Aggregates Manager

September 2014

Aggregates Manager Digital Magazine

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ROCKLAW AGGREGATES MANAGER September 2014 33 FMSHRC 728, 733 (ALJ Paez June 2010); see also Consol- idation Coal Co., 3 FMSHRC 617, 618 (Rev. Comm. March 1981); Consolidation Coal Co., 16 FMSHRC 713, 719 (Rev. Comm. Apr. 1994). In Big Ridge Inc., 2014 WL 2920572, Docket No. LAKE 2012-174 et al., (ALJ McCarthy June 19, 2014), the ALJ found that the operator's walkaround rights were violated during an impact inspection and, applying an exclusionary rule of evidence, the ALJ vacated two citations issued by an unaccompanied inspector. In that case, fi ve MSHA inspectors arrived at the mine to perform an impact inspection during the middle of the a ernoon shi . An MSHA fi eld offi ce supervisor told the foreman that MSHA was conducting an impact inspection and instructed him not to contact anyone or make any phone calls. He was therea er instructed to transport three inspectors underground to diff erent locations, and while ordinarily the foreman would have obtained com- pany escorts for each inspector, here he did not because of the directive prohibiting any phone calls. e foreman traveled with the three inspectors underground and was instructed to drop two of the inspectors off at diff erent locations. During the course of the inspection, one of the unaccompanied inspectors acquired an escort, but the other did not. Although the ALJ rejected the operator's argument that the denial of § 103(f ) walkaround rights was a violation of the Fourth and Fi h Amendments of the U.S. Constitution, he nonetheless concluded that MSHA failed to give the op- erator an opportunity to exercise its full § 103(f ) walkaround rights and that the fi eld offi ce supervisor's directive to transport three inspectors underground without contacting anyone violated "… MSHA's statutory obligation to aff ord an operator representative an opportunity to accompany each authorized representative of the Secretary during the physical inspection of the mine." Big Ridge Inc., 2014 WL 2920572, at *52. Finding that the directives from MSHA showed li le interest in aff ording the operator its statutory right under § 103(f ), the ALJ applied an exclusionary rule of evidence set forth by the Federal Mine Safety and Health Review Com- mission (FMSHRC) in SCP Investments, LLC, 31 FMSHRC 821 (Rev. Comm. August 2009). Under this approach, the ALJ determined what prejudice resulted from the violation and what, if any, evidence proposed for admission by the Secretary should be excluded because of the prejudice. In so doing, the ALJ found that the operator was prejudiced in two of three citations issued by the unaccompanied inspector and excluded all of the evidence for two of the citations, includ- ing, but not limited to, photographs and inspector testimony. Such exclusion ultimately proved fatal to the Secretary's case, and the citations were vacated. Although a denial of walkaround rights applies to situations beyond impact inspections, if operators are faced with an impact inspection, it is important for mine personnel to know and assert their walkaround rights. At the very least, impact inspections appear to be designed to inhibit such rights, and operators should make every eff ort to secure an escort for each inspector conducting an inspection of the mine or facility. If persons are denied an opportunity to accompany inspectors, it is important for operators to document precisely what occurred when inspectors arrived at the mine by detail- ing conversations with MSHA and mine personnel. Equally as important, operators should document in detail what occurs during and a er the inspection, specifi cally iden- tifying the citations issued by any unaccompanied inspec- tor(s). Finally, a denial of walkaround rights alone may be insuffi cient to have evidence excluded and citations vacated. Operators should a empt to demonstrate actual prejudice by showing that its ability to defend itself was adversely aff ected by the absence of an opportunity to provide contemporane- ous information at the time of the inspection. AM Warrantless inspections of a heavily regu- lated industry are deemed reasonable only if three criteria are met: 1) ere must be a substantial government interest that informs the regulatory scheme to which the inspection is made; 2) e warrantless inspection must be nec- essary to further the regulatory scheme; and 3) e statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitu- tional substitute for a warrant. Donovan v. Dewey, 452 U.S. 594 (1981); New York v. Burger, 482 U.S. 691, 702 (1987).

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