A small, six-employee gravel operation in Bozeman, Mont., was awarded $65, 217 in legal fees under the Equal Access to Justice Act, after a judge ruled that the Secretary was not substantially justified in bringing a case against the company where it was accused of impeding an MSHA inspection.
Portable Inc. was inspected on Aug. 16, 2012. When the MSHA inspector arrived at mine property he proceeded past a small entry gate. He then flagged down a loader operator, who was working at the wash plant, and inquired about where he could find the person in charge.
As the inspector was speaking with the loader operator, another employee joined them and the inspector again asked where to find the person in charge. The employees told the inspector that the general manager was not on site.
One employee went to the office, returned, and explained to the MSHA inspector that he needed to sign in at the front office and that someone would then accompany him on the inspection. The inspector refused, stating he was not a visitor, but he did go and wait at the office. At the office, he was told that, for safety reasons, it was company policy to escort any visitor. The mine employees did not provide the inspector with any estimate of how long it would take to locate an escort.
Still Waiting
After a short time, the MSHA inspector told the employees that he knew how to be safe at the mine and that he was ready to begin his inspection. However, the inspector did not, at that time, tell the employees that he had the right to inspect the mine without an escort, nor did he advise that a citation could be issued for denying him access to the mine.
The employee waiting with the inspector said that the safety director, was doing payroll at the corporate office, located about a 10 minute drive away, and would get to the mine when she was able. At that point, the inspector told one of the employees that the longer it took to obtain an escort, the more inclined he was to issue a citation for impeding the inspection.
short time later, the employee said they were having trouble locating someone to escort him, and they decided to shut down the crusher so that the crusher operator could accompany him. The inspector again said the longer he had to wait, the more inclined he was to issue a citation for impeding the inspection.
Approximately 20 minutes later, the inspector said he had waited “longer than necessary” and that he was going to issue a section 103(a) citation for impeding his inspection. At that point, the safety director, told an employee via phone, to have the inspector start his inspection by himself. At that point there had been about a 30-minute delay from the time he entered the premises to the time he began the inspection.
As a consequence of the delay, MSHA contends that Portable unreasonably delayed the inspection, in violation of section 103(a) of the Mine Act, 30 U.S.C. § 813(a). As an alternative theory of liability, the Secretary had argued that Portable violated section 103(a)’s prohibition against giving mine personnel advance notice of an inspection.
Vacated and Dismissed
Review Commission Judge William Moran found that neither theory of liability was established by a preponderance of the evidence, and vacated the citation and dismissed the case.
During the trial, it was determined that MSHA inspectors would wait up to 30 minutes at times for escorts at other operations, and there were no written procedures for the amount of time to wait. It was also noted that in previous inspections at this particular portable plant, historically, inspectors have waited anywhere from 10 to 30 minutes for the safety director to then arrive to accompany them.
Judge Moran said in reviewing the entire record, that there was miscommunication and some confusion on Portable’s part in reacting to the MSHA inspector when he appeared at the mine to conduct his inspection, but there was no intent to delay the inspection. Nor, under the particular circumstances of this case, was the 30 minute delay 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 immediacy associated with his right to inspect. The mine’s reaction was also tempered by the history of its significant experience when MSHA inspectors had arrived in the past.
Valid Concern
When ruling in favor of the company, Judge Moran said, “It is important to recognize, however, the Secretary’s valid concern that ‘excusing’ a 30 minute delay would severely impair MSHA’s ability to protect miners.”
Under a different set of facts, intentionally and unreasonably delaying an MSHA inspector for 30 minutes, or possibly, in some circumstances, a delay of less time, could indeed weaken MSHA’s ability to protect miners, so this decision is limited to the specific circumstances of this is case.
In awarding fees to Portable, Judge Moran noted the inspector agreed to go to the office to wait for an escort. He never advised the company that he had a right to inspect the mine without an escort, only that the longer he waited, the more inclined he was to issue a citation for impeding the inspection. Once the inspector said he would not wait any longer, the company immediately accepted his demand.
The delay was minimal to non-existent once the inspector insisted that the inspection occur, Judge Moran said, and the inspector initially accepted the delay, and the inspector admitted he never explained the inspection requirements under Section 103(a) of the Mine Act. In addition, it was stressed by the judge that the inspector was never told that he wasn’t permitted to inspect the mine at any point. The employees never exhibited intent or indirectly denied access to the inspector.
The fact that MSHA inspectors had agreed in the past to wait for the safety director was also a significant factor. “The Secretary’s previous interactions with Portable set the stage for it’s expectations, and was indicative of the amount of time it considered to be a reasonable period to wait. It is fair to state that Portable’s past experiences with MSHA inspections led it to believe that it was acting in a manner consistent with those experiences, and therefore that it was not thwarting an inspection.”
PORTABLE INC., 7/2/2015, FMSHRC(J) No. EAJA 2015-1-M; 22 MSHN D-1661