CHAPTER 4 INSPECTIONS AND INVESTIGATIONS

• Jurisdiction: United States

Mine Health and Safety
(Oct 1973)
CHAPTER 4
INSPECTIONS AND INVESTIGATIONS
Edward F. Morrison
Director, Labor Relations Metal And Minning Division Kennecott Copper Corporation
New York, New York

This paper reviews the matter of inspections and investigations under the Federal Coal Mine Health and Safety Act of 1969 and the Federal Metal and Nonmetallic Mine Safety Act of 1966.

Significance

If there were a need to stress the significance of this subject, it could be done simply by observing that the federal mine inspector is probably the most formidable government official that a mine operator has ever dealt with. The inspector has authority to take or initiate actions which can result in partial or complete mine closures, withdrawal and debarment of miners, payment of from one to two times wages to miners idled by closure orders, and civil and/or criminal penalties for violations of orders or standards. Under the present state of the law it would appear that all financial losses stemming from a withdrawal order must be sustained by the mine operator regardless of the propriety of the order; and, if an operator refuses to comply because he questions the propriety of an order, he also faces the possibility of a combination of civil and criminal penalties including up to one to two years' imprisonment.

Background

State legislation dealing with inspection and investigation of safety and health related matters in the mining industry is long-standing and well established.¹ At the federal level, legislation providing for safety standards, for certain underground coal mines can be found as early as 1891.² In 1910 the U.S. Bureau of Mines was created and authorized to make safety related "inquiries and technologic investigations" in coal and non-coal mines (however, the Bureau was denied the authority to also inspect or exercise enforcement authority in mine safety matters.)³ Thirty-one years later, in 1941, authority to make annual inspections in coal mines and to require operators to furnish accident data was finally conferred on the Bureau (but still with no enforcement authority).⁴ With few exceptions in federal legislation, there were no provisions for mandatory safety

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and health standards up through this time. However, the forerunner of today's mandatory standards — at least for coal mines — was developed in 1946 as part of an agreement between the Secretary of Interior and the President of the United Mine Workers of America, covering operations of the bituminous coal mining industry which had been seized by the federal government under authority of the War Labor Disputes Act.⁵ The agreement became known as the Federal Mine Safety Code and was enforceable by Interior Department inspection personnel under the seizure order (1946-47). Thereafter the Secretary directed his inspectors to use the Code as an inspection guide; and in several subsequent labor agreements with private mine operators the UMWA was successful in incorporating the Code for the purpose of binding operators to compliance and to correction of violations reported by federal mine inspectors.⁶

The first federal inspection enforcement authority was provided for in legislation enacted in 1952.⁷ Known as the Federal Coal Mine Safety Act, it set forth mandatory safety standards and gave federal inspectors authority to issue withdrawal orders in cases of "imminent danger" and of failure to abate violations of the standards within a "reasonable time" (small mines employing fewer than 15 miners were exempt until the law was amended to delete the exemption in 1966).⁸

In 1966, the present non-coal mine safety act, the Federal Metal and Nonmetallic Mine Safety Act, became law.⁹ This is the first federal mine safety and health law dealing with non-coal mines. Like the Federal Coal Mine Safety Act of 1952, this non-coal mine safety act includes provisions for federal inspections (at least one per year in underground mines as compared to four per year under the coal act),¹⁰ imminent danger findings and withdrawal orders,¹¹ withdrawal orders for failure to abate notices of violations,¹² an independent review board to determine appeals from orders,¹³ and provisions for "State Plan" participation in the enforcement of mine safety standards.¹⁴ Unlike the 1952 coal act which set forth specific mandatory safety standards, the non-coal act contains no specific standards; instead, it authorizes the Secretary of Interior to develop and promulgate standards.¹⁵ The 1952 coal act contained no such authorization. Also the concept of "unwarrantable failure" to comply with mandatory standards, present in the 1952 coal act, as amended,¹⁶ was left out of the non-coal act.

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Finally, the present coal mine safety act, the Federal Coal Mine Health and Safety Act, became law in 1969.¹⁷ This act retains many of the major features of the 1952 coal act except that, unlike the non-coal act, it contains no provisions for an independent board of review or for State Plans. In addition, the 1969 coal act gives the Secretary of Interior authority to develop and promulgate mandatory safety standards¹⁸ and gives the Secretary of Health, Education and Welfare (HEW) authority to develop and have promulgated mandatory health standards.¹⁹ The provisions for inspections and investigations are strengthened considerably over the 1952 coal mine act and are substantially more exacting than the provisions of the 1966 non-coal act, as will be shown in the following review.

Inspections

Clearly the most important objective of both mine acts is to insure that mine operators comply with mandatory safety and health standards.²⁰ Thus, it might be said that the first basis for any inspection is the status of actual compliance with legislated or promulgated mandatory standards. These types of inspections are commonly referred to as "compliance inspections." It should be noted that for inspection purposes, there is no "general duty" compliance clause²¹ in either act (however, in practice the reach of many of the standards has been so broadened by interpretation that it might be said there is a "general" duty under either act to eliminate recognized hazards.)

A second basis for inspection, unique to the non-coal act, is the status of compliance with non-mandatory standards known as "advisory standards."²² In practice, considerable attention is given to the status of compliance with these advisory standards during compliance inspections. Compliance recommendations are routinely incorporated in the official post-inspection report, which the operator receives, along with the list of notices, if any, requiring the operator to abate violations of mandatory standards within a fixed period of time.

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Another obviously important basis for any inspection, under both acts, is a determination of the presence of any "imminent danger" which is defined as any "condition or practice" which "could reasonably be expected to cause death or serious physical harm" before the condition or practice can be abated.²³

In addition to the above compliance inspection provisions, both acts authorize inspections for informational purposes, such as the obtaining, utilizing and disseminating of information relating to health and safety conditions, causes of accidents or occupational diseases.²⁴

The coal act requires that all inspections will be "frequent" but, in the case of compliance inspections, there must be at least four per year in each underground mine.²⁵ The noncoal act requires that inspections will be made at any time the Secretary deems necessary but compliance inspections must be held at least once per year in each underground mine.²⁶ Both acts give the Secretary or his representatives an unrestricted right of entry to mines for the purpose of making these inspections.²⁷ In addition, under the coal act only, the Secretary of Health, Education and Welfare also has the right of entry in order to carry out his responsibilities to develop improved mandatory health standards.²⁸

Before examining the powers an inspector may exercise, certain other significant features of the statutory inspection structure are worth noting particularly insofar as they differ between the two acts

The coal act provides that, in the case of an inspection to determine whether an imminent danger exists or whether there is compliance with mandatory standards or notices, orders or decisions issued by the Secretary, no advance notice of the inspection will be given "to any person".²⁹ There is no similar provision in the non-coal act, but as a matter of policy the same rule against advance notice is observed "except when it is necessary to facilitate the inspection."³⁰

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The coal act also contains three provisions bearing on the rights of miners which are absent from the non-coal act. These are (1) the right of miners to exercise all rights provided them under the act without discrimination;³¹ (2) the right to have a representative of the miners accompany the Federal inspector on mine inspections,³² and (3) the right, through a representative of the miners to give written notice to, and obtain "an immediate" inspection by, the Secretary when the miners' representative has reasonable grounds to believe an imminent danger exists or a mandatory standard is being violated.³³ Under the non-coal act, as a matter of policy when an inspector arrives at a mine he notifies any union representative and advises him that union "participation, if any, is at the discretion of the operators."³⁴

In addition to the various authorized types of inspections previously noted, there are provisions under both acts for non-routine or special and investigative inspections. Typical of these are the special inspections to determine whether an order, notice of violation or decision of the review authority (i.e., the Secretary under both acts and the Federal Metal and Nonmetallic Mine Safety Board of Review under...