Here’s A Story About An Operator Who Called Local Law Enforcement On A Field Office Supervisor Who Refused To Present His Credentials.
By Brian Hendrix
A reader in the industry recently asked me for my take on his practice of asking MSHA inspectors for their credentials. He explained that he asks for an inspector’s credentials, either an authorized representative (AR) card or a right of entry (ROE) card, when he doesn’t know the inspector or when he wants the inspector know that he understands his rights under the Federal Mine Safety and Health Act.
He suggested that this might be a good topic to cover here. I think he’s right about that, not least because it gives me an excuse to tell you about an operator who called local law enforcement on a field office supervisor who refused to present his credentials.
Here’s the Story
I promise that I did not make this up: A regular inspection of a small quarry (owned and operated by a large company) was not going well. The inspector was making all sorts of demands and had, in a very short time, issued a stack of citations.
As soon as he got the chance, the mine manager called his company’s safety manager and asked for his advice and assistance. The safety manager was (and still is) a very hands-on sort, has more experience with MSHA than most anyone and (as he puts it) is a “staunch advocate for miners and mine operators’ rights.”
The safety manager arrived at the mine shortly before the MSHA inspector returned from lunch. The inspector wasn’t alone. The field office supervisor has joined him. The safety manager knew the inspector, but he’d never met the field office supervisor. When he doesn’t know an inspector, he always asked for his or her credentials, so that was his first order of business.
The field office supervisor did not react well or kindly to his request. Not at all. Not even a little bit. He told the safety manager they had no right to see his credentials. The safety manager then explained all the reasons why he was wrong about that. I am fairly certain that the tone of this exchange might be described as “heated.” The field office supervisor was not persuaded.
I doubt the field office supervisor realized this at the time, but the safety manager was enjoying himself. He told the field office supervisor that the inspector was free to continue with his inspection, since he knew the inspector. However, the field office supervisor was not free to join him. As you might imagine, the field office supervisor was none too pleased by this. When he refused to leave the property, the safety manager contacted local law enforcement to request assistance with a trespasser.
Not Recommended
Now, to be very clear, I do not recommend this particular course of action. I would not have recommended it at the time. I will explain why in a bit. However, the safety manager had the law right (and he knew it).
Section 103 of the Federal Mine Safety and Health Act provides MSHA “authorized representatives” – MSHA inspectors – with a “a right-of-entry to, upon, or through” any mine. Most mine operators know that MSHA inspectors are 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 that MSHA inspectors will (and are required to) to just show up at a mine, unannounced, at least a couple of times a year.
The key here is the reference in Section 103 of the Act to “authorized representatives.” MSHA employs almost 1,900 people, roughly 1,200 of whom are in enforcement. However, the Act doesn’t provide all MSHA employees with a warrantless right of access or authorize every MSHA employee to issue citations or orders.
Only “authorized representatives” possess that authority, i.e., inspectors who have completed their training and have been officially designated as an authorized representative. If you ask an inspector for their credentials, you’re asking to see their “Authorized Representative” card (MSHA inspectors do have badges). Here’s how MSHA’s General Inspection Procedures Handbook explains it:
Authorized Representatives
Section 103(a) of the Act provides Authorized Representatives (ARs; also referred to as inspectors) of the Secretary of Labor with the authority to conduct inspections of coal and other mines. Inspectors shall be issued proper credentials under the Act prior to conducting inspections. When requested, ARs shall present their credentials to interested parties before conducting an inspection.
So, the safety manager was right on the law. When local law enforcement arrived on-site, the deputy talked to the safety manager and then, separately, he talked to the inspector and the field office supervisor. The field office supervisor refused to present his credentials and continued to insist that he had a right to enter the mine or access mine property, and I doubt he came across as calm, measured or reasonable. In contrast, the safety manager probably seemed amused.
The deputy got it. He understood the situation. He told the field office supervisor that he has to identify himself properly and display his badge whenever he pulls someone over or knocks on someone’s door, so he understood why the safety manager expects the field office supervisor to do the same. As such, he could either leave the property or present his credentials. If he refused to do either and persisted, he be arrested and charged with trespassing.
It was at the point that the field office supervisor admitted that he forgot his credentials. The safety manager offered to let him continue if he could get someone to fax (this was more than 10 years ago, back when faxes were still a thing) a copy of his credentials to the mine. The field office supervisor agreed and, eventually, the inspection continued.
As you might imagine, the relationship between the safety manager, the mine operator and MSHA suffered terribly as a result. It took all sorts of work and time to sort all of that out. Now, the safety manager was right on the law, but I would not have advised him to call local law enforcement to prove his point.
That’s an extreme example though. If I didn’t know an inspector or if I wasn’t sure he or she is who they claimed to be, I wouldn’t hesitate to ask for their credentials. Most inspectors – all good inspectors – won’t hesitate to present their credentials. It’s their obligation, part of their job.
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].