Unsafe Acts By MSHA Inspectors?

What Happens When An MSHA Inspector Engages In An Unsafe Act, Violates A Standard Or Refuses To Comply With The Rules? – And Other Questions.

By Brian Hendrix

Is an MSHA inspector required to sign-in and sign-out like every other visitor to a mine? Is an MSHA inspector required to comply with MSHA regulations requiring personal protective equipment? Is an MSHA inspector required to comply with company policy requiring personal protective equipment? Does an MSHA inspector have the right to enter, travel through or remain in a hazardous area? 

These questions are real, not hypothetical. 

Before I suggest some answers to those questions, I will say that most inspectors try to comply, to follow the rules and to otherwise model the behavior and actions that MSHA expects of its inspectors. A few do not. 

I also assume that most (all?) field office supervisors and district managers (and ADMs) have fielded complaints from mine operators about inspectors that turn out to be mistaken, are the product of some misunderstanding or confusion or are simply inaccurate. They weren’t there (most of the time), and the person who’s calling to complaint likely wasn’t either. If either party fails to confirm what they’ve heard from others or otherwise gets their facts wrong, it’s a mess. 

Additionally, I would imagine that a handful of complaints have been manufactured. There are more than 320,00 miners and 12,500 mines in the country, and it’s safe to say that there are a few bad apples employed at a handful of those mines. 

Here’s A Benign Example
An inspector cites a bunch of violations that were obvious and easy to avoid. The mine superintendent knows that his boss, the plant manager or mine manager won’t be pleased with him. In their first conversation about the inspection, the foreman tells his boss that the inspector was difficult to work with an wasn’t wearing his hard hat or safety glasses during the inspection. This prompts the mine manager to call the Field Office Supervisor and complain that the inspector wasn’t following the rules. 

Turns out (as the field office Supervisor discovers), the inspector did remove his hard hat during the inspection, but only while he was eating lunch and for brief periods during the inspection to wipe his face. The inspector also took off his safety glasses several times, but only briefly to wipe them off. Obviously, you really don’t want to be the embarrassed mine manager or the newly unemployed foreman in this hypothetical. 

Now, On To Our Questions
What should you do when an MSHA inspector engages in an unsafe act and/or refuses to comply with MSHA’s standards and/or company policy? My initial answer to this question has little to do with MSHA’s legal authority or a mine operator’s legal duties and everything to do with safety. You don’t want to see anyone injured (or worse) at your mine. We expect and most mine operators require miners (hourly and management) to speak up if they see anyone engaged in or about to engage in an unsafe act or practice. Anyone includes MSHA inspectors. 

Safety professionals will tell you that, when you observe anyone engaged in or about to engage in what looks like an unsafe act, never assume that the co-worker sees what you are seeing or knows something better or different than you. Again, anyone includes MSHA inspectors. 

I understand why you might be more reluctant to call out an MSHA inspector’s unsafe act or practice. Good inspectors will appreciate that your concern and willingness to speak up. 

However, bad inspectors may react very poorly, even if you are respectful and diplomatic about it and even if you’re right. Some will consider it as a challenge to their authority or an attempt to impede their inspection. 

We all know that Section 103 of the Federal Mine Safety and Health Act provides MSHA inspectors with the “right-of-entry to, upon, or through” the mine, and that MSHA is legally authorized to enter or access a mine, without a warrant, at any time and with no prior notice to anyone. 

If you know you’re dealing with a bad or a difficult inspector, I recommend that you start the conversation by telling him that you recognize that he has the authority to go wherever he wants, whenever he wants, that you know you have no authority to direct or control him. After that, tell him why you’re concerned about his safety (and, perhaps, your own safety). If he reacts poorly after that, so be it. 

What If He Continues?
What if he dismisses or ignores your concerns altogether? Or claims that you’re just trying to impede his inspection? Let’s say that the inspector insists on inspecting a highwall from a hazardous location, and your assignment is to accompany the inspector everywhere he goes. You know that the mine operator has a right to have a representative accompany inspectors, and you’re the company’s representative. 

The answer here is simple. If you’re not comfortable accompanying the inspector, don’t accompany him. Let him go. Of course, you should document everything, e.g., the conditions, what you said, what he said. Ideally, there will be a witness to your discussion with the inspector, and I’d get their statements. 

What about the inspector who refuses to comply with company policy (and MSHA’s PPE rule) and doesn’t wear safety glasses or steel-toed boots? First, I’d pull the inspector aside and politely and respectfully explain that the company and MSHA both require miners to wear certain PPE and ask him to do the same. 

If the MSHA inspector flouts the rules, miners are more likely to do the same. Compliance and a culture of safety aren’t compatible with a “Rules for thee, not for me” approach. If he refuses, ask him why he is refusing. Document what he says. 

If he claims that the rules don’t apply to him, you might point him to MSHA’s General Inspection Procedures Handbook. It provides that “MSHA employees should comply with applicable state and company health and safety rules and regulations unless such compliance interferes with the performance of their duties.” I believe that this has always been MSHA’s policy. 

Finally, what do you do if an inspector refuses to sign-in and sign-out like every other visitor to the mine? First, MSHA’s Program Policy Manual states that: “An inspector shall not sign a responsibility release form when entering a mine to perform his duties. An inspector may sign a check-in and check-out book located at the mine, provided that it does not involve release of liability.” 

If your sign-in sheet includes a waiver or a “responsibility release” provision, the inspector shouldn’t and won’t sign it. If it’s just a sign-in/sign-out form, the inspector should sign in and out. If an inspector refuses, you might explain why (from a safety standpoint) you require visitors the mine to sign-in and point him to the Program Policy Manual. 

If that doesn’t convince him (or if he’s an inspector you know you can’t reason with), I’d document the conversation and let it go for the moment. You should already be documenting his arrival and departure times. 

I don’t know how many times I’ve answered these questions over the last two decades, but I do know that they start with new, inexperienced inspectors who aren’t well trained or supervised or with bad inspectors who aren’t well supervised. MSHA’s attrition rate is relatively high, and the agency lost more than 30% of its employees between 2013 and 2022. Plus, MSHA is now hiring people who have no real mining or mining equivalent experience. Thus, I expect the frequency of these questions to increase. 

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].

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