By Christa Lee Rock
Pop quiz: A team of Mine Safety and Health Administration (MSHA) inspectors arrive at a mine and introduce themselves to a security officer and mine foreman at the outside gate. The security officer announces on the mine phone that federal inspectors are on the property and asks the miners to “watch out and be careful.” The mine foreman then shuts down a conveyor belt from a switch in his office in order to ensure the inspectors’ safe passage through the area. Underground miners subsequently discuss the announcement of the inspectors’ presence on the mine phone. Who, if anyone, violated the Mine Act?
(A) No one violated the Mine Act because the inspectors did not announce their intention to visit before arriving at the gate.
(B) The security officer did not violate the Mine Act, but the mine foreman did.
(C) The security officer and the mine foreman violated the Mine Act because they provided advance notice to the miners underground of the inspectors’ presence at the site.
(D) The security officer, the mine foreman and the miners speaking on the mine telephone all violated the Mine Act’s provision against advance notice of inspections.
We devote lots of ink in this column to the sometimes unpredictable ways in which MSHA attempts to expand its jurisdiction and find violations of more regulations by more people in more places. So, frequent readers will not be surprised to learn the correct answer, at least according to a recent MSHA Public Information Bulletin and court and commission rulings, to our quiz is “D.” What is even more surprising, however, is as little as a decade ago, the correct answer might have been “A”—even according to the most rigid of MSHA inspectors. Even more remarkable, this about-face is not the result of a change in the Mine Act, but of MSHA’s ever-changing interpretation of it.
The entire controversy swirls around two provisions of the Mine Act relating to advance notice of mine inspections. Section 103(a) of the Mine Act gives MSHA a “right of entry” to mines to conduct inspections, and states that, “in carrying out the requirements of this subjection, no advance notice of an inspection shall be provided to any person. . . .” 30 U.S.C. § 813(a). Section 110(e) of the Mine Act provides for a $1,000 fine and up to six months’ imprisonment to “any person who gives advance notice of any inspection to be conducted under this chapter. . . .” 30 U.S.C. § 820(e).
The language of Section 103(a) suggests that, since MSHA inspectors are the persons “carrying out” the Act’s inspection requirements, those same inspectors are the only persons prohibited from giving “advance notice” of any mine inspection. See 30 U.S.C. § 813(a). Indeed, early cases addressing the Act’s “advance notice” prohibition confirmed this provision bars inspectors from tipping off mine operators or members of miners’ unions of future inspections. Those cases also took the words “advance notice” to mean a warning of an inspection before MSHA was even on the property.
However, in the last 12 years, MSHA has begun to crack down on operators whose miners discuss the presence of an inspector even after the inspector is on site. In the case of Topper Coal Co., 20 FMSHRC 344 (Apr. 30, 1998), the mine president called the working section of the mine to say two federal inspectors were on the property and to “watch out and be careful.” At a hearing, the mine president testified his warning was intended to protect the inspectors from being run over by a shuttle car. The FMSHRC disagreed, holding the president’s “warning of the inspection clearly is sufficient to establish a violation of the ‘no advance notice’ language [of the Mine Act].”
Similarly, in the 2003 case United States v. Kenamerican Resources, Inc., the government indicted a coal company for providing “advance notice” of inspection when, among other things, a mine superintendent “utilized a stop switch in his office for the purpose of stopping conveyor belts … for the purpose of precipitating phone calls from mine foremen” so he could tell them inspectors were on site. All defendants were convicted of violating Section 110(e)’s “advance notice” provision, suggesting even non-verbal communication can violate the prohibition.
MSHA issued an August 26, 2010, Public Information Bulletin to remind mine personnel and inspectors the Mine Act “prohibits giving advance notice to inspections conducted by MSHA inspectors.” PIB P10-15, available at http://www.msha.gov/REGS/COMPLIAN/Pib/2010/pib10-15.asp. This announcement still doesn’t clarify the meaning of “advance notice.” In fact, the PIB may confuse the issue even more. For instance, the PIB notes during two April 2010 inspections, “MSHA discovered that operators had warned miners working underground of MSHA inspectors either at or en route to the mine site.”
As a recent case in Kentucky suggests, mine employees should avoid discussing the presence of mine inspectors in any way once MSHA personnel arrive at the mine. In Solis v. Manalapan Mining Co., a U.S. District Judge enjoined a mine operator from providing any “advance notice” of mine inspections. In that case, MSHA inspectors seized control of mine telephones, only to overhear unidentified persons discussing the impending inspections with underground miners. In non-binding portions of a May 2010 opinion, the judge took a broad view of the “advance notice” provision, suggesting any discussion of the inspection before inspectors reach the working areas of the mine “prevent[s] meaningful inspections.”
This raises the obvious question of whether a gag on miner discussions of imminent inspections makes anyone safer. It also raises legal questions as to what can be said during an ongoing inspection and when miners must be notified that additional personnel are coming into an area where there is ongoing work and the notification is part of the company’s established safety policy. Citations for violation of the “advance notice” prohibition are certainly subject to challenge until the agency makes clear exactly what “advance notice” is—and why the agency has done such an about-face in its enforcement of this provision. In the meantime, expect to answer questions at your own mine as you did this pop quiz: MSHA is likely to find more violations of more regulations by more people in more places.
Rock is an associate in the Denver office of Patton Boggs LLP. She can be reached at 303-894-6141 or at firstname.lastname@example.org.