.C. § 813(f).
So what is an operator to do? The best way to handle any MSHA inspection is to know your obligations and rights under the Mine Act. Section 103(a) grants the Secretary or her authorized representatives the ‘right of entry’ to conduct inspections authorized by the Act and prohibits giving advance notice of inspections for “determining whether an imminent danger exists and whether there is compliance with mandatory health or safety standards, or with any citation, order, or decision” issued pursuant to the Mine Act. 30 U.S.C. § 813(a). MSHA has taken the position that once it has commenced an inspection, this prohibited notice extends to all types of communication for all purposes — a question yet to be fully resolved given the myriad of circumstances that may be presented in any given inspection and balancing of rights that is required by the Mine Act.
MSHA’s PIB acknowledges that some advance notice of inspection activity is permitted in limited circumstances, and the PIB specifically identifies Section 103(g) hazard complaints alleging imminent dangers as one example. However, the issue of when advance notice of an inspector’s presence on mine property is permissible is not so simple. MSHA’s Program Policy Manual (the PPM) acknowledges that the Mine Act does not prohibit advance notice of investigative activities, but only permits such notice when needed and when approved by an inspector’s supervisor. For direct enforcement activities, MSHA acknowledges that it may be necessary to make preparations or arrangements with mine personnel, but that “any arrangements or notice relating to an enforcement activity that is not essential to carry out that activity is considered to be ‘advance notice’… ” PPM, Volume I, February 2003 (Release I-13). The PIB does not provide guidance on how MSHA intends to accommodate 103(f) rights, which provide operators’ and miners’ representatives the opportunity to accompany inspection parties.
Common sense would dictate that gathering an inspection party with representatives requires some form of notice to operator personnel, but whether MSHA or the courts would consider this as advance notice has never been directly resolved. Many of the judicial decisions interpreting Section 103(a) have involved situations where MSHA inspectors have directed mine operators not to call underground coal mines to announce their presence at the site. The facts of these cases vary, but all have found the operator to be ‘impeding an inspection’ under Section 103(a), because the operator disobeyed an inspector’s directive not to call. They have not directly addressed whether an operator may make some communications for purposes of exercising their Section 103(f) rights. In any event, there must be some middle ground for an MSHA inspector to proceed unannounced that does not involve ignoring the safety and security protocols at a mine or the rights of the mine operator.
Section 103(f) gives the operator an ‘opportunity to accompany’ an inspection and to attend pre- and post-inspection conferences, and MSHA should afford the operator that opportunity. It should be noted that MSHA has been given some latitude where it has denied the operator the right to accompany an inspector in light of the following language in Section 103(f): “[c]ompliance with this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act.” 30 U.S.C. § 813(f). This language has been found to be a caveat to the otherwise mandatory language that MSHA ‘shall’ afford the operator an opportunity to accompany the inspector.
In the SCP Investments, LLC cases, an inspector removed all miners, including the owner, from the site based on a withdrawal order issued pursuant to Section 104(g) and declined the owner’s request to accompany the inspector during the physical inspection. The Administrative Law Judge dismissed the case because the inspector violated the operator’s Section 103(f) rights. The Commission overturned the decision on appeal, reasoning that the jurisdictional language in Section 103(f) did not require the remedy of dismissal, but might prevent MSHA from presenting evidence obtained from the inspection at trial (also known as the exclusionary rule).
Despite the ‘shall’ language in Section 103(f), MSHA may nonetheless proceed with an inspection without affording the operator an opportunity to accompany the inspector. However, the inspector may only do so when there is a rational justification for doing so (or a recognized statutory exception), and then risks having the evidence from the inspection excluded at trial or having any enforcement actions issued, dismissed in their entirety. While the operator’s due process rights may not be absolute, they cannot be dismissed or ignored.
The interplay between Section 103(a) and Section 103(f) of the Mine Act is far from clear, but here are some thoughts to consider in balancing the prohibition of advance notice of inspection with your rights as an operator to accompany the inspector:
• Conversation with the inspectors upon their arrival at the site should be documented and demonstrate the intent to exercise legitimate Section 103(f) rights to accompany the inspection and not to provide advance notice.
• Ask to hold the pre-inspection conference to allow for gathering of appropriate operator and contract personnel, along with miner’s representatives. If there is resistance, cite the inspector to MSHA’s PPM regarding the ability to make ‘essential’ preparations.
• Calls should not be made to notify anyone of MSHA’s presence, but only to gather people to arrange the inspection representatives under Section 103(f). Calls should not be made for the purpose of notifying employees to cover up violations.
• Seizing cell phones should be questioned and objected to as an unreasonable search and seizure.
• If MSHA directs that no calls be made, that should be documented. If the MSHA inspectors go about the inspection and deny Section 103(f) rights, an operator may be able to effectively argue that the evidence gathered while operator representatives were excluded from the inspection should not be allowed admission in a subsequent challenge.
Dana M. Svendsen is an associate in Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0011 or firstname.lastname@example.org.