Aggregates Manager

September 2014

Aggregates Manager Digital Magazine

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32 AGGREGATES MANAGER September 2014 Denial of walkaround rights during impact inspection may lead to vacated citations. by Patrick Wayne Dennison Patrick Wayne Dennison is an attorney practicing in the Occupational Safety and Health Practice of Jackson Kelly PLLC's Pittsburgh office. He can be reached at 412-434-8815 or via email at REQUIRED Escort S ince April 2010, the Mine Safety and Health Administration (MSHA) has conducted special inspections known as impact inspections that target mines MSHA has purportedly identifi ed as requiring in- creased a ention and enforcement. Known prior to 2010 as blitz inspections, impact inspections have become increasingly more common and are designed to catch operators by surprise. ese raid-like inspections utilize multiple inspectors and are conducted at times (weekends, nights, etc.) when traditional management personnel may not be present and mine personnel, in general, are lacking in numbers. Because of this timing, operators are regularly met with inadequate numbers of inspector es- corts, i.e., walkarounds, to accompany inspectors during these inspections. Moreover, once on site, inspectors instruct mine personnel not to contact anyone or to make any phone calls even off site regarding MSHA's presence. ese directives pre- vent mine personnel from contacting others at the mine or off site, leaving operators no opportunity to obtain additional escorts, even if they exist. e very nature of impact inspections seems to be designed to limit an operator's rights under §103(f ) of the Mine Act, which provides the stat- utory basis for mine operators to escort inspec- tors. In a recent decision, at least one Adminis- trative Law Judge (ALJ) has found that a denial of the fundamental right of a mine operator's opportunity to be present and accompany an in- spector during an impact inspection may result in invalidating evidence gathered during inspections and may ultimately provide a basis for vacating citations issued during the inspection. Section 103(f ) of the Mine Act evokes the rea- sonableness requirement mandated for MSHA's warrantless inspection power. Section 103(f ) states, in pertinent part, that "...a representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any coal or other mine…for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine…" 30 U.S.C. § 813(f ). e right of a mine operator to be present and accompany an inspector is a fundamental right that applies to all inspections. MSHA must make every reasonable eff ort to give a mine operator an opportunity to exercise its walkaround rights and must permit representatives of miners and operators the right to accompany inspectors. An arbitrary refusal of an operator's right to accom- pany an inspector is a statutory violation and may provide a basis for vacating the resulting citations. SCP Investments, 32 FMSHRC 119, 121 (ALJ Feldman January 2010); DJB Welding Corp., 32

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