MSHA violated an Illinois underground coal operator’s  constitutional guarantee of due process and a statutory  right under the Mine Act by prohibiting the operator  from providing personnel to accompany inspectors  during an impact inspection.

The case arose after an inspection team arrived at Big  Ridge, Inc.’s Willow Lake Portal in September 2011 to  conduct an impact inspection. Such inspections have  been conducted since April 2010 at mines MSHA believes  deserve special attention due to compliance or safety  problems. Upon arrival, the MSHA team secured the  phones. A supervisory MSHA official then directed a mine official not to alert anyone underground to the  inspectors’ presence, fearing doing so would provide  advance notice and the opportunity to correct violations  before the inspection team could discover them. The team then went into the mine and split up to begin their  inspection without escorts provided by the operator, and  one of the inspectors wrote three citations.

Section 103(f) of the Mine Act specifically requires MSHA to afford operators an opportunity to accompany  inspectors, a mandate commonly referred to as the walkaround right. In a decision released June 19,  Administration Law Judge McCarthy determined the  statutory provision had been violated. McCarthy held that the operator had also been deprived  of property without due process under the Fifth  Amendment. He said this occurred because the operator  had a “legitimate claim of entitlement” to accompany the  inspector, the company was denied the opportunity to  develop information in its favor, and the resulting fines were a “tangible property interest” because they  compelled the operator to relinquish money.  An injury to  a property interest does not represent a deprivation if it  was due to negligence, but in this case MSHA’s action  was deliberate, McCarthy said.

The judge noted that the inspectors had deviated from  their usual practice of requesting escorts without telling  anyone at the mine of their intentions until they instructed  their escorts where in the mine they wanted to go.

McCarthy determined that applying an exclusionary rule  to the evidence supporting the citations would provide  an appropriate remedy. As a result, he excluded key evidence supporting two citations because he said in  effect that the absence of an escort prevented the  operator from properly defending itself.  With insufficient  proof left to support the alleged infractions, McCarthy  vacated the citations and the associated $14,141 in fines.   However, he upheld the third citation and $1,203 fine  because he said the alleged violation was such that the  operator could have developed information later in an  effort to mitigate the enforcement action.