Mine operators should consider implementing plans for managing MSHA inspections while avoiding being charged with impeding an inspection. The plan should help mine operators to exercise their right effectively under the Federal Mine Safety and Health Act (Sec. 103) to have their representative accompany a MSHA inspector, despite the fact the agency, with court approval, has become more aggressive in penalizing any perceived infraction. The statute accords the same right to miners’ representatives.
Most operators do not want an inspector touring a facility unaccompanied. However, inspectors often arrive at a mine unannounced. The operator then must locate its representatives quickly to avoid being cited for impeding an inspection by an inspector who believes he or she is being unnecessarily delayed.
In a recent article in Coal Age magazine, Jackson Lewis attorneys Mark Savit and Breyana Penn noted that courts are consistently demonstrating that fines will increase where operators’ representatives do not comply with MSHA regulations. In one case, a judge raised an MSHA-proposed $1,112-penalty to $25,000 as punishment for what the judge determined was aggressive behavior toward the inspector by the operator’s representative.
To avoid trouble, Savit and Penn recommended that an operator formulate a plan (well thought out and communicated throughout the mine) to deal with an inspector. The plan should be activated when an inspector appears. If the person the operator has designated as the first point-of-contact at the mine is not present, the plan should explain how the operator’s and miners’ representatives should be contacted. It also should include guidance on what to do if the inspector refuses to allow anyone to locate a representative before beginning the inspection.
Savit and Penn noted the contact person can indicate clearly to the inspector that the operator wishes to exercise its statutory right of accompaniment. Miners can be given information on how to exercise their right as well. The contact can ask the inspector how he or she wants the operator and the miners to exercise their rights. Should the inspector refuse to be accompanied, a challenge to the inspector’s conduct, supported by documentation of the incident, can be brought later.
The MSHA’s recently released Online Guide to Miners’ Representatives states that on the day an inspection begins, the inspector will notify the operator’s two representatives of the type of inspection planned and schedule a pre- inspection conference. The Guide should be on hand to show the inspector and to reinforce to the inspector that your rights must be respected.