What Not To Do; And What Happens If You Do Just That.
By Brian Hendrix
Denial of entry. You don’t need an attorney to tell you that you never want to see those words in an MSHA citation or order that MSHA has issued to you. You definitely do not want to see those words in a complaint against you filed by MSHA in federal district court.
Section 103 of the Federal Mine Safety and Health Act provides that MSHA inspectors “have a right-of-entry to, upon, or through” any coal or other mine. Most mine operators know that MSHA is legally authorized to enter or access a mine, without a warrant, at any time and with no prior notice to anyone.
Most mine operators know (and expect) that an MSHA inspector will (and is required to) just show up at a mine, unannounced, at least a couple of times a year.
Most mine operators would never impede, interfere with or deny MSHA entry for an inspection. That said, every now and then, it still happens. In fact, it happened at a small pit in Missouri just last fall when an MSHA inspector arrived for a regular inspection.
According to the MSHA inspector’s statement:
[a]fter I drove in, [the mine operator] met me while he was driving a front-end loader with the full scoop in the raised position. He approached me and stopped the loader right next to me to talk. [He] stayed in the loader initially while I introduced myself and he only opened the door. I told him that I was there to conduct the required semi-annual inspection of the mine. [The mine operator] then jumped down and immediately began to scream and yell and I could see spit coming out of his mouth. He shouted that he would not allow me to stay at the mine or inspect anything. [He] told me to “get off his property, he didn’t have any employees,” while shouting profanity.
[The mine operator] returned to his loader and moved it to dump the load. He then drove the loader back to me and stopped extremely close while continuing to harass and yell at me. I decided that it was unsafe to continue the inspection, and I started to leave the mine. I stopped at the mine entrance to call my supervisor . . . [The mine operator] started back up the road to where I was sitting about 100 yards away trying to get a signal for my cell phone. I then left the mine property and what I felt was a dangerous situation to call my supervisor.
Later that day, the inspector returned to the mine with his supervisor. According to the Field Office Supervisor:
[b]oth of us drove our own pick-up trucks to the mine and entered the mine property. While driving down the main entry gravel road, we pulled onto the shoulder, because [the mine operator] was driving the front-end loader toward us and he was flying down the road directly at us with a full bucket that was raised. [He] slammed his brakes at the last minute and right next to [the inspector’s] truck with some gravel and dirt flying out of the scoop. I was really worried that [he] would physically attack [the inspector], but he did not. But [he] jumped from the loader and immediately began to scream and yell profanity at us to get off his property. It was bad.
[The mine operator] was cussing and screaming at us about not inspecting anything and how bad MSHA is. [He] threatened to hang himself from his plant and leave a note saying that it was MSHA’s fault. [He] was swinging his arms angrily and stormed over to yell at me and screamed “I’m not talking to nobody.” He told us again to get off his property. We both thought that he was capable of physical violence and we decided to leave the mine. We both believed that [he] could attack us, so we left.
After they left, the field office supervisor contacted the mine operator by phone to discuss the situation again and the possibility of conducting the inspection.
[The mine operator] continued his tirade and told me not to ever try to come down that road again. [He] shouted “You go and get your lawyers and come on out tomorrow. I’ll be waiting for you and you’ll see what happens.” I ended the call because of the continuing abusive language and threats.
What Happened Next
Of course, the story does not end with that phone call. What happened next was utterly predictable. Working with the Solicitor, MSHA filed a complaint in federal district court for a preliminary and permanent injunction barring the mine operator “from threatening, harassing, intimidating, interfering with, hindering, or delaying” MSHA, “from refusing to admit [MSHA] and from refusing to permit inspection or investigation of the [mine].”
Next, a United States Marshall was appointed to serve the mine operator with a copy of the complaint and a summons. A little while later, the mine operator changed his tune and agreed to a “consent judgment” enjoining him from interfering with, impeding or otherwise denying MSHA entry to the mine.
Needless to say, MSHA has since inspected the mine and issued a handful of citations. MSHA also issued a press release about it.
As I said above, these types of cases are few and far between. Most of the time, they involve very small mine operators (although the vast majority of mine operators, large and small wouldn’t deny or interfere with MSHA’s right-of-entry).
The outcome is predictable. MSHA will go to federal court for an order, MSHA will get an order and MSHA will inspect the mine. A denial of entry might buy a mine operator a little time, but it will come at a high cost.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected].