Preparing for OSHA and MSHA Inspections

MSHA will inspect each surface mine twice per year, and each underground mine four times per year. Additional inspections may be warranted based on accidents, other incidents, miner complaints, or special emphasis programs.

OSHA inspects worksites based on complaints, incident/accident reports, special emphasis programs, or when an employer is listed on a site-specific target list based on incidence rates in selected SIC codes. OSHA must have a warrant to search worksites, unless the employer grants permission. Requiring OSHA to obtain a warrant is rarely a good idea, as it sets up an adversarial atmosphere from the start. However, you should consult with counsel to determine, on a case-by-case basis, whether there is merit in obtaining a warrant.

A. OSHA Inspections

OSHA is required to obtain a private employer's consent or a valid warrant before entering the premises. The employer can challenge a warrant, or seek to restrict its scope. However, OSHA can and will cite violations "in plain view" from public areas where no permission to enter a site has been given (may include looking through a fence, or videotaping worksite from adjacent building, as well as observing violations by driving by an open worksite).

Generally, OSHA initially uses an administrative warrant (issued by an OSHA Area Director rather than by a judge). An employer's refusal results in the OSHA Solicitor seeking court enforcement. However, insisting that an OSHA inspector have a warrant will cause adversarial relationships and should be carefully thought out. Voluntary admission of the compliance officer is preferable in most instances.

OSHA also has the authority to issue investigative subpoenas for both testimony and documents, and these are also subject to court review for their basis, scope and the protection of legal privileges. Subpoenas can solicit testimony from the employer's management personnel, hourly employees and contractors (including outside safety and health consultants). These subpoenas can be obtained prior to the issuance of any citations, and the information is gathered for the purpose of substantiating the future enforcement action. Subpoenas can also be issued during the course of litigation, in addition to the usual discovery methods, to obtain testimony of third parties and documents.

The following guidelines are applicable at general industry, construction and mining operations:

Pre-Inspection Preparation

  • Adopt formal guidelines governing OSHA inspections to include whether or not a warrant should be required. MSHA can enter a worksite without obtaining a warrant at any time, with or without cause.

  • Clarify under what circumstances counsel will be notified.

  • Determine applicable OSHA/MSHA inspection and certification records and paperwork requirements. Adopt a policy on what records may be disclosed voluntarily (without a subpoena or warrant), and how to document inspector requests and your responses. Records are covered by an "expectation of privacy," requiring the agencies to obtain a subpoena or warrant, based on probable cause, if they are not voluntarily produced by the employer.

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