OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 3

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 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 3

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."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 3

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).