Aggregates Manager

February 2015

Aggregates Manager Digital Magazine

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AGGREGATES MANAGER February 2015 40 Rock Is it impeding an inspection, providing advance notice, or just exercising your walk-around rights? WALK-AROUNDS by Kristin R.B. White Kristin R.B. White is a member of Jackson Kelly, PLLC and manages the Denver practice. Her practice is focused on occupational safety and health and mine safety and health. She can be reached at 303-390-0006 or via email at kwhite@ jacksonkelly.com. ALJ Addresses R ecently, issues have arisen be- tween an operator's walk-around rights and the Mine Safety and Health Administration's (MSHA) right to conduct immediate inspections with- out impediments or advance notice. Section 103(a) of the Mine Act prohibits an operator from interfering with inspections, and that includes interference that is caused by unrea- sonable delay or where an operator's actions have the effect of frustrating the Secretary's legitimate objectives. Section 103(a) of the Mine Act also prohibits any person from giv- ing advance notice of inspections. In a recent case, Administrative Law Judge (ALJ) Moran found that neither provision of § 103(a) of the Mine Act was violated when the start of an inspection was delayed by approximately 30 minutes due to what was ultimately deter- mined to be miscommunication. See Portable Inc., Docket No. WEST 2013-526-M (ALJ Mo- ran Dec. 5, 2014). In Portable, the inspector arrived at the mine in order to conduct a regular inspection. He was asked to wait as it was company pol- icy to escort any visitor, including MSHA. The inspector was informed that the safety direc- tor was at the corporate office, but would be arriving at the mine. The operator did not provide the inspector with any estimate of how long it would take for the safety director to arrive at the mine. Additionally, the inspec- tor did not, at any time, tell the operator that he had the right to inspect the mine without an escort. According to the inspector, he in- formed the operator that the longer it took to obtain an escort, the more he was inclined to issue a citation for impeding the inspection. After approximately 30 minutes, the inspec- tor informed the operator that he had waited longer than necessary, and he was going to issue a citation for impeding his inspection. The Secretary argued that the operator was in violation of § 103 of the Mine Act because it refused to allow the inspector to inspect the mine by telling him that he needed an escort to enter the mine property and then failing to provide one for 30 minutes before subsequently allowing him to begin his in- spection without an escort. While both sides agreed that the inspector was entitled to inspect without delay, the court agreed with the operator that there was no direct or in- direct denial of entry. It was important to the ALJ that there was no evidence presented by either side that the inspector was told he was not permitted to inspect the mine at any point during the 30 minute waiting period, despite the description in the citation suggesting oth- erwise. On the contrary, the ALJ found that

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