Pit & Quarry, October 2018

MSHA THE LAW BY BILL DORAN AND MARGO LOPEZ INSPECTOR SIGN IN STANDARDS O perators often have very specific rules regarding visitor access to mine property Signage at the entrance of the mine directs people to immediately check in at the mine office This serves two purposes First it enables the mine operator to determine the level of training of the visitors and to provide site specific hazard training if necessary Second it gives the operator important information about who is on mine property and what hazards may be created by their presence Given these important objectives it can be immensely frustrating to operators when in the course of their daily operations they come across a Mine Safety Health Administration MSHA inspector who has entered the property and begun an inspection without alerting the operator In raising this issue it should be pointed out that in our experience this type of scenario is the exception to the rule MSHAs General Inspection Procedures Handbook specifically instructs inspectors to notify the mine operator of their intent to conduct an inspection That said it certainly is not a rare exception When challenged about whether they have signed in at the office the response from inspectors is invariably this Im with MSHA I do not have to sign in There is an element of accuracy in this comment but it clearly does not provide the complete picture There are rules applicable to this situation that provide clarification RULES CLARITY Section 103 a of the Mine Act affords an MSHA inspector an absolute right of entry to mine property This right of entry does not require permission by the mine operator Furthermore unlike at Occupational Safety Health Administration regulated facilities no court ordered subpoena is necessary to gain access It is this authority that is usually cited by MSHA inspectors and field office supervisors as the basis for their refusal to comply with operator sign in procedures Notwithstanding this statutory right of entry mine operators and miners have important participatory rights related to inspections Specifically mine operators have the right to have a representative Once inspectors provide notice it is at their discretion when to move the inspection forward accompany the inspector during the inspection and two or more miners can designate a miners representative to accompany the inspector as well These walk around rights are set out at Section 103 f of the Mine Act and establish an important qualification to an inspectors unfettered inspection access This qualification is that while an operator cannot deny access to a duly authorized inspector that inspector should notify the operator that he or she is on the property Specifically as directed in MSHAs Program Policy Manual every reasonable effort is to be made to provide operators and miners with an opportunity to participate in the physical inspection of the mine and in all pre inspection and post inspection conferences A failure of the inspector to provide notice of his or her arrival on mine property certainly does not meet this every reasonable effort standard It should be noted though that MSHA has historically not allowed the unavailability of a representative to delay the start of an inspection The program policy manual states that to carry out an orderly and thorough inspection the inspector should not allow unusual conditions such as unavailability of a miners representative or a representative of an operator to delay the start of an inspection While inspectors are required to work in good faith to alert the operator and provide a walkaround opportunity they are not required to wait indefinitely Once inspectors provide notice it is essentially at their discretion as to when to move the inspection forward Situations involving unaccompanied inspectors often arise during off shift inspections MSHA directs inspectors to spread their inspection hours across different shifts in order to obtain an accurate picture of conditions and work practices Although it depends on the type of operation off shifts often have fewer management personnel which can create the unaccompanied scenario Anticipating this circumstance mine operators often designate an oncall supervisor to respond as quickly as possible after the inspector arrives P Q Bill Doran and Margo Lopez are with the national labor employment and safety law firm Ogletree Deakins They can be reached at william doran@ ogletree com and margaret lopez@ ogletree com 46 PIT QUARRY October 2018 pitandquarry com