Determining When MSHA Is Inspecting or Investigating

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

Quick Hits

• MSHA can conduct enforcement via inspection or investigation.
• Operators have different rights under inspections and investigations, and MSHA’s authority is not the same under either type of enforcement action.
• An investigation may result in enforcement action against a company, or, in the case of a special investigation, against a supervisor or manager.

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 may want to manage inspections differently than investigations.

Types of Investigations

Accident Investigations

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

When 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.

Special Investigations

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 or even months after a citation is issued. MSHA will gather evidence to determine whether to issue a civil penalty to an agent of the company for the violation.

Discrimination Investigations

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 will conduct 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 as a case filed against the mine operator.

Any of these investigations may result in enforcement action against a 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 an investigation are trained and designated as investigators. They may use different procedures and methods to gather information.

Regardless of the investigation type, MSHA has a right of entry to observe conditions that may relate to an investigation’s purpose. An investigator may take photographs, samples, or video recordings of 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 a mine operator produce documents for an 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 an interview request 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 and 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, mine personnel may not realize they are interacting or dealing with an investigator. Even if personnel know an investigation is 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, operators may want to ask, “Is this an inspection or an investigation?”

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

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the Mine Safety blog as additional information becomes available.

A version of this article was previously published in Pit & Quarry magazine.

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