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 dmsvendsen@jacksonkelly.com.