Pit & Quarry, June 2013

Advance notice T he Federal Mine Safety and Health Act requires the Secretary of Labor to conduct frequent inspections and investigations in coal or other mines each year Furthermore In carrying out the requirements of this subsection no advance notice of an inspection shall be provided to any person Penalties are provided for advance notice violations as follows Unless otherwise authorized by this Act any person who gives advance notice of any inspection shall upon conviction be punished by fine imprisonment or both A recent Senate bill would extend penalties to federal and state inspectors as well as all private persons Congress originally included the provision based on reports that when inspectors arrived at certain mines miners would be alerted to fix violations For example it is illegal in coal mines to operate without ventilation curtains in place Miners however might believe coal can be produced more easily without ventilation curtains but this would be a grave violation Such violations increase explosion and black lung hazards but violations can be hidden from inspectors if someone in the mine gives notice to the working section that an inspector is on the property and may be en route Recent coal mine disasters have prompted MSHA to drastically enlarge its interpretation of advance notice to include all communications at a mine that would alert others to MSHAs presence At the same time MSHA has increased enforcement of the no advance notice provisions at all mines including cement and aggregates operations Security guards at mine gates have been told they cannot even notify the BY MICHAEL T HEENAN safety department that inspectors have arrived A right of inspector entry at any time without notice and without warrant is provided for in the act Capturing the mine phones and radios is often part of inspection procedure to physically prevent notice within the mine MSHA press releases frequently make reference to this procedure particularly in targeted impact inspections In enforcing this provision the government can seek injunctions in federal district court impose high civil penalties up to 220000 potentially per violation and bring criminal actions all of which are currently in vogue As just one example a recent news report Mine Safety and Health News March 4 2013 contains an item regarding David Huggart the former president of Masseys Green Valley Resource Group Pleading guilty to criminal conspiracy Huggart admitted that he and others at Massey conspired to violate health and safety laws and concealed those violations by warning mine personnel when MSHA inspectors were arriving to conduct inspections A continuing investigation is being conducted by the FBI the Department of Labor Inspector General and the Internal Revenue Service Criminal Division Currently Huggart faces up to six years in prison and a 350000 fine Sentencing is this month MSHAs expansive interpretation and enforcement of the advance notice provisions has caused great consternation in the industry but the structure of the law and a history of court rulings establishes that while the Department of Labor can easily seek injunctions against mine operators the reverse is not true Mine operators are confined to seek relief before the Most inspectors are not overly concerned about advance notice unless there is a blatant disregard of the prohibition Federal Mine Safety and Health Review Commission trial judge then review by the commissioners and then the U S Court of Appeals There is no provision for a preemptive challenge to enforcement and neither the commission nor the courts have been willing to entertain any such challenges Legal contests The only way mine operators have been able to get review of agency enforcement is by filing notices of contest of citations and orders before the Federal Mine Safety and Health Review Commission Over the years there have been a few attempts by companies to bypass the commission and go into Federal District Court but the cases have been routinely dismissed As for seeking commission review it would be a serious matter for a company to give advance notice deliberately in order to test a citation But if a company were to be cited for an inadvertent advance notice the citation or order could be challenged in a pre penalty notice of contest or a later civil penalty contest This is how all important issues are dealt with when companies find themselves aggrieved Notwithstanding the state of law enforcement on this issue citations for advance notice usually can be avoided through reasonable precautions At the request of some companies in one Continued on page 58 54 PIT QUARRY June 2013 www pitandquarry com