April 1, 2009
Lay-offs and reduced work schedules tend to spawn hazard complaints. Know how to the complaint and investigation.
by John Austin and Brian Hendrix
The Mine Safety and Health Administration (MSHA) is likely to receive and investigate more hazard complaints this year than in the recent past. Times are tough. Lay-offs and reduced work schedules tend to spawn hazard complaints, meaning mine operators should be prepared to deal with complaints and complaint investigations. The first steps are to understand a mine operator’s rights during a complaint investigation and to understand MSHA’s hazard complaint investigation policy and procedures.
Section 103(g) of the Federal Mine Safety and Health Act of 1977 (Mine Act) defines a hazard complaint as a complaint to MSHA by a miner or a miner’s representative regarding hazardous conditions or practices, including imminent dangers. MSHA’s Hazard Complaint Procedures Handbook lists two types of complaints: a Section 103(g) Complaint and All Other Complaints.
A section 103(g) complaint is one made solely by a miner or a representative of a miner that is:
Complaints that do not meet these specific requirements are considered other complaints and are described as:
MSHA is required by law to protect the identity of complainants. Therefore, before disclosing or providing copies of the complaint, MSHA removes information that would identify the complainant, such as name, address, mine location, equipment used, work area, or any other specific references that may reveal the complainant’s identity. MSHA may rewrite the entire complaint in order to maintain confidentiality.
Once MSHA receives a hazard complaint, it must determine whether the complaint alleges a hazardous condition, an imminent danger, or a violation of a standard or the Mine Act. If MSHA believes that a complaint alleges facts that could constitute an imminent danger, MSHA should immediately investigate. If MSHA is unable to make an immediate, unannounced inspection, it will send a notice to the mine operator directing the operator to investigate the allegation.
When a complaint is deemed to be a serious hazard, MSHA’s policy is to conduct an inspection as soon as it is able, without notifying the mine operator. A complaint found to allege non-serious violations that do not affect the health or safety of mine workers, such as incident reporting or record requirements, will be categorized as not serious and will be investigated during the next site inspection, if at all.
Complaints that do not allege imminent danger or hazardous health and safety conditions may not warrant an investigation, although any decision to not investigate a complaint must be initially approved by the district manager and will be reviewed in Arlington.
Mine operators should always request a copy of the complaint when the inspector arrives. A mine operator is entitled to a copy of a 103(g) complaint and to know the purpose of the inspector’s visit. Keep in mind that an inspector may conduct a hazard complaint investigation under the guise of a different type of inspection to protect the identity of the complainant.
Mine operators should do nothing to attempt to identify the complainant and should not take any action against the complainant if the complainant’s identity becomes known. Refrain from approaching the complainant, discussing the complaint with him or her, or taking any action whatsoever against the complainant. Miners have the right under the Mine Act to complain to MSHA and that right is, and legally should be, vigorously protected by MSHA.
How do you deal with a miner who makes false complaints to MSHA or has complained solely to retaliate against other miners or management? That’s a question that deserves its own article. Here, we can tell you that it can and, under certain circumstances, should be addressed. There is a right way to address it, and we strongly recommend that legal counsel be involved early in the process. A lie is a lie. If a miner makes a false statement – submits a knowingly false hazard complaint to MSHA – the miner is probably committing a felony.
Once MSHA completes its investigation, the inspector is required to notify the mine operator and any miner’s representative of any violations and, in the case of a 103(g) complaint, to notify the complainant of the results and any action taken. The inspector is also required to contact the complainant after the inspection to discuss the results of a 103(g) complaint, but is not required to do so for other complaints. If no violations are found, the inspector must notify both the mine operator and miner representative in writing of the result. Violations observed by the inspector, but unrelated to the complaint, may trigger a separate inspection, although inspectors will typically cite any violations during the same visit.
Mine operators should ask for a copy of the inspector’s findings. If, as is often the case, the inspector concludes that the complaint lacked merit, the mine operator is entitled to a written confirmation of that fact. A “negative finding” – a finding that the complaint didn’t lead to a citation or some other action – is common, and mine operators should keep and post a copy of all complaints and all negative findings. If the inspector believes the complaint has merit, the inspector will likely issue a citation or citations. The Mine Act requires operators to post all citations, so any citation issued in connection with a complaint should also be posted.
All this boils down to a few basic guidelines that, if followed, will allow you to better manage a complaint investigation:
1. Request a copy of the complaint when the inspection begins;
2. Do nothing to ascertain the identity of the complainant and take no action against any miner for complaining to MSHA;
3. Accompany the inspector during his investigation and collect the same information that the inspector collects;
4. Make sure you receive a copy of the inspector’s findings.
Of course, if you disagree with the results of any complaint investigation, you have the right to contest any citation(s) issued by MSHA.
John Austin, Jr. is a partner and Brian Hendrix is an associate with Patton Boggs Law firm. Austin can be reached via phone at 202-457-6167 or via e-mail at firstname.lastname@example.org. Hendrix may be reached via phone at 202-457-6543 or via e-mail at email@example.com.
A mine operator is entitled to a copy of a 103(g) complaint and to know the purpose of the inspector’s visit.