MSHA STRESSES ILLEGALITY OF ADVANCE NOTICE OF INSPECTION ACTIVITY

For clients and friends of Jackson Kelly PLLC
Volume 6, Number 23
©2010 Jackson Kelly PLLC
 

On August 26, 2010, the Mine Safety and Health Administration (“MSHA”) reminded the mining industry that the Mine Act prohibits giving advance notice of inspections conducted by MSHA inspectors. MSHA issued Program Information Bulletin No. P10-15 (“PIB”) which emphasizes that Section 103(a) of the Mine Act prohibits “any person” from giving advance notice of inspections. The PIB also warns the mining community of the potential consequences for anyone who violates the advance notice prohibition. Among the sanctions available to MSHA are:

• a civil action in federal court to obtain an injunction prohibiting future violations;
• a criminal action in federal court with fines of up to $1000 or imprisonment or both;
• a civil monetary penalty against the mine operator; and
• similar sanctions against agents of mine operators who knowingly permit or order the advance notice of inspection activity.

In a news release accompanying the PIB, Assistant Secretary for Labor, MSHA, Joe Main stated, “Mining personnel who give advance notice are showing contempt for the law and for the safety and health of miners.”

MSHA’s PIB acknowledges that some advance notice of inspection activity is permitted in limited circumstances, and the PIB specifically identified Section 103(g) hazard complaints alleging imminent dangers as one example. However, the issue of when advance notice of an inspector’s presence on mine property is permissible is not so simple. MSHA’s Program Policy Manual (the “PPM”) acknowledges that the Mine Act does not prohibit advance notice of investigative activities which can be distinguished from direct enforcement activities. The PPM specifies eight specific types of investigations, including special investigation activities, in which advance notice is allowed. In addition, MSHA’s PPM also permits advance notice of inspector’s direct enforcement activities when such notice is necessary to make preparations essential to carry out enforcement activities. The PIB leaves unanswered a number of questions regarding advance notice.

Mine operators need to be aware that:

• MSHA is taking an increasingly strict view of the prohibition against advance notice.
• MSHA inspectors will be focused on the issue of advance notice of their activities.
• The issues of when advance notice is permitted under the Mine Act and what is “advance notice” are open to interpretation.
• MSHA has announced its willingness to invoke criminal, as well as civil, sanctions for violations of the advance notice prohibition.

Program Information Bulletin No. P10-15 may be found here:

http://www.msha.gov/REGS/COMPLIAN/Pib/2010/pib10-15.asp

MSHA Program Policy Manual discusses the prohibition against advance notice in Volume 1, at pages 9-11. A copy of that document may be found here:

http://www.msha.gov/REGS/COMPLIAN/PPM/PDFVersion/PPM%20Vol%20I.pdf

Jackson Kelly  PLLC attorneys will follow this issue as it develops through enforcement actions and judicial decisions.

 

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado 

Responsible Attorney
Karen L. Johnston
(303) 390-0003
kjohnston@jacksonkelly.com

For more information, contact: 

Laura E. Beverage (303) 390-0003	Karen L. Johnston (303) 390-0003
R. Henry Moore (412) 434-8801	Michael T. Cimino (304) 340-1000

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