Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/452309
41 AGGREGATES MANAGER February 2015 ROCKLAW the operator had returned to tell the inspector that he could begin his inspection unaccompanied when the inspector decided to issue the citation. Further, it was important to the ALJ that the inspector never told the operator that he had a right to inspect without delay, nor did he attempt to start his inspection and be prohibited from doing so. According to MSHA's Program Policy Manual, indirect de- nials are those in which an operator or his agent does not directly refuse right of entry but rather, take a roundabout action to prevent inspection of the mine by interference, delays, or harassment. There must be a clear indication of intent and proof of indirectly denying entry. Here, the ALJ found that the record did not show a clear indication of intent and proof of indirectly denying entry. Because there had been a history at this mine of prior inspectors waiting up to 30 minutes to obtain an escort before beginning an inspection, the operator's behavior was consistent with past practice, and therefore, it was not believable that they were attempting to thwart the inspection. The court also analyzed the Secre- tary's alternative theory that safety corrections could have been made while the inspector was waiting for an escort, and therefore, a violation of the advance notice prohibition occurred. Here, the agents of the operator were contacted about the inspector's presence so that the op- erator could exercise its walk-around rights. The court found that this situation was distinguishable from actual advance notice cases wherein operators warned miners that MSHA inspectors were entering certain ar- eas in an attempt to alert the miners to the MSHA inspector's presence. Here, it was clear that the operator had merely informed others of the in- spector's presence in order to obtain an escort, which was a valid exercise of the operator's walk-around rights. As a result, the court found that the Secretary did not meet his burden of proof that the operator took corrective actions while the inspector was wait- ing for an escort. Importantly, the court found that, under the particular circumstances of this case, the 30-minute delay was not unreasonable given the unfamiliarity of those at the mine with how to deal with a mine inspection and the lack of precision on the inspector's part in communicating the im- mediacy associated with his right to inspect. Under a differ- ent set of facts, intentionally or unreasonably delaying an MSHA inspector for 30 minutes (or possibly a delay of less time) could be interpreted as interference. For mine operators, this decision illustrates the impor- tance of communication between the inspector and the operator while an operator is attempting to obtain an escort. Both parties should be clear in their intentions in order to avoid litigation over whether an inspection was impeded. Further, the advance notice provision is not violated by an operator attempting to exercise its walk-around rights. AM AT HOME ON ANY RANGE Wherever the job takes you, our variety of surface crawlers will fit right in. 800-732-6762 www.atlascopco.us