Managing hazard complaint inspections

Usually when a Mine Safety & Health Administration (MSHA) inspector arrives on mine property, the inspector is there to conduct a regular inspection. 

Occasionally, however, the inspector begins an inspection by announcing that this is a “hazard complaint inspection.” From there, the inspector’s activity may resemble a regular inspection, but operators need to be aware that a hazard complaint inspection is significantly different.

Understanding hazard complaints

First, this special type of inspection is focused on allegations made in a complaint. Anyone can make a hazard complaint to MSHA, including hourly miners, supervisors, managers, contractors and virtually anyone else – whether they work at the mine or not.

For miners, the right to request an immediate inspection is one of the basic miners’ rights in the Federal Mine Safety & Health Act. Section 103(g) states that whenever a miners’ representative or, if there is no miners’ representative, a miner has reasonable grounds to believe that there exists a violation of the Mine Act or one of MSHA’s mandatory health or safety standards or that an imminent danger exists, he or she may notify MSHA and have an immediate inspection conducted at that mine. 

Although the Mine Act would seem to limit a miner’s ability to make a hazard complaint to only circumstances where the mine has no miners’ representative, MSHA accepts hazard complaints directly from miners or other persons who are not even mine employees, including an anonymous complaint.

Second, there actually are three types of complaints MSHA will investigate, and the agency handles each somewhat differently.

■ Section 103(g) complaints are made to MSHA by miners or miners’ representatives and concern a potential imminent danger or violation of a mandatory standard of the Mine Act.

■ A non-miner or anonymous complaint concerns the same potential types of allegations, but the complaint is from someone who cannot be identified as a miner or who requests to be anonymous.

■ “Other” complaints allege something other than a possible imminent danger or violation of a mandatory standard of the Mine Act.

MSHA provides the operator with written notice of the complaint allegations and the ultimate findings only where the inspection concerns a 103(g) complaint. In the other two types of complaint inspections, MSHA does not disclose to the operator the subject of the complaint or the findings, unless a related citation is issued.

Managing a complaint

The same violation cited in a regular inspection versus in a complaint inspection may contain very different allegations. Inspectors tend to elevate the negligence level and other findings in citations issued due to hazard complaints.

So how should a mine operator handle a hazard complaint inspection? If the inspector provides a copy of the hazard complaint, give some thought as to who would be best to represent the company given what you see in the complaint and carefully consider what information will assist you in responding to the allegations.

Manage the walk-around with the inspector much as you would a regular inspection. Although the inspector is there specifically to look into the allegations in the hazard complaint, any other potentially violative conditions the inspector observes also can be cited. Be cautious in answering questions about how long a condition has been there or who may have known about it. 

One very important thing to keep in mind is to avoid any actions or comments that could create the impression that management intends to retaliate against the person who made the complaint. This is prohibited under the Section 105(c) discrimination provision of the Mine Act. 

Also prohibited is any attempt to interfere with a miner making a complaint to MSHA, including any expressed disapproval of a miner contacting MSHA with a complaint. Management personnel should not engage in any discussion or speculation about who may have called MSHA.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com