COALEX REPORT 349

	Coalex Report 349

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 - 349
February, 1999

Donald Pflederer
Land Reclamation Division
Office of Mines and Minerals
Department of Natural Resources
524 S. Second Street
Springfield, Illinois 62701-1787

TOPIC: RIGHT OF ENTRY - INSPECTOR'S PRESENTATION OF CREDENTIALS 

INQUIRY: An inspector conducted an onsite inspection of a permitted operation, took a water
sample and wrote an NOV. The inspector had not presented his credentials or identified himself
prior to conducting the inspection. Is the NOV still valid? Please locate Interior administrative
decisions and any other material that address this issue.

SEARCH RESULTS: Using the COALEX Library and other materials in LEXIS, a number of relevant
items were identified. These include a Federal Register preamble, an OSM directive and Interior
Administrative Law Judge (ALJ) and Appeals Board (IBLA and IBSMA) decisions. Excerpts from
the most relevant documents are provided below. Copies of all of the relevant retrieved
documents are attached (See the ATTACHMENTS section).

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

47 FR 35620 (AUGUST 16, 1982).  Final rule.  Inspection and enforcement.
   See the preambles to Sections 840.12 (State Regulatory Authority Inspection and Enforcement:
Right of Entry) and 842.13 (Federal Inspections and Monitoring: Right of Entry).


OSM DIRECTIVE, Subject No. INE-1, Transmittal No. 162, "Presentation of Credentials at
Minesites" (Issued  3/18/83).
   This directive establishes the policy regarding proper presentation of credentials by inspectors.
Relevant sections are excerpted.

POLICY-PROCEDURE:
3.a. Background: "Right of entry in extraordinary circumstances without prior presentation of
credentials was deemed appropriate by the Interior Board of Surface Mining and Reclamation
Appeals in CONSOLIDATION COAL CO. v OSM (2 IBSMA 21, February 13, 1980) and upheld by
the U.S. District Court in CONSOLIDATION COAL CO. v WATT (Civ. No. 80-3037, Slip Opinion,
February 8, 1982).

"b. Procedure. In the absence of extraordinary circumstances, presentation of credentials should
be made at the earliest practical opportunity, normally by proceeding to the minesite office (or
the first appropriate person) upon arrival. If an inspector briefly leaves the permit area,
presentation of credentials before reentering, unless specifically requested, is not necessary.

"(1) Exceptions.
"(a) Extraordinary Circumstances. Credentials need not be presented when an inspector
reasonably believes that doing so would provide the operator with notice that would thwart the
inspector's ability to determine whether or not a violation existed.... In such a case, the inspector
should present credentials subsequent to completing the inspection...."


CONSOLIDATION COAL COMPANY, IBSMA 80-15, 2 IBSMA 21 (1980).
"Right-of-entry without prior presentation of credentials is warranted in order to minimize
instances in which an operator's violation may escape detection. Each case where such an entry
occurs must be measured against its own facts to determine whether, objectively, entry without
prior presentation of credentials was justified."


CONSOLIDATION COAL CO. v OSM, IBSMA 79-25, 1 IBSMA 273 (1979).
"[F]or the safe and orderly operation of their mines, operators are entitled to know who is on their
property and when. Presentation of credentials at the earliest practical opportunity and whenever
requested to do so after each entry facilitates such safety and orderliness and does not impose
undue burdens on OSM's inspection program."


CAPITOL FUELS, INC., IBSMA 80-27, 2 IBSMA 261 (1980).
"An OSM inspector who, after a reasonably diligent search, does not find a mine employee with
some degree of management or supervisory authority and who is not asked for identification by
other employees, may conduct an inspection without the prior presentation of credentials."


WILLIAM M. JOHNSON, IBSMA 81-25, 3 IBSMA 377 (1981).
   In citing to CONSOLIDATION COAL and CAPITOL FUELS decisions the Board determined that a
balance had been struck "between a mine operator's interest in the safe and orderly conduct of
mining operations, and the Department's interest, on behalf of the public at large, in avoiding
operator subterfuge or unwarranted delays in mine inspections."



ATTACHMENTS
A.   47 FR 35620 (AUGUST 16, 1982).  Final rule.  Inspection and enforcement.
B.   OSM DIRECTIVE, Subject No. INE-1, Transmittal No. 162, "Presentation of Credentials at
     Minesites" (Issued  3/18/83).
C.   CONSOLIDATION COAL COMPANY v WATT, Civil No. 80-3037, 1982 U.S. Dist. LEXIS
     12273 (S.D. Ill February 8, 1982).
D.   CONSOLIDATION COAL COMPANY, IBSMA 80-15, 2 IBSMA 21 (1980).
E.   CONSOLIDATION COAL CO. v OSM, IBSMA 79-25, 1 IBSMA 273 (1979).
F.   CONSOLIDATION COAL CO. v OSM, Docket No. IN 9-9-R (November 28, 1979).
G.   CONSOLIDATION COAL CO. v OSM, Docket No. In 9-9-R (May 29, 1979)
H.   CAPITOL FUELS, INC., IBSMA 80-27, 2 IBSMA 261 (1980).
I.   CAPITOL FUELS, INC. v OSM, Docket No. CH 9-174-R (1980).
J.   WILLIAM M. JOHNSON, IBSMA 81-25, 3 IBSMA 377 (1981).
K.   WILLIAM M. JOHNSON v OSM, Docket No. NX 0-160-R (1982).
L.   WILLIAM M. JOHNSON v OSM, Docket No. NX 0-160-R (1980).
M.   GRAFTON COAL COMPANY, INC., IBSMA 80-84, 3 IBSMA 175 (1981).
N.   GRAFTON COAL COMPANY, INC. v OSM, Docket No. CH 0-175-R (1980).
O.   FIRCHAU MINING, INC. v OSM, IBLA 86-199, 101 IBLA 144 (1988).
P.   FIRCHAU MINING, INC. v OSM, Docket No. DV 5-4-R (1985).
Q.   AMCORD, INC. v OSM, Docket No. TU 7-16-R (1988).
R.   C & N COAL CO. v OSM, Docket No. NX 3-16-P (1985).
S.   TENNESSEE CONSOLIDATED COAL CO. AND WALNUT COAL CO. v OSM, Docket Nos. NX
     1-87-R, NX 1-147-P (1985).
T.   FOUR RIVERS COAL CO., INC. v OSM, Docket Nos. IN 0-43-R, IN 1-8-P (1983).
U.   FOUR RIVERS COAL CO., INC. v OSM, Docket No. IN 9-6-P (1979).
V.   G & M COAL CO. v OSM, Docket No. NX 0-192-R (1982).
W.   S. KELLY INDUSTRIES v OSM, DOCKET NO. CH 0-252-R (1980).
X.   INTERNATIONAL MIDWEST MINING v OSM, Docket No. IN 0-24-P (1980).
Y.   W.W. COAL CO. v OSM, Docket No. NX 9-10-P (1979).


Research conducted by: Joyce Zweben Scall

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