Section 103 of the Federal Mine Safety and Health Act of 1977, the Mine Act, gives MSHA inspectors the right to carry out inspections at metal/nonmetal and coal mines, accompanied by an operator’s representative as well as a miners’ representative. Under the act, an inspector can just “show up”— meaning that neither representative may be able to exercise that right until the inspection is well under way. In addition, representatives are prohibited from engaging in behavior that would be deemed either abusive or intimidating toward the inspector. Of course, it is a crime to assault, intimidate or impede MSHA inspectors in the completion of their duties, or to conceal hazards that an inspector may otherwise locate. MSHA has now asserted in several cases that even asking the inspector to wait until the representative can be present may constitute “impeding.” For that reason, it is imperative that mine operators and representatives understand and comply with the provisions of the Mine Act when they seek to exercise their accompaniment rights.

Although not an exhaustive list, impeding has been found to include refusing to give an inspector the right to conduct an inspection, behaving in an aggressive manner toward an inspector while attempting to conduct an inspection, or providing signals to miners in order to conceal conditions before an inspector is able to reach the area.

U.S. District Court Judge Irene Berger recently made headlines with her decision to go beyond federal guidelines and sentence David Hughart, formerly of Massey Energy, to 42 months in prison followed by three years of supervised release for conspiring to impede MSHA inspections and federal mine safety laws. Judge Berger found that Hughart aided in the violation of health and safety laws by concealing violations and warning miners of the MSHA inspector’s arrival on-site, in order to allow violations to be hidden.

Although Hughart’s hefty punishment is certainly a precedent, the issue of what is considered the proper penalty for impeding inspections is nothing new in the world of mining. At least three administrative law judges of the Federal Mine Safety and Health Review Commission have recently addressed the issue. For example, one judge recently raised an originally proposed $1,112 assessment to $25,000 for an impeding violation.

The courts are consistently demonstrating that the original scope of assessing penalties can, and lately will, be exceeded in instances where mine representatives do not comply with MSHA regulations. Additionally, MSHA is making the argument that concealing violations and warning others of an inspector’s arrival refuses an inspector the right to a proper inspection. This could mean MSHA is taking an even closer look into the behavior of representatives accompanying inspectors.

With all this in mind, how do you properly exercise your right to have a representative present for an inspection without running afoul of the law by impeding the investigator? The answer is simple: you need to have a plan. Your plan could include something as simple as having a first point-of-contact on-site upon the inspector’s arrival. In the event that no one is present at the time the inspector arrives, the plan should detail how to contact representatives on behalf of the operator and the miners, which would assist both you and the inspector. The plan should also give instructions for what to do if the inspector refuses to take any action to locate either of the statutory representatives prior to beginning the inspection.

One plan that has proved useful has been for the contact to inform the inspector that they wish to exercise their statutory right of accompaniment and provide the miners with information that would allow them to exercise their rights as well. Once that has been stated, the contact then asks the inspector how they wish to allow them to exercise those rights. This is a “no lose” approach, as it may prompt the inspector to allow some effort to exercise those rights. If the inspector refuses, it provides a record on which to challenge the inspector’s conduct, should that be necessary. Of course, it won’t work unless the contact takes very careful notes.

Ironically, fresh on the heels of MSHA’s recent impeding violation decisions is the late September release of a new handbook and online resource that clarifies the rights of miners’ representatives under the Mine Act. The Online Guide to Miners’ Representatives states that on the first day of an inspection, an MSHA inspector will notify representatives of the operator and miners of the type of inspection being conducted and will schedule a time for a pre-inspection conference. It would be helpful to show a copy of this guide to the inspector. By using this time and this source to ask any questions you may have, the likelihood for miscommunication is lessened and you are able to make certain that your right to a representative is exercised or that a good record is created if that is not allowed.

In the end, you’ll find that being proactive, asking questions, and educating those who will serve as representatives can only aid in the inspection process and reduce the risk of facing an impeding violation. In the event that you implement a plan of action, be sure that it is well-established, well-communicated and well-understood throughout the mine. Although MSHA compliance is of the utmost importance, so are your rights. Establishing your plan upfront may be the only way to further those interests.

Mark Savit is a partner in the Denver office of Jackson Lewis and can be reached at mark.savit@jacksonlewis.com. Breyana A. Penn is a law clerk in the Denver office at Jackson Lewis and can be reached at breyana.penn@jacksonlewis.com.