COALEX REPORT 227

	Coalex Report 227

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   

COALEX State Inquiry Report - 227
August, 1992

Olga Brunning, Esquire
Department of Natural Resources
Tawes Office Building
580 Taylor Avenue
Annapolis, Maryland 21401

TOPIC: CITIZENS' REQUEST FOR FEDERAL INSPECTION: LIABILITY FOR INJURY

INQUIRY: According to 30 CFR 842.12, a complainant may accompany an inspector investigating
possible violations. The mine operator does not want the complainant on the mine site for fear
that the operator will be liable if the complainant gets injured during the inspection. Please locate
any material which discuses an operator's liability for citizens who accompany inspectors on such
trips.

SEARCH RESULTS: Research was conducted using the COALEX Library and other LEXIS materials.
Two Federal Register preambles to OSM final rules were identified that discuss the issue of
operator liability for injury to a citizen during inspection tours. Copies of these notices and the
preamble to proposed rules are attached.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

1. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule. 
   Section 840.15  Public Participation. "[T]he Senate Report indicates that Congress intended that
citizen involvement be provided in all areas of the regulatory process".

   Section 842.12  Citizens' requests for Federal inspections. "Commenters requested a
modification to Section 842.12 to require a citizen to sign a release from damages for any injuries
before being allowed to accompany the inspector on an inspection. The Office did not make this
modification. The Act gives the citizen a right to accompany the inspector on the inspection. 
Ordinary tort law principles can be used to determine whether, if a citizen is injured on the site
during an inspection, he may hold the operator liable for such injury."


2. 46 FR 58464 (DECEMBER 1, 1981). Proposed rules. Federal inspection and enforcement.
Section 840.15  Public Participation.  
   OSM proposed to delete the requirement that state programs contain the requirement that
citizens have the right to accompany state inspectors onto the minesite when the inspection is a
result of a citizen's request.


3. 47 FR 35620 (AUGUST 16, 1982). Final rules. Inspection and enforcement. Section 840.15 
Public Participation. 
   In response to comments received, OSM decided not to adopt the proposed change regarding a
citizen's right to accompany an inspector. In explaining the reason for its decision, OSM stated:

"Citizen participation in inspections reduces OSM's oversight burden and does not compromise the
operator's legitimate business interests. The commenters pointed out that citizens have
contributed to the effectiveness of enforcement under the interim program, and that Congress
certainly did not intend to return primary regulatory responsibility to the States without providing
this safeguard." 

"Two commenters who opposed the proposal recommended that OSM address industry concerns
by (1) clarifying the operator's liability for any harm a citizen may suffer while on the site, (2)
limiting a citizen's access to that area on the site related to the complaint, (3) limiting the number
of persons who may accompany an inspector.... OSM does not agree that Section 840.15 should
address these matters.... The question of operator liability for injuries a person may suffer while
on a mine site is one to be decided under general principles of State tort law."


ATTACHMENTS
1.   44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule. 
     Section 840.15  Public Participation.
     Section 842.12  Citizens' requests for Federal inspections. 
2.   46 FR 58464 (DECEMBER 1, 1981). Proposed rules. Federal inspection and enforcement.   
3.   47 FR 35620 (AUGUST 16, 1982). Final rules. Inspection and enforcement.


Research conducted by: Joyce Zweben Scall

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