Mine Audits: Rights, Obligations And Pitfalls - Introduction

Views about the proper aim of public policy are, of course, matters of perspective and debate. Regardless of perspective, one would assume some consensus around the view that public policy ought to encourage mine operators to seek independent and critical assessments of worker safety and health at their operations through voluntary auditing. However, a review of the law on this topic shows that there is little to no manifestation of such a policy. Indeed, the balance of this paper, with a couple of exceptions, is devoted to the existing legal pitfalls that should be considered before a safety and health audit is conducted at a mine. While attorneys, particularly litigators like the author, might tend to focus on the potential problems that could arise from any given situation, the fact that most of this paper is devoted to potential legal concerns associated with auditing is a realistic reflection of the current state of the law. Specifically, this paper addresses the interplay between voluntary safety and health audits conducted at mines regulated by the Mine Safety and Health Administration (MSHA), and the administrative and civil legal issues related to such audits. The paper first provides an explanation of how and by whom an audit is conducted. The paper also addresses whether voluntary safety and health audits may be considered privileged and kept confidential in administrative and civil proceedings. Finally, selected legal issues related to such audits that could arise in administrative and civil litigation are discussed.1