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For the second time, now on remand, Administrative Law Judge Feldman has ruled that a violations of the mine operator's walk-around rights during a Mine Safety and Health Administration mandatory inspection warranted vacating the citations from that inspection.

In Secretary of Labor v. SCP Investments LLC, the ALJ originally came to the same conclusion, but MSHA appealed the finding to the Federal Mine Safety & Health Review Commission. Two commissioners suggested that Feldman conduct an exclusionary hearing to determine what prejudice, if any, resulted from the denial of walk-around rights. One commissioner suggested that the judge simply exercise his discretion in setting an appropriate civil penalty, given that the mine operator lacked an opportunity to present probative evidence during the inspection. The final commissioner held the refusal of walk-around rights had no effect on the case. One seat on the commission remains open. However, the four commissioners unanimously held there was still MSHA jurisdiction to inspect, and a majority found that the mine owner's statutory rights were violated. Consequently, citations and one order were reinstated, and the case was referred back to the judge.

In 2005, the owner of SCP Investments, Pat Stone, had not registered his operation with MSHA, so no legal identification was on file. He also did not have documented Part 46 training for himself at the time of the mine's first MSHA inspection. The MSHA representative did not allow Stone to accompany him during the inspection, claiming that the lack of Part 46 training permitted the inspector to evict the owner from the mine site. He did so, over Stone's protests, and proceeded to inspect the mine and to issue 11 citations and one order (for the lack of Stone's training).

In his challenge, Stone claimed that his statutory rights were violated and that he was prejudiced in his ability to defend himself since he never observed the conditions cited and was denied the ability to present any mitigating or exculpatory information during the inspection.

There were two provisions at issue in this case. The first was the walk-around right, and the law specifically states: "Subject to regulations issued by the Secretary, a representative of the operator ... shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any coal or other mine made [under section 103(a) of the Act] for the purpose of aiding such inspection ...." Another provision clarifies that compliance with this subsection is not a jurisdictional prerequisite to enforcement.

FELDMAN SAID THAT the Mine Act's legislative history made it clear that MSHA must permit miner and operator representatives to accompany inspectors. And "the absence of such participation" would not vitiate any citations or penalties issued as a result of the citation. The judge noted the substantial difference between absence and unauthorized denial. Normally, an operator's absence is benign. But here, the FMSHRC said there was an arbitrary and unreasonable refusal to allow mine operator participation, and this was an impermissible violation of the operator's statutory rights. In the majority commission opinion, the two commissioners went so far as to state that Stone's treatment by the MSHA inspector "lacked common decency."

The commission and its judges must consider whether citations should be set aside based on abuse of discretion, prejudice, or due process considerations. Feldman addressed each of these issues. In round one, it was held that the order was to be upheld because it focused on training and it was not in dispute that Stone had not received Part 46 training at the time of the inspection, and this order did not involve any safety or health hazards alleged to be present at the mine during the inspector's solo trip.

The judge asked MSHA to explain whether it believed the inspector's denial of Stone's rights constituted abuse of discretion. MSHA responded that the inspector did not have the discretion to violate the statute, assuming (for the sake of argument) that Stone's right was impermissibly violated. The judge found MSHA's failure to concede abuse of discretion under the circumstances disconcerting given the mandatory language of the Mine Act and its legislative history. During the initial hearing, MSHA claimed that it had the right to exclude anyone who did not have current Part 46 training. But on remand the agency admitted that this was not required to accompany an inspector.

MSHA also was asked if a citation could be vacated based on relevant and material abuse of discretion. MSHA tried to distinguish this case from two older cases by claiming that Stone's exclusion was abuse of discretion relative to conducting the inspection but was not an abuse of discretion when it came to the merits of the citations. As Feldman said, "The Secretary misses the point.... all involve issues of fundamental fairness."

Moreover, the cited conditions did not present walk-around dangers and absent any extraordinarily hazardous conditions, there was no rational basis for denying the operator's walk-around rights. The judge also scoffed at MSHA's suggestion that denial of rights was warranted because an inspector cannot predict what hazards might exist before entering a mine. He said that this mindset would justify denial of all walk-around rights. To the contrary, a mine operator's presence can be useful to alert the inspector to potential dangers based on his familiarity with the mine.

FELDMAN ALSO EXAMINED due-process issues in this matter. The Fifth Amendment to the U.S. Constitution provides that "no person shall be ... deprived of life, liberty, or property, without due process of law." Here, MSHA abused government authority by removing Stone from his own property against his will. Commission case law has long held that violations of due process are grounds for vacating otherwise valid citations.

MSHA tried to claim that the inspector's determination that Stone should be excluded was a misunderstanding and not a substantive due-process claim. The judge said that misunderstanding of the law is relevant to due process, such as when it involves confessions violating the right to counsel or illegally obtained evidence. Because the denial of Stone's right to accompany the inspector prevented him from exercising the statutory right to provide exculpatory information during the inspection, his due-process rights were violated.

Federal courts and the commission identified three factors for determining whether a violation of due process has occurred: the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used, and the probable value (if any) of additional or substitute procedural safeguards; and the government's interest including the function involved, and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

HERE, THE JUDGE found that Stone's interests were adversely affected, and his deprivation in accompanying the inspector to provide material information was readily apparent. He also ruled that the commission had concluded that the inspector erroneously deprived Stone of his right to participate and that Congress did not intend to empower MSHA to arbitrarily deny Section 103(f) rights in favor of any substitute procedure. On the final point, Feldman found there was no government interest that justified the denial of the rights at issue, and that mine operator participation furthers, rather than burdens, MSHA's interest in encouraging a safer mining environment.

The judge found that since the operator was deprived of the opportunity, "we will never know" what information he might have provided, and any testimony five years later would be "remote in time" and given little weight. MSHA's denial of Stone's due-process rights undermined the value of his testimony and the government should not be permitted to "benefit from its own misconduct." Once due-process issues arise, all direct and indirect evidence obtained as a result of governmental abuse is excluded. Consequently, a de factor exclusionary hearing occurred by virtue of finding that the operator's due-process rights were violated.

Finally, the ALJ held that the exercise of Section 103(f) rights was not contingent on the operator demonstrating "need" to accompany MSHA for the purposes of litigation. He found the unreasonable denial of these rights were prejudicial per se, regardless of whether it interfered with the operator's ability to defend himself, although it was also prejudicial for that reason. The ALJ held that all 11 citations must be vacated as a result of MSHA's violation of the mine operator's statutory rights, and that there were no adverse affects on safety in doing so because the citations had already been terminated after necessary abatement actions were taken.


Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at
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Publication:Rock Products
Date:Apr 1, 2010

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