MSHA violated an Illinois underground coal operator’s constitutional guarantee of due process and a statutory right under the Mine Act by prohibiting the operator from providing personnel to accompany inspectors during an impact inspection.

The case arose after an inspection team arrived at Big Ridge, Inc.’s Willow Lake Portal in September 2011 to conduct an impact inspection. Such inspections have been conducted since April 2010 at mines MSHA believes deserve special attention due to compliance or safety problems. Upon arrival, the MSHA team secured the phones. A supervisory MSHA official then directed a mine official not to alert anyone underground to the inspectors’ presence, fearing doing so would provide advance notice and the opportunity to correct violations before the inspection team could discover them. The team then went into the mine and split up to begin their inspection without escorts provided by the operator, and one of the inspectors wrote three citations.

Section 103(f) of the Mine Act specifically requires MSHA to afford operators an opportunity to accompany inspectors, a mandate commonly referred to as the walk- around right. In a decision released June 19, Administration Law Judge McCarthy determined the statutory provision had been violated.

McCarthy held that the operator had also been deprived of property without due process under the Fifth Amendment. He said this occurred because the operator had a “legitimate claim of entitlement” to accompany the inspector, the company was denied the opportunity to develop information in its favor, and the resulting fines were a “tangible property interest” because they compelled the operator to relinquish money. An injury to a property interest does not represent a deprivation if it was due to negligence, but in this case MSHA’s action was deliberate, McCarthy said.

The judge noted that the inspectors had deviated from their usual practice of requesting escorts without telling anyone at the mine of their intentions until they instructed their escorts where in the mine they wanted to go.

McCarthy determined that applying an exclusionary rule to the evidence supporting the citations would provide an appropriate remedy. As a result, he excluded key evidence supporting two citations because he said in effect that the absence of an escort prevented the operator from properly defending itself. With insufficient proof left to support the alleged infractions, McCarthy vacated the citations and the associated $14,141 in fines. However, he upheld the third citation and $1,203 fine because he said the alleged violation was such that the operator could have developed information later in an effort to mitigate the enforcement action.