When MSHA ignores its statutory obligation to allow  representatives of mine operators to walk with agency  inspectors during their visits, it can jeopardize  enforcement actions taken while government agents are  unaccompanied.

That risk was realized in February 2012 when an inspection  party showed up at Martin County Coal Corporation’s  (MCC) Voyager No. 7 Mine in Kentucky in response to an  anonymous ventilation complaint.  Before the group  entered the mine, they prevented the operator from  arranging for any company representative to accompany  them.  The ventilation complaint subsequently was found  to lack merit.  

Three members of the seven-person inspection party,  however, set off on a regular inspection.  They found  alleged cracks in the walls (ribs) near three conveyor belts,  two loose rib bolts and an entry wider than allowed.  Fallen  material at an intersection indicated to inspectors that a  crack had allowed the material to break free from the rib.

Inspectors issued a citation and two orders for alleged  ground control violations.  A third order was issued for  failure to conduct adequate on-shift examinations because  inspectors believed the alleged hazardous conditions were  obvious and had existed for over a month.  In all, MSHA  proposed $50,024 in penalties.  

However, the observations on which the violations were  based conflicted with those of another inspector who  testified he had not observed the cited conditions in visits  during the prior two-week period. Company  representatives corroborated his testimony.

Administrative Law Judge Jerold Feldman deferred to the  “broad discretion” of the inspectors who had noted the  conditions.  He also supported their designation of the  alleged hazards as likely to lead to reasonably serious  injuries.  However, he did not sustain their characterization  of unwarrantable failure, i.e., that the operator’s alleged  failure to address the hazards demonstrated aggravated  conduct beyond ordinary negligence.

Feldman also said another reason for rejecting the  unwarrantable failure designations was inspectors’ failure  to recognize the operator’s walk-around right under  section 103(f) of the Mine Act.  A Federal Mine Safety and  Health Review Commission decision recognized the  operator’s 103(f) right and stated evidence in a legal  proceeding may be excluded when that right is violated if  the operator can show prejudice.

“The prejudice to MCC in this case is self-evident” because  it prevented the operator from resolving factual disputes  that could have been settled on-site, Feldman wrote.  The  judge did not say if violation of the operator’s walk-around  right alone would have led him to dismiss the elevated  negligence classification.

He deleted the unwarrantable failure designations and cut  the fine for the three hazardous conditions infractions to  $4,000 each.  He also vacated the on-shift examination  order.  Since his decision was based in part on the  dissenting testimony of the MSHA inspector, Feldman also  called on the agency to assure no reprisals would be taken  against him.