Determining when MSHA is inspecting or investigating

Mine operators are accustomed to the Mine Safety & Health Administration (MSHA) regularly being on site for inspections, but the agency can also conduct enforcement activity in other ways.

In some cases, operators do not realize until well into a process that what MSHA is actually doing is conducting an investigation.

There are significant differences between MSHA inspections and investigations. Operators have different rights and obligations, and MSHA’s authority is not the same. What is at stake is also quite distinct. Consequently, operators will want to manage inspections differently than investigations.

Types of investigations

MSHA enforcement investigations are conducted as a follow-up to a specific occurrence. An accident investigation is a prime example.

Whenever MSHA is notified of a fatality or a serious injury, for example, the agency usually arrives on site quickly to start an accident investigation. Other types of “accidents” can also prompt investigations.

The definition of “accident” in Part 50 of MSHA’s regulations covers a variety of occurrences that must be reported to MSHA promptly. These include certain entrapments of individuals, fires and flyrock incidents. Regardless of the prompt, an accident investigation will often result in elevated citations and orders.

MSHA conducts special investigations to follow up on allegations of management involvement in a violation. Whenever an unwarrantable failure citation is issued, a special investigation is a possibility.

A special investigation can start days after the citation is issued. MSHA will gather evidence to determine whether to issue a civil penalty to an agent of the company for the violation.

A third type of enforcement investigation is the discrimination investigation. Whenever a miner files a complaint with MSHA alleging discrimination or interference related to miners’ rights to engage in safety activity, the agency conducts a discrimination investigation. The purpose of the investigation is to assist the agency in deciding whether the complaint has sufficient merit to be pursued by the government against the mine operator.

Any of these investigations can result in enforcement action against the company or, in the case of a special investigation, against a supervisor or manager.

Although some of the elements of an investigation may seem similar to an inspection, the overall investigation process is different. Often, the agency personnel conducting the investigation are trained and designated as investigators. They may use different procedures and methods to gather the information.

Regardless of the investigation type, MSHA has a right of entry to observe conditions that may relate to the investigation’s purpose. An investigator may take photographs, samples or video recordings of the conditions observed, just as an inspector may do. An operator has a right to accompany an investigator during an on-site investigation.

The agency also has the right to require that the mine operator produce documents for the investigator. These must be produced within a reasonable timeframe, unless MSHA’s regulations specify different timing. No search warrant is needed, but the agency’s request must be related to the purpose of the investigation.

Investigators invariably will want to conduct witness interviews. MSHA does not have the right, however, to require anyone to submit to an interview or sign a statement. Witnesses may decline or choose to have someone with them in an interview. The mine operator, meanwhile, may want to have management interviews scheduled while counsel is present.

So which is it?

The prohibition in the Federal Mine Safety & Health Act against providing advance notice of an inspection does not apply to an investigation.

Even so, MSHA investigators often arrive at a mine without giving any prior indication to the operator that an investigation is starting or that they will be coming on any given day. Consequently, the mine personnel interacting with the investigator may not even realize they are dealing with an investigator. But even if personnel know an investigation in ongoing, they may not understand its focus.

If MSHA is on site for some enforcement activity and it is not clear if the agency is doing an inspection, you may want to ask: “Is this an inspection or an investigation?”

If it is an investigation, ask what type of investigation it is and what the allegations are that the agency is investigating. You can then decide how best to manage the investigation activity.

Related: MSHA resumes practice of monthly impact inspections

Featured Photo: P&Q Staff